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HomeMy WebLinkAbout07 - PH-1 - An Ordinance for an Extension to and Ame - 4/6/20211 CITY COUNCIL AGENDA REPORT MEETING DATE: APRIL 6, 2021 ITEM NUMBER: PH-1 SUBJECT: AN ORDINANCE FOR AN EXTENSION TO AND AMENDMENT OF THE SAKIOKA FARMS DEVELOPMENT AGREEMENT DA-99-02 (DA-20-03), SAKIOKA LOT 2, 14850 SUNFLOWER AVENUE DATE: MARCH 18, 2021 FROM: DEVELOPMENT SERVICES DEPARTMENT/PLANNING DIVISION PRESENTATION BY: KATELYN WALSH, ASSISTANT PLANNER FOR FURTHER INFORMATION CONTACT: KATELYN WALSH (714) 754-5276 katelyn.walsh@costamesaca.gov RECOMMENDATION: Staff recommends that the City Council: 1. Find the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15061 (b) (3) (general rule) of the CEQA Guidelines because the amendment is merely a time extension for an existing development agreement and does not change the underlying project. In addition, the relevant environmental analysis contained in the approved 2015-2035 General Plan EIR (SCH No. 2015111053, June 2016) is still valid and applicable to the project such that no further environmental review is required; and 2. Give first reading to Ordinance 2021-xx to approve the time extension and amendment to Development Agreement 99-02 (Development Agreement 20-03). APPLICANT OR AUTHORIZED AGENT: The applicant and authorized agent is George Sakioka, representing the property owner, Roy K. Sakioka & Sons. 2 PROJECT DESCRIPTION: Proposed Amendment to Development Agreement DA-99-02 (DA-20-03) The applicant is proposing an amendment to the Sakioka Farms Development Agreement to allow for a 10-year time extension. The term of the Lot 2 Agreement expires on May 15, 2021. The proposed amendment will extend the term of the Agreement for 10 years until 2031. The draft Development Agreement 20-03 reflecting the 10-year time extension is provided as Attachment A to the Ordinance. BACKGROUND: Planning Commission Action On March 8, 2021, on a 6-0 vote (Commissioner Stephens recused), the Planning Commission recommended that the City Council approve the proposed time extension and amendment to Sakioka Farms Development Agreement 99-02 (DA-20-03) recommending the following additions to the Development Agreement: 1. Include a commitment for the applicant to provide affordable housing with the residential component to the project; 2. Identify the property as a “housing opportunity site” with an identified number of units and density in the site inventory list for the upcoming 2021 Housing Element Update and General Plan Land Use Update; and 3. Amend the Development Agreement to clarify that if any subsequent zoning actions resulting from the adoption of the 2021 Housing Element are approved by the City, and are approved by the public in compliance with Measure Y, as applicable, that the applicant would build to the higher density and number of total units including any required affordable housing units. The Planning Commission’s recommended additions to the Development Agreement have been discussed with the applicant; the applicant has indicated that they are not amenable to including these additional commitments because the specific requirements of the Housing Element Update and any subsequent actions are not yet known. The Planning Commission’s recommendations are discussed in the Analysis section of this report. In addition, the Planning Commission discussed the following topics at the meeting:  Time Extension: discussed the time extension request and the reasons why the property has not been developed in the last 20 years since approval of the Development Agreement;  Public Benefits: discussed the remaining developer obligations for Lot 2 and what public benefits the City would lose if the Agreement expires; 3  Development Capacity: discussed the development capacity for the site under the terms of the original Agreement and how the General Plan and North Costa Mesa Specific Plan amendments in 2011 and 2016 changed the development opportunities for the site;  Trip Budgets: discussed the higher trip budgets for the site that were in place when the Development Agreement was approved vs. the trip budgets that regulate development intensity at the project site under today’s General Plan and zoning;  Housing Element: expressed concerns with the City’s high RHNA allocation and the upcoming adoption of the Housing Element, whether the site should be identified as a housing opportunity site, and how the extension might affect development decisions under a future General Plan and zoning scenario;  Affordable Housing: discussed the affordability component for the site in the North Costa Mesa Specific Plan and whether the Agreement should be amended to include a commitment from the developer to provide affordable housing; and  Measure Y: discussed the applicability of Measure Y. The March 8, 2021 Planning Commission staff report, meeting video, and public comments received prior to the meeting can be found at the following links: Staff Report: http://ftp.costamesaca.gov/costamesaca/planningcommission/agenda/2021/2021-03- 08/PH-2.pdf Video: https://costamesa.granicus.com/player/clip/3677?view_id=10&redirect=true Public comments: http://ftp.costamesaca.gov/costamesaca/planningcommission/agenda/2021/2021-03- 08/PH-2-pc.pdf Development Agreement DA-99-02 Development Agreement 99-02 is the original agreement for the Sakioka Farms Lot 1 and 2 sites located north of the 405 Freeway. Approved on November 1, 1999 and executed between the City and Sunflower Partners and Roy K. Sakioka & Sons (Developers), this agreement originally included Sakioka Farms Lot 1 (40 acres) located east of Sakioka Drive, north of Anton Boulevard, and south of Sunflower Avenue; and Sakioka Farms Lot 2 (33 acres) located north of Interstate 405, west of Main Street and State Route 55, east of Experian Solutions, and south of Sunflower Avenue. A vicinity map is provided as Attachment 4. The Development Agreement (Agreement) facilitated dedication of the fee simple interest in land needed for freeway on- and off-ramps which cross a portion of Sakioka Farms Lot 2 (along the south side of Anton Boulevard). The Agreement also recognized previous land dedications made by the developer for other public improvements (i.e., streets and the Metro Fire Station site). In exchange for these public benefits, the Developer received rights to 4 develop for a period of 20 years under land use regulations effective at the time of the Agreement (i.e., General Plan, Zoning Code, and the North Costa Mesa Specific Plan) for Sakioka Farms Lots 1 and 2. On February 17, 2004, the City approved a partial assignment of the Agreement to reflect a division of the ownership within the Sakioka families. The “Assignment and Assumption of Development Agreement for Sakioka Farms” reflects the ownership changes and allocates the obligations of the Developer under the Development Agreement among the current owners of the Property (Attachment 6). Since 2004, Lot 1 has been developed with an 890- unit apartment community (The Enclave). All obligations related to Lot 1 have been met and remaining provisions of this agreement are only applicable to Lot 2. The effective date of the Agreement is May 15, 2001, which is based on the recorded date of the easement deeds. The Agreement is effective for 20 years from the effective date noted above, until May 15, 2021, unless otherwise extended by the parties. The Agreement has not been amended since its original adoption by City Council on November 15, 1999. Project Site Sakioka Lot 2 is a 33-acre parcel located in the Town Center area of the City adjacent to Anton Boulevard (Area 8 of the North Costa Mesa Specific Plan). Lot 2 is owned by Roy K. Sakioka & Sons. This site is designated Urban Center Commercial by the General Plan and is zoned Planned Development Commercial (PDC). The property is located in the North Costa Mesa Specific Plan. The site is designated in the Specific Plan for “planned development”, including mixed-use, residential, and/or commercial office development. Lot 2 is currently in agricultural production and is developed with one single-family home located along Sunflower Avenue. (On January 6, 2021, an application was submitted by Tanaka Farms LLC to allow farm and U-pick activities on the Sakioka Property. The application is currently under review.) Development Agreement Obligations on Part of the Developer The applicant has not undertaken any development activities on Lot 2; the site remains an agricultural use. Therefore, the remaining obligations of the Agreement as they relate to this parcel have yet to be fulfilled. The pending developer obligations include the dedication of a maximum one-acre site for a future urban rail transit station, the reservation of land for an urban rail track line, and the payment of parkimpact fees for subsequent development on Lot 2. These benefits are described in Section 2.1 of the Agreement and are discussed in detail in the March 8th Planning Commission staff report (Attachment 1). Development Agreement Obligations on Part of the City In accordance with Section 2.2 of the Agreement, the City has assured the Developer rights for 20 years to carry out and complete a project in accordance with the provisions of the Agreement and subject to existing land use regulations in effect at the time of the Agreement, existing development approvals, and future development approvals (i.e. master plan, subdivision map and building permits necessary to complete the project). The existing 5 development approvals referenced in the original Agreement included the City of Costa Mesa General Plan, all Elements (including General Plan Amendment GP-98-08 and all other amendments approved on or before the effective date of the Agreement) and the North Costa Mesa Specific Plan (SP-94-01) (including Specific Plan Amendment SP-98-04 and all other amendments approved on or before the effective date of the Agreement). Development Standards per Original Agreement The original Agreement did not include any site plan approvals; the purpose of the Agreement was to establish the development capacity for the site, subject to future approvals consisting of a subdivision map, master plan, building permits and other ancillary permits outlined in Exhibit C of the original Agreement (Attachment 5). The existing development approvals referenced in the original Development Agreement allow for a maximum Floor Area Ratio (FAR) of 0.50 for retail uses and 0.60 for office uses. The approved trip budget under the Agreement is 1,588 a.m. peak hour trips and 1,562 p.m. peak hour trips. If the site is developed as a mixed-use project with a residential component, the maximum number of residential units would be 660 units (including any density bonus). In addition, the total building intensity for the entire site may not exceed 863,000 square feet; residential square footage is counted towards the maximum allowable building square footage. The maximum building height is 180 feet (approximately 12 stories). Table 1 summarizes the approved development capacity based on the existing development approvals under the original Development Agreement. Table 1 – Development Summary for Lot 2 under Original Development Agreement Total Acres: 33 acres General Plan : Urban Center Commercial Zoning: PDC Maximum Intensity: 0.50 FAR – Retail 0.60 FAR – Office Maximum SF1: 863,000 sf Maximum Density: 20 dwelling units per acre (DU/AC) Trip Budget: 1,588 a.m. peak hour trips 1,562 p.m. peak hour trips Maximum Building Height: 12 stories/180 feet (south of collector street) 4 stories/60 feet (north of the collector street) 2 stories/30 feet – Commercial uses that are allowed to encroach into the setback for Anton Boulevard. 1 Residential square footage is counted towards the maximum allowable square footage. 2 The development of the site was described in the context of either a commercial or mixed- use development in the 1994 North Costa Mesa Specific Plan. Since adoption of the Agreement, there have been amendments to the General Plan and North Costa Mesa Specific Plan that allow greater development flexibility for Lot 2 as discussed below. 6 General Plan and North Costa Mesa Specific Plan Amendments Following the adoption of the Agreement, the trip budgets for Lot 2 were adjusted as part of the 2000 General Plan Update. Consequently, the trip budgets that were in place when the Agreement was adopted were higher than the trip budgets that limit development intensity at the project site under today’s standards. The following is a comparison of the trip budget for the project site per the Agreement and as currently allowed per 2015-2035 General Plan. Trips (AM Peak Hour) (Trips) PM Peak Hour Development Agreement 1,588 1,562 2015-2035 General Plan 1,062 (-526) 1,407 (-155) In addition, the property is located in the North Costa Mesa Specific Plan, which regulates land uses for the subject property. Since the adoption of the North Costa Mesa Specific Plan by the City Council in July 1994, the plan has been amended twice as it applies to Lot 2:  On November 15, 2011, the City approved General Plan Amendment GP-11-02 and Specific Plan Amendment SP-11-01 to allow greater development flexibility for Lot 2 without changing the adopted trip budgets. The flexible standards included changing Floor Area Ratio (FAR) limits to maximum 1.0 FAR for non-residential development, relying on the trip budgets to limit development intensity for the site. The amendment also established a maximum density of 28 dwelling units per acre for the residential component of a mixed-use development.  On September 6, 2016, the City approved Specific Plan Amendment SP-16-01 to update development standards for Lot 2 related to building height and maximum density to be consistent with the development intensities included in the 2015-2035 General Plan. With the 2015-2035 General Plan, the allowable density for an independent residential development was increased to 80 du/ac. The trip budgets and the overall FAR for non-residential development remained unchanged. Table 2 provides a development summary for Lot 2 per the 2015-2035 General Plan and amended North Costa Mesa Specific Plan: Table 2 - Development Summary for Lot 2 per the 2016 General Plan and North Costa Mesa Specific Plan Total Acres: 33 acres General Plan : Urban Center Commercial Zoning: PDC Maximum Intensity: 1.0 FAR (applicable to non-residential development only) Maximum Density1: 28 DU/AC for residential component of mixed use, or 80 DU/AC for a stand-alone residential project Trip Budget2: 1,062 a.m. peak hour trips 1,407 p.m. peak hour trips 7 Maximum Building Height3: 8 stories/120 feet (south of collector street) 4 stories/60 feet (north of the collector street) 2 stories/30 feet – Commercial uses that are allowed to encroach into the setback for Anton Boulevard. 1 The maximum number of dwelling units (including any density bonuses) is 660 units. 2 Building intensity for aggregate development shall not exceed maximum allowable development set forth by the trip budget in the North Costa Mesa Specific Plan. 3 Maximum building height of 8 stories per Airport Land Use Determination dates May 26, 2016 and as reflected in 2015-2035 General Plan. Based on the above, the maximum residential density is 28 dwelling units per acre for the residential component of a mixed-use development on a single legal parcel or a maximum of 80 dwelling units per acre for an independent residential development that incorporates affordable housing (See "Affordable Housing” discussion below). An independent residential development is a development in which a separate legal parcel (or parcels) is entirely developed as a residential use and therefore does not include commercial uses on the same legal parcel. Under the scenarios described above, the 33-acre site could be developed as a mixed-use property, or could be subdivided to allow an independent residential development on a portion of the site with the remainder developed for commercial uses or mixed-use development. The property could also be developed for commercial use. Regardless of the configuration, the trip budget and the cap at 660 residential units would apply. The aforementioned amendments were approved after the effective date of the Agreement and are not specifically referenced in the Development Agreement for Sakioka Farms. This was discussed at length at the March 8th Planning Commission meeting. While the Agreement does not specifically reference the amended City documents, the Agreement includes a provision (Section 2.2 (ii)) that can be interpreted and relied upon to allow the applicant the option to develop a project subject to the 2016 General Plan and Specific Plan (i.e. regulations in place today) and also subject to providing the remaining public benefits in the Agreement. This option is discussed in detail later in this report. ANALYSIS: Time Extension Request The Agreement is set to expire on May 15, 2021. As mentioned, Sakioka Lot 1 has been fully developed with The Enclave apartments, but Lot 2 is still vacant, and development of the property will not be completed before the expiration. Consequently, the applicant is requesting a 10-year time extension for the Agreement. As previously mentioned, the developer has delivered certain easements and fee interests in land needed for freeway on- and off-ramps and a private road, and has dedicated certain rights of way for City bus turnouts. However, the public benefits related to the urban transit rail station and track reservation have not been realized. (This is discussed in detail in the March 8th Planning Commission staff report). As a result, approving an extended term will allow the City the opportunity to benefit from the remaining Developer obligations that were negotiated in the Development Agreement, should a project be developed within the next 10 8 years and should the circumstances under which the urban rail transit dedication is required come to fruition. The extension would also give the option for the property to be developed based on existing regulations for the next 10 years, even if the City amended those regulations in the future. Both parties acknowledge that the development of the property depends on a number of factors including, development and finalization of site plans and building programs, market demand and supply, the availability of financing, interest rates, and similar factors. Therefore, staff believes that a 10-year extension is warranted, when accounting for time considerations for the developer to prepare development plans and obtain all necessary future development approvals, including, but not limited to, a Master Plan, Subdivision Map, and issuance of building permits. Development Rights Established in Development Agreement Under the current terms of the Agreement, the developer’s rights to develop the property are subject to the development approvals that were in place prior to the effective date (May 15, 2001) of the Agreement. However, since adoption of the Agreement, there have been amendments to the General Plan and North Costa Mesa Specific Plan that allow greater development flexibility for Lot 2, including updated development standards related to floor area ratio, building height and maximum density. Section 2.2 (ii) of the Agreement is related to the City’s consideration and approval of requested changes in the project that may occur after the effective date of the Agreement and states in part: “The City acknowledges the Developer’s right to seek additional density, intensity, or uses on the Property. In no event, however, shall Developer have the right hereunder to increase density, intensity, or uses in the Project without fully complying with the procedures in the Existing Land Use Regulations. No change to the Project which is consistent with the Existing Land Use Regulations, or which is approved by the City in accordance with the Existing Land Use Regulations, shall require an amendment of this Agreement and, in the event any change in the Project proposed by Developer is approved by the City, the references in this Agreement to the Project or applicable portion thereof shall be deemed to refer to the Project as so changed.” This section applies to future changes in the project; this provision may be interpreted and relied on in the future to provide the applicant the option to develop a project subject to the 2015-2035 General Plan and 2016 North Costa Mesa Specific Plan (or other future amendments), if a project is developed within the extended 10-year term of the Agreement. Alternatively, the City Council has the option to memorialize the updated General Plan and Specific Plan documents approved by City Council. If the Council elects to memorialize the amendments instead of relying on Section 2.2 (ii) in the future, staff recommends that the City Council incorporate the following language in the draft Development Agreement to clarify the point: 9 EFFECTIVE DATE. Section 3.1 of the Development Agreement is hereby deleted in its entirety and replaced with the following: “This Agreement shall be effective as of May 15, 2001 (the “Effective Date”). However, notwithstanding anything to the contrary in this Agreement, including but not limited to Exhibit B to this Agreement (and consistent with Section 2.2 (ii) of this Agreement), the “City of Costa Mesa General Plan (2015-2035)” as adopted June 21, 2016 and the “North Costa Mesa Specific Plan” as adopted on September 6, 2016 shall be the versions of these documents included in the terms "Existing Land Use Regulations", “Existing Development Approvals”, and “Project” as those terms are utilized in this Agreement.” This language reflects discussions with the applicant and could be included as amended text in the Development Agreement (Attachment A to Ordinance) if desired by City Council. If the City Council wishes to memorialize the General Plan and Specific Plan updates in the agreement using the above language, the 2015-2035 General Plan and the 2016 North Costa Mesa Specific Plan would become the basis for development of Lot 2 and the developer would no longer have the option to develop the project under the development approvals referenced in the original Agreement (refer to Table 1).. If the Agreement expires, the 2016 General Plan or Specific Plan (and any future amendments) and other regulations and requirements in place at the time would apply; however, the City would not derive the benefits of the remaining developer obligations in the Agreement. Future Development Post-Housing Element Update The City is required by State law to adopt a compliant Housing Element by October 2021. This update will cover the housing planning period between 2021 and 2029, often referred to as the 6th Cycle, and will identify specific housing programs and actions that will be implemented during the planning period to achieve the City’s housing goals. Zoning actions necessary to implement the adopted Housing Element such as rezones or General Plan Amendments would need to occur within three-years of the adoption of the Housing Element, by October 2024. If the Agreement were extended, under Section 2.2 (ii) the applicant could opt to develop a project under an amended General Plan or North Costa Mesa Specific Plan pursuant to the Housing Element Update, subject to the regulations and requirements in place at that time and subject to the remaining public benefits included in the Agreement. However, the applicant would also have the option to develop a project under the original Agreement and subject to those regulations and requirements in place as of 2001, (or the 2016 documents if the City Council memorializes the 2016 updates in the Agreement as described earlier in the report). Consequently, as described earlier in this report, the Planning Commission recommended adding provisions to the Agreement committing the City to identifying the property as a “housing opportunity site” in the upcoming Housing Element Update with an identified number 10 of units and density for the site, and (if a project was developed under an extended Agreement) committing the applicant to developing the number of units identified at the higher density and including any affordable housing units required under future General Plan and zoning regulations. The applicant has indicated that they intend to participate in the Housing Element Update and are interested in identifying this property as a housing opportunity site, but are not amenable to these changes as part of their request for an extension of the Agreement because the specific requirements associated with the Housing Element Update are yet unknown. Affordable Housing Under the original Agreement, the maximum number of dwelling units (including any density bonuses) for Sakioka Lot 2 is 660 units. The maximum base density for the subject property is 528 housing units; in order to be granted a 25% density bonus (132 dwelling units), the developer would have to provide affordable housing pursuant to one of the following three options shown in the table below. The North Costa Mesa Specific Plan specifies that affordable housing shall remain affordable for a minimum 30 years. Below is a summary of the density bonus program for Lot 2, as contained in the 2016 North Costa Mesa Specific Plan. Under the original Agreement, and in the 2016 North Costa Mesa Specific Plan, the project includes an affordability component of 132 units, but the developer may elect not to develop 11 the site to full capacity under the density bonus and opt not to include affordable housing. Consequently, Planning Commission recommended that the City Council include a commitment in the Development Agreement for the developer to provide affordable housing with the residential component of any project, should the property by developed in the next 10 years under an extended Agreement. If the Agreement were extended, and the applicant opted to develop under the 2016 General Plan and zoning regulations under Section 2.2 (ii) of the Development Agreement, the affordable requirements would be the same as they were under the original Agreement (528 maximum base density with 25% density bonus option). Further, if the Agreement were extended, and if an inclusionary housing ordinance was adopted along with future General Plan and zoning regulations, the developer would need to comply with the inclusionary housing ordinance if they opted to develop per the future General Plan and zoning regulations under Section 2.2 (ii). If the Agreement were not extended and expired, the property would be subject to the existing regulatory environment in place at the time, including any inclusionary housing requirements. However, the City would not derive the benefits of the remaining developer obligations in the Agreement. JUSTIFICATIONS FOR APPROVAL: The applicant is not proposing additional project changes or public benefits beyond those agreed to as part of the original Agreement as part of the time extension request. State Law requires that amendments to Development Agreements be adopted by Ordinance. The draft City Council Ordinance for approval of the Development Agreement amendment is included as Attachment 7. Following are justifications for approval of the proposed project:  Proposal does not modify the previous approvals, other than the time extension. The effective date of the Agreement is May 2001. Other than extending the life of the development agreement by 10 years, no other changes are proposed. The extended term will allow the City the opportunity to benefit from the remaining Developer obligations, should the project be developed within the next 10 years.  Proposal is in compliance with the broader goals of the General Plan. The proposal is in conformance with the applicable General Plan and land use designation. 12 ENVIRONMENTAL DETERMINATION: The project has been reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City environmental procedures. The proposed time extension was found to be categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15061 (b) (3) (general rule) of the CEQA Guidelines because the amendment is merely a time extension for an existing development agreement and does not change the underlying project. In addition, the relevant environmental analysis contained in the approved 2015-2035 General Plan EIR (SCH No. 2015111053, June 2016) is still valid and applicable to the project such that no further environmental review is required. PUBLIC NOTICE: Pursuant to Title 13, Section 13-29(d), of the Costa Mesa Municipal Code, three types of public notification have been completed no less than 10 days prior to the date of the public hearing: 1. Mailed notice. A public notice was mailed to all property owners and occupants within a 500-foot radius of the project site. The required notice radius is measured from the external boundaries of the property. 2. On-site posting. A public notice was posted on each street frontage of the project site. 3. Newspaper publication. A public notice was published once in the Daily Pilot newspaper. As of the date of this report, no written public comments have been received. Any public comments received prior to the April 6, 2021 City Council meeting will be provided separately. FISCAL REVIEW: Financial impact is not known at this time. LEGAL REVIEW: The ordinance for adoption of the amendment to the Agreement and the amendment to the Agreement have been approved as to form by the City Attorney’s Office. ALTERNATIVES: The City Council has the following alternatives: 1. Recommend Approval with any modifications. The City Council may request specific changes that are necessary to alleviate concerns. 13 2. Recommend denial of the Request. If the City Council believes that there are insufficient facts to support the findings for approval, City Council must deny and provide facts in support of denial. CONCLUSION: Planning Commission determined that the applicant has demonstrated good faith compliance with the provisions and conditions of Development Agreement 99-02 as they pertain to date and recommended additional language to be included in the Agreement related to affordable housing and the City’s Housing Element Update for City Council consideration. The proposed time extension would extend the Agreement for an additional 10 years until May 15, 2031. ________________________________ _________________________________ KATELYN WALSH JENNIFER LE Assistant Planner Director of Economic and Development Services ________________________________ _________________________________ CAROL MOLINA KIMBERLY HALL BARLOW Finance Director City Attorney Attachments: 1. March 8, 2021 Planning Commission Staff Report (without attachments) 2. Planning Commission Final Resolution (without attachments) 3. Applicant Letter 4. Vicinity Map and Zoning Map 5. Development Agreement DA-99-02 6. Assignment and Assumption of Development Agreement 7. City Council Ordinance adopting DA-20-03  Attachment A: Draft Development Agreement (DA-20-03) Property George Sakioka Owner: Roy K. Sakioka & Sons 14850 Sunflower Avenue Santa Ana, CA 92707 y�A MFPLANNING COMMISSION AGENDA REPORT MEETINGDATE: SUBJECT: EXTENSION TO AND AMENDMENT OF THE SAKIOKA FARMS DEVELOPMENT AGREEMENT DA-99-02 (DA-20-03), SAKIOKA LOT 2, 14850 SUNFLOWER AVENUE DATE: MARCH 3, 2021 FROM: DEVELOPMENT SERVICES DEPARTMENT/ PLANNING DIVISION PRESENTATION BY: KATELYN WALSH, ASSISTANT PLANNER FOR FURTHER KATELYN WALSH INFORMATION 714.754.5276 CONTACT: katelyn.walsh@costamesaca.gov RECOMMENDATION: Staff recommends that the Planning Commission adopt a Resolution to recommend that the City Council: 1. Find the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15061 (b) (3) (general rule) of the CEQA Guidelines because the amendment is merely a time extension for an existing development agreement and does not change the underlying project. In addition, the relevant environmental analysis contained in the approved 2015-2035 General Plan EIR (SCH No. 2015111053, June 2016) is still valid and applicable to the project such that no further environmental review is required; and 2. Give first reading to Ordinance 2021-xx to approve Development Agreement 20-03. APPLICANT OR AUTHORIZED AGENT: The applicant and authorized agent is George Sakioka, representing the property owner, Roy K. Sakioka & Sons. 1 BACKGROUND: Development Agreement DA-99-02 Development Agreement 99-02 is the original agreement for the 33-acre site located along the 55 Freeway. Approved on November 1, 1999 and executed between the City and Sunflower Partners and Roy K. Sakioka & Sons (Developers), this agreement includes Sakioka Farms Lot 1 (40 acres) located east of Sakioka Drive, north of Anton Boulevard, and south of Sunflower Avenue and Sakioka Farms Lot 2 (33 acres) located north of Interstate 405, west of Main Street and State Route 55, east of Experian Solutions, and south of Sunflower Avenue. A vicinity map is provided as Attachment 3. The Development Agreement (Agreement) facilitated dedication of the fee simple interest in land needed for freeway on- and off -ramps which cross a portion of Sakioka Farms Lot 2 (along the south side of Anton Boulevard). The Agreement also recognized previous land dedications made by the developer for other public improvements (i.e., streets and the Metro Fire Station site). In exchange for these dedications, the Developer received vesting rights for a period of 20 years under land use regulations effective at the time (i.e., General Plan, Zoning Code, and the North Costa Mesa Specific Plan) for Sakioka Farms Lots 1 and 2. On February 17, 2004, the City approved a partial assignment of the Agreement to reflect a division of the ownership within the Sakioka families. The "Assignment and Assumption of Development Agreement for Sakioka Farms" reflects the ownership changes and allocates the obligations of the Developer under the Development Agreement among the current owners of the Property (Attachment 5). Since 2004, Lot 1 has been developed with an 890-unit apartment community (The Enclave). All obligations related to Lot 1 have been met and remaining provisions of this agreement are only applicable to Lot 2. The effective date of the Agreement is May 15, 2001, which is based on the recorded date of the easement deeds. The Agreement is effective for 20 years from the effective date noted above, until May 15, 2021, unless otherwise extended by the parties. The Agreement has not been amended since its original adoption by City Council in 2001. Project Site Sakioka Lot 2 is a 33-acre parcel located in the Town Center area of the City adjacent to Anton Boulevard (Area 8 of the North Costa Mesa Specific Plan). Lot 2 is owned by Roy K. Sakioka & Sons. This site is designated Urban Center Commercial by the General Plan and is zoned Planned Development Commercial (PDC). The property is also located in the North Costa Mesa Specific Plan. One single-family home is located along Sunflower Avenue. The North Costa Mesa Specific Plan was adopted by the Costa Mesa City Council in July 1994 and amended as part of the Development Agreement approvals. The plan has been E amended twice as it applies to Sakioka Lot 2 in 2011 and 2016. These amendments are not specifically referenced in the Development Agreement. Summary of Development Agreement Obligations Section 3.5 of the Agreement requires periodic review of the Developer's performance of its obligations under the Agreement. The Agreement was last reviewed by the Planning Commission on April 8, 2013 to determine if the Developer has made a good faith effort to comply with the provisions and conditions of the Agreement. The 2013 review of the Sakioka Farms Development Agreement (DA-13-01) can be referenced at the link below: hftps://www.costamesaca.gov/Home/ShowDocument?id=l 0318 Since the 2013 review, the applicant has not undertaken any development activities on Lot 2; the site remains an agricultural use. (On January 6, 2021, an application was submitted by Tanaka Farms LLC to allow farm and U-pick activities on the Sakioka Property. The application is currently under review.) Therefore, the remaining obligations of the Agreement as they relate to this parcel have yet to be fulfilled. These benefits are described in Section 2.1 of the Agreement. The following section summarizes the Developers' obligations. Obligations on Part of the Developer • Dedication of Easements and Fee Interests to the City. The Developer has executed, acknowledged, and delivered a deed dedicating to the City the developer's fee interest in specified portions of the South Coast Metro property and Sakioka Farms Lot 2 needed for freeway on- and off -ramps (Ramp Deed). The Developer has also granted to the City a perpetual easement on a private road along the eastern half of Avenue of the Arts connecting to Anton Boulevard. The easements were dedicated on February 2, 2000 (Avenue of the Arts) and June 6, 2000 (Anton Boulevard). (This obligation is complete.) • Dedication of Bus Turnouts to the City. The Developer has also dedicated fee interest to the City for bus turnouts on Anton Boulevard. (This obligation is complete.) • Payment of Park and Traffic Impact Fees. The Agreement includes provisions relative to the payment of park impact fees for subsequent residential development and traffic impact fees for all development on Lots 1 and 2. On June 12, 2006, the Planning Commission approved Master Plan PA-05-56 for an 890-unit, three-story apartment community (The Enclave). Park and Traffic Impact fees for Lot 1 have been submitted, thereby completing obligations on the part of the developer for Lot 1. (Park and Traffic Impact fees for Lot 2, as applicable, pending a development proposal.) 3 • Dedication of Urban Rail Station Easement. The Agreement includes provisions relative to the dedication of a maximum one -acre of land for a future urban rail transit station on Sakioka Farms Lot 2 (33 acres). Although the Orange County light rail project originally envisioned by the Orange County Transportation Authority (OCTA) when this DA was approved is presently on hold, a dedication may be required when the developer receives final approval of all necessary future development approvals, including approval of a master plan and building permits. (This obligation is pending.) • Reservation of Urban Rail Track Line. The Agreement includes provisions relative to the City reserving its right in the future to exercise its power of eminent domain to acquire property for a future urban rail track line on Lot 2. Should the urban rail project be adopted, the City will work with the Developer to minimize impacts on the property from the final alignment of the track line. The Developer will reserve space for a future track line when designing any future development proposal. (This obligation is pending.) Obligations on Part of the City In accordance with Section 2.2 of the Agreement, the City has assured the Developer vested rights for 20 years to carry out and complete the project in accordance with the provisions of the Agreement and subject to existing land use regulations in effect at the time of the Agreement, existing development approvals, and future development approvals (i.e. master plan, subdivision map and building permits necessary to complete the project). The existing development approvals referenced in the original Agreement included the City of Costa Mesa General Plan, all Elements (including General Plan Amendment GP-98-08 related to the project and all other amendments approved on or before the effective date) and the North Costa Mesa Specific Plan (SP-94-01) (including Specific Plan Amendment SP-98-04 related to the project and all other amendments approved on or before the effective date). The existing development approvals referenced in the original Development Agreement allow for a maximum Floor Area Ratio (FAR) of 0.50 for retail uses and 0.60 for office uses. The approved trip budget under the DA is 1,588 a.m. peak hour trips and 1,562 p.m. peak hour trips. If the site is developed as a mixed -use project with a residential component, the maximum number of residential units shall be 660 (including any density bonuses). In addition, the total building intensity for the entire site shall not exceed 863,000 square feet; residential square footage shall be counted towards the maximum allowable building square footage. The maximum building height is 180 feet (approximately 12 stories). The original Agreement did not include any site plan approvals; the purpose of the Agreement was to establish the development capacity for the site, subject to future development approvals consisting of a subdivision map, master plan, building permits and other ancillary permits required by other uniform codes outlined in Exhibit C of Development Agreement 99-02 (Attachment 4). C! ANALYSIS: Time Extension Request The proposed amendment includes extending the term of the Development Agreement which will expire in 2021 for an additional 10 years until 2031. The term of the Lot 2 Agreement expires on May 15, 2021. As mentioned, Sakioka Lot 1 has been fully developed with The Enclave apartments, but Lot 2 is still vacant, and development of the property will not be completed before the expiration. Consequently, the applicant is requesting a 10-year time extension for the Agreement. Pursuant to the Development Agreement, the Developer has delivered the Dedication Agreement, Ramp Deed, and Private Road Deed, pursuant to which certain easements and fee interests have been granted to the City, and has dedicated certain rights of way for City bus turnouts. The public benefits related to the urban transit rail station and track reservation have not been realized as a development project has not yet been approved and finaled. As a result, approving an extended term will allow the City the opportunity to benefit from the remaining Developer obligations that were negotiated in the Development Agreement, should the project be developed. Further, both parties acknowledge that the development of the property depends on a number of factors including, development and finalization of site plans and building programs, market demand and supply, the availability of financing, interest rates, and similar factors. Therefore, staff believes that a 10-year extension is reasonable, when accounting for time considerations for the developer to prepare development plans and obtain all necessary future development approvals, including, but not limited to, a Master Plan, Subdivision Map, and issuance of building permits. The draft Development Agreement 20-03 reflecting the 10-year time extension is provided as Attachment A to the ordinance. JUSTIFICATIONS FOR APPROVAL: The applicant is not proposing additional project changes or public benefits beyond those agreed to as part of the original Agreement as part of the time extension request. State Law requires that amendments to Development Agreements be adopted by Ordinance. The attached Planning Commission resolution includes recommendations for the approval of the Development Agreement Amendment and Ordinance. Following are justifications for approval of the proposed project: • Proposal does not modify the previous approvals, other than the time extension. The effective date of the Agreement is May 2001. Other than extending the life of the development agreement by 10 years, no other changes are proposed. The 5 extended term will allow the City the opportunity to benefit from the remaining Developer obligations, should the project be developed. • Proposal is in compliance with the broader goals of the General Plan. The proposal is in conformance with the applicable General Plan and land use designation. ENVIRONMENTAL DETERMINATION: The project has been reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City environmental procedures. The proposed time extension was found to be categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15061 (b) (3) (general rule) of the CEQA Guidelines because the amendment is merely a time extension for an existing development agreement and does not change the underlying project. In addition, the relevant environmental analysis contained in the approved 2015-2035 General Plan EIR (SCH No. 2015111053, June 2016) is still valid and applicable to the project such that no further environmental review is required. LEGAL REVIEW: The draft ordinance for adoption of the amendment to the Agreement and the amendment to the Agreement have been approved as to form by the City Attorney's Office. PUBLIC NOTICE: Pursuant to Title 13, Section 13-29(d), of the Costa Mesa Municipal Code, three types of public notification have been completed no less than 10 days prior to the date of the public hearing: 1. Mailed notice. A public notice was mailed to all property owners and occupants within a 500-foot radius of the project site. The required notice radius is measured from the external boundaries of the property. 2. On -site posting. A public notice was posted on each street frontage of the project site. 3. Newspaper publication. A public notice was published once in the Daily Pilot newspaper. As of this report, no written public comments have been received. Any public comments received prior to the March 8, 2021 Planning Commission meeting will be provided separately. R ALTERNATIVES: The Planning Commission has the following alternatives: Recommend Approval with any modifications. The Planning Commission may suggest specific changes that are necessary to alleviate concerns. 2. Recommend denial of the Request. If the Planning Commission believes that there are insufficient facts to support the findings for approval, Planning Commission must recommend denial and provide facts in support of denial. CONCLUSION: The applicant has demonstrated good faith compliance with the provisions and conditions of the DA-99-02 as they pertain to date. The proposed time extension would extend the project for an additional 10 years until May 15, 2031. k vu�� L2eL� G A i � I P I �d / /' KATELYN W LSH JEN I E Assistant Planner Director of Economic and Development Services Attachments: 1. Draft Planning Commission Resolution and Exhibits ■ Exhibit A: Ordinance adopting DA-20-03 Attachment A: Draft Development Agreement (DA-20-03) 2. Applicant Letter 3. Vicinity Map and Zoning Map 4. Development Agreement DA-99-02 5. Assignment and Assumption of Development Agreement Distribution: Director of Economic and Development Services Interim Assistant Director of Development Services Assistant City Attorney Public Services Director City Engineer Transportation Services Manager Fire Marshal File Property George Sakioka Owner: Roy K. Sakioka & Sons 14850 Sunflower Avenue Santa Ana, CA 92707 rl RESOLUTION NO. PC-2021-03 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF COSTA MESA, CALIFORNIA RECOMMENDING THAT CITY COUNCIL GIVE FIRST READING TO AN ORDINANCE AUTHORIZING THE FIRST AMENDMENT TO DEVELOPMENT AGREEMENT 99-02 (DA-20-03) FOR SAKIOKA LOT 2 LOCATED AT 14850 SUNFLOWER AVENUE THE PLANNING COMMISSION OF THE CITY OF COSTA MESA, CALIFORNIA HEREBY FINDS AND DECLARES AS FOLLOWS: WHEREAS, Development Agreement 20-03 was filed by George Sakioka, authorized agent for the property owner, Roy K. Sakioka & Sons, for the following proposed project: WHEREAS, on November 15, 1999, the City Council of the City of Costa Mesa adopted Ordinance No. 99-16 approving Development Agreement DA-99-02 for the Sakioka Farms Project; WHEREAS, on February 17, 2004, the City of Costa Mesa approved the Assignment and Assumption of Development Agreement 99-02 for Sakioka Farms Development Property to reflect the division of ownership between RKSS Lot 2 and Sunflower Partners; WHEREAS, the proposed first amendment to Development Agreement DA-99-02, Sakioka Lot 2 (DA-20-03) would extend the term of the development agreement which will expire on May 15, 2021 for 10 years until May 15, 2031; WHEREAS, a duly noticed public hearings were held by the Planning Commission on March 8, 2021 for the first amendment to Development Agreement DA-99-02 (DA-20- 03) and recommended adoption of an ordinance (Ordinance No. 21-xx) approving the extension and first amendment to the Development Agreement with the following recommended additions: 1. Include a commitment for the applicant to provide affordable housing with the residential component to the project; 2. Identify the property as a "housing opportunity site" with an identified number of units and density in the site inventory list for the upcoming 2021 Housing Element Update and General Plan Land Use Update; and 3. Amend the Development Agreement to clarify that if any subsequent zoning actions resulting from the adoption of the 2021 Housing Element are approved by the City, and are approved by the public in compliance with Measure Y, as applicable, the applicant would build to the higher density and number of total units including any required affordable housing units. At this hearing, the City Planning Commission considered the evidence, the testimony presented by the public regarding the proposed amendment to Development Agreement DA-20-03 between the City of Costa Mesa and Roy K Sakioka & Sons; WHEREAS, the City finds that the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15061 (b) (3) (general rule) of the CEQA Guidelines because the amendment is merely a time extension for an existing development agreement and does not change the underlying project. In addition, the relevant environmental analysis contained in the approved 2015-2035 General Plan EIR (SCH No. 2015111053, June 2016) is still valid and applicable to the project such that no further environmental review is required. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission hereby RECOMMENDS that the City Council to give first reading to Ordinance No. 2021-xx (Exhibit A to this Resolution) for first amendment to Development Agreement DA-99-02 (DA-20-03) with respect to the property described above with the following recommended additions: 1. Include a commitment for the applicant to provide affordable housing with the residential component to the project; 2. Identify the property as a "housing opportunity site" with an identified number of units and density in the site inventory list for the upcoming 2021 Housing Element Update and General Plan Land Use Update; and 3. Amend the Development Agreement to clarify that if any subsequent zoning actions resulting from the adoption of the 2021 Housing Element are approved by the City, and are approved by the public in compliance with Measure Y, as applicable, the applicant would build to the higher density and number of total units including any required affordable housing units. BE IT FURTHER RESOLVED that if any section, division, sentence, clause, phrase or portion of this resolution, or the document in the record in support of this resolution, are for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions PASSED AND ADOPTED this 8th day of March, 2021. Mesa Planning Commission STATE OF CALIFORNIA ) COUNTY OF ORANGE )ss CITY OF COSTA MESA ) I, Jennifer Le, Secretary to the Planning Commission of the City of Costa Mesa, do hereby certify that the foregoing Resolution No. PC-2021-03 was passed and adopted at a regular meeting of the City of Costa Mesa Planning Commission held on March 8, 2021 by the following votes: AYES: de Arakal, Colbert, Russell, Toler, Tourje, Zich NOES: None ABSENT: None ABSTAIN: Stephens ClAkw"nv Jennifer Le, Secre ry Costa Mesa Planning Commission Resolution No. PC-2021-03 * SAKIOKA December 11, 2020 City of Costa Mesa COM PANY, LLC Via Email & FedEx Development Services Department 77 Fair Drive, 2nd Floor Costa Mesa, CA 92626 Attention: Jennifer Le; Acting Director of Economic and Development Services Re: Applicant Letter for Extension of Term Under Development Agreement DA-99-02 for Lot 2 of the Sakioka Farms Development Property (the "RKSS Lot 2 Development Agreement'), recorded in the Official Records of Orange County, California (the "Official Records') on February 3, 2000 as Instrument Number 2000-0060847. Dear Ms. Le, With this applicant letter, together with the attached form of Development Agreement First Amendment and signed application, Roy K. Sakioka & Sons, a California general partnership ("RKSS") hereby respectfully requests a ten year extension of the Development Agreement term, through May 15, 2031, with one (1) right to extend the term for an additional five (5) years upon receipt of an administrative approval by the City. The term of the RKSS Lot 2 Development Agreement currently expires on May 15, 2021. Pursuant to that certain Assignment and Assumption of Development Agreement for Sakioka Farms Development Property dated as of February 17, 2004 (the "Assignment"), recorded in the Official Records on April 2, 2004 as Instrument Number 2004-000275186, all rights and obligations under the Development Agreement with respect to RKSS Lot 2, as more particularly described in the Assignment, including all vested entitlement and development rights pursuant to the Development Agreement, were assigned to RKSS, and therefore only RKSS would be a party to the proposed amended Development Agreement and term extension. As of the date hereof, Sakioka Lot 1 has been fully developed with The Enclave project, but RKSS Lot 2 is still vacant, and development of the RKSS Lot 2 property will not be completed by May of 2021. Nor will all of the public benefits have been realized. Pursuant to the terms of the Development Agreement, the Developer has delivered the Dedication Agreement, Ramp Deed, and Private Road Deed, pursuant to which certain easements and fee interests have been granted to the City, and had dedicated certain rights of way for City bus turnouts. The Developer has also agreed, upon request from the City, to dedicate a portion of the Property for the purpose of locating a future urban rail station, and the City has reserved the right to exercise the power of eminent domain to acquire a portion of the Property for the urban rail track line. The City has not yet requested that the Developer make the dedication for the urban rail station. Thus, approving an extended term will also allow the City to derive the benefits from the remaining Developer obligations that were negotiated in the Development Agreement. 14850 Sunflower Avenue, Santa Ana, CA 92707 714.545.8611 December 11, 2020 City of Costa Mesa Development Services Department Attention: Jennifer Le There is no specific "project" proposed by this application, other than the extended Development Agreement term. The underlying approvals would remain in place, and the North Costa Mesa Specific Plan would continue to govern future development. Accordingly, we believe a categorical exemption from CEQA is appropriate as an existing use, and we have no additional details or project description. Please let me know if you have any questions or concerns, and we look forward to discussing this matter with you further and moving forward with the City's consideration of the request. Cc: Craig Kaihara Amy Forbes Very truly yours, George M.K. Sakioka 2 © City of Costa Mesa 0.3 WGS_1984_Web_Mercator_Auxiliary_Sphere Miles0.3 Notes Legend The City of Costa Mesa makes no guarantee as to the accuracy of any of the information provided and assumes no liability for any errors, omissions, or inaccuracies. 0.140 1:9,028 Vicinity of 14850 Sunflower Avenue (DA-20-03) Costa Mesa © City of Costa Mesa 0.3 WGS_1984_Web_Mercator_Auxiliary_Sphere Miles0.3 Notes Legend The City of Costa Mesa makes no guarantee as to the accuracy of any of the information provided and assumes no liability for any errors, omissions, or inaccuracies. 0.140 1:9,028 Zoning for 14850 Sunflower Avenue (DA-20-03) Costa Mesa Zoning AP - Administrative Professional IR-MLT - Institutional Recreational Multi-Use R1 - Single-Family Residential R2-MD - Multiple-Family Residential, Medium Density R2-HD - Multiple-Family Residential, High Density R3 - Multiple Family Residential MG - General Industrial MP - Industrial Park PDI - Planned Development Industrial C1 - Local Business C2 - General Business C1-S - Shopping Center TC - Town Center PDR-NCM - Planned Development Residential - North Costa Mesa I&R - Institutional Recreactional I&R-S - Institutional Recreational - School P - Parking CL - Commercial Limited PDC - Planned Development Commercial PDR-LD - Planned Development Residential - Low Density PDR-MD - Planned Development Residential - Medium Density PDR-HD - Planned Development Residential - High Density REQUESTED BY Recordad in the County of Orange, California RECORDING RE Q Gary L Granville, Clerk/Recorder AND WHEN RECORDED RETURN TO: NO Fee CITY OF COSTA MESA 20000060847 1:34PM 02/63/00 004 080751-70 110 12 77 Fair Drive 003 73 0 0.00 0.00 0.00 0.00 0.00 0.00 Costa Mesa, CA 92626 0.00 0.00 Attn; City Clerk Doc Types: 003 (Space .above This Line For Recorder's L sel --j j This Deveiopment ,Agreement For Sakioka Farms Development Property is recorded at the request and for the benefit of the City of Costa Mesa and is exempt from the payment of a recording fee pursuant to Government Code § 6103 C[TV OF COSTA MESA sv: M R T.L L Its: L E Dated: Aq&.0 � DEVELOPMENT AGREEMENT FOR SAKIOI£A FARMS DEVELOPMENT PROPERTY 0 by and between CITY OF COSTA MESA and SAKIOKA FARMS AND ROY K. SAKIOKA. & SONS ❑A-99-02 14 10214529 41.DOC I loop W 1= t1 � t� rr�►� T ti N 11 I _}1, ,r Ito ,144 Arc ,'1 •j',� f t r: J ! T} 'f�' i' i .r 0 •� 01A ' :s1ft 1 I �1 i r -1 ha.- 0- I j0mrrft , rti -lot + � ;r - 11. v14JTV li II "roll irlwl+r IM vow ff• I ,p11.046 awl vA 11,06 IfIM nl� I++Ar�plryl { I I t � �1F air � �'�+1]i�c��RW�I►� �Ni��., • �M1�•� N ,.e��/.,fin f1.►IY�1 I 4110A fsf%.� I-jv tatj+r r r.�iij� I N N TABLE OF CONTENTS 1.0 DEFINITIONS.............................................................:.:............................................ 2.0 AGREEMENT AND ASSURANCES......................................................................6 2.1 Agreement and Assurances on the Part of Developer. ...... ............ ....... 6 (i) Dedication Agreement ............... ....... .... ................. .....-- ............ .......... 6 (ii) Ramp Deed ..................................... ............... ........ .............................. () (iii) Private Road Deed ......................... ...... --- ......... --- ....................... (iv) Bus Turnouts .................. (v) Urban Rail Station Easement..............................................................7 (vi) Urban Rail Track Reservation............................................................9 (vii) No Compensation..............................................................................10 2.2 Agreement and Assurances on the Part of City. ...........................................10 (i) General......................................................................................... ....10 (ii) City's Consideration and Approval of Requested Changes in the Project..................................................................... ......................... 10 (ill) Timing of Development.................................................................... I 1 (iv) Reservations and Dedication of Lands For Public Purposes ............ I I (v) Monetary Development Exactions....................................................12 (vi) Traffic Impact Fee.............................................................................13 (vil) City Cooperation ................ I ......................................... (viii) City Review of Applications for Future Development Approvals... 13 (ix) Tentative Subdivision and Parcel Maps..................... ....................... [4 (x) Other Governmental Permits............................................................14 (xi) Repair and Restoration.... ........... -- .... ...... ......... ...... (xii) Other Rights...... ......... ......... ................................. 1 13 Reservations ofAuthoritv.............................................................................15 (1) Consistent Future City Regulations..................................................13 (ii) Overriding State and Federal l_aN s and ROULllalions....................... i (iii) Public Health and Safety ...... ................... .........................................15 (iv) Updated Uniform Codes ..... ............ —........................ .....-............... I� (v) Public Works [mprovementStandards............... .......................... --16 (vi) Assessment District and, or Community Facilities District...............16 3.0 GENERAL PROVISIONS. ............. ---- ......... - ........... ............ ......... --- 16 3.I Effective Date ofAgreement. .................... .......... ......... - ..... .l G 3.2 Duration of Agreement.. ......................... ......... i (1 15, 102[4�29 s1 Doc Pa'.?L 3.3 Periodic Review ....... .. ..... ............... ...... .... ............................... l (� 3.4 Defaults and Remedies. .... ............. 1 3.4.1 Notice and Opportunity to Cure ....................................................... 1 3.4.2 Default Remedies..............................................................................1 3.4.3 No Cross -Defaults ............................. ....................... l 8 3.4.4 Force Majeure................... ........ ...............................18 3.5 Mortgagee Rights.................................................._......................................_ 18 3.5.1 Encumbrances on the Property......................................................... l 8 3.5.2 Mortgagee Protection........................................................................18 3.5.3 Mortgagee Not Obligated. ............ ...... ......... ..... ...... 19 3.5.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure .......... 19 3.5.5 Bankruptcy. t 3.6 Notices . ............... .............. .................... ........................................................ 19 3.7 Severability ...................................... .........................2[) 3.8 Time of Essence .................................. ................................. ......................... .20 3.9 Successor and Assigns . ................. .................................. ... I ................. ........._[) 3.10 Litigation Expenses ......................... 3.11 Parties in Interest .............................................. 3.12 Further Actions and Instruments...................................................................21 3.13 Estoppel Certificates ................... ' 3.14 Recordation. .. ..................................... ........... ........ ........ 1 3.15 Applicable Law ...................................... .......................... ................ ........... ..? i 3.16 Approvals; Reasonableness. ...... .............. ........... 3.17 Amendments and Waivers..... ................... ...... 3.18 Entire Agreement........ _ _ ­ . .............. - ­ EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTI' SAKIOKA Lv r 1 AND SAKIOKA LOT ?............ .......... __.................... ............ ................... ......... ; a EXHIBIT "B" LIST OF EXISTING DEVELOPMENTAPPRO%'ALS ..............................3 1 EXHIBIT "C" LIST OF FUTURE DEVELOPMENTAPPROVALS................................33 EXHIBIT "D" LEGAL DESCRIPTION OF THE "555 PARCELS"... .... ...... ___33 EXHIBIT "E" LEGAL DESCRIPTION OF THE "SOUTH COAST METRO CENTER PROPERTY" ............ ....... ........... .................. __..... ................. ___ .........34 EXHIBIT "F" DEDICATION AGREEMENT BETWEEN THE CITE- AND DEVELOPER..........-.... ............................... ...... ­ ­ ­ I . ................ ...... ___-35 14 IQI-4�29 4I HOC: DEVELOPMENT AGREEMEN'T FOR SAKIOKA F RINIS DE`"ELOPMEN"T PROPERTY This Development Agreement for Sakioka Farms Development Property (tile. "Agreement") is executed this d-M day of I'-, c�.,ht-f , 1999, by and between the CITE' OF COSTA MESA ("City"), and SAKIOKA FARMS, a California general partnership ("Sakioka"), and ROY K. SAKIOKA & SONS, a California general partnership ("RKS") (Sakioka and RKS are collectively referred to herein as "Developer"). City and Developer are individually referred to herein as a "Party" and collectively referred to herein as the "Parties." RECITALS A. Developer is the owner of that certain property described herein as the "Property-"_ comprised of "Sakioka Lot 1" and "Sakioka Lot 2", as further described on Exhibit "A" attached hereto. The Developer may, in the future, desire to develop the Property. AccordinLyk , Developer has requested that City enter into this Agreement to provide certain assurances that the Property will be permitted to be developed in accordance with and subject to the provisions set forth herein and in City's "Existing Land Use Regulations." City's "Existing Development Approvals," and the "Future Development Approvais" to be obtained by Developer, all as more particularly set forth herein. B. The City, working with the Orange County Transportation Authority ("OCT:A," ) and the Califomia Department of Transportation ("Caltrans"), is engaged in a public works project to improve Interstate 405 and State Route 55. As part of such public works project ("Transportation Project") City, OCTA, and Caltrans propose to design and construct (1) an off - ramp from the northbound Interstate 405 (the "Off -Ramp") to and onto the existing "Private Road", which will be converted to a public road, and (7l an on -ramp to the northbound Interstate 405 (the "On -Ramp"). The On -Ramp and Off -Ramp are collectively referred to as the "Ramps." C. On or about .Tune 2, 1999. the Citv entered into "the South Coast Metro Center Development Agreement" with BREiSouth Coast L.L.C., a Dela%tare limited liability compali% ("BRE") and McCarthy Cook & Co. - South Coast Metro. LLC, a California limited hahillty company ("McCarthy Cook") with reference to the development of a project to be kno�%n as dic "South Coast Metro Center." BRE and McCarthy Cook are collectively referred to herein as the "South Coast Metro Center Ground Lessee." The property to be developed into the South Coast Metro Center is owned in fee by the Developer and groundleased by the South Coast %lttro Center Ground Lessee from the Developer, and is legally described In Exhibit "E" hereto. D. As part of the South Coast ':Metro Center Development Agreement. the City has required that the South Coast Metro Center Ground Lessee provide a dedication of its leasehold interest to the City for an additional bus turnout or turnouts along Anton Boulevard frontage (tile "Bus Turnouts)"), a permanent and perpetual easement for street purposes for the Private Road. as well as dedication of property for the Ramps. On or aborlt L. 01 _ , the South Coast Metro Center Ground Lessee and the City entered into a Dedicatl n Agreement pertaining to the Ramps and easement far street purposes for the Private Read. )-7 10214529 31 D00 E. In order to complete the Transportation -Prol_,:t. the toe dedication of propert• from the Developer is also required. One of the ILlndaM Iltaf puq)oses of this Development :Agreement is to permit the Citv to obtain the fee dedicatiotz .0t the necessary property tar the Transportation Project from Developer, at no cost to the City-. "hile assuring the Developer the right to develop the Property in the future. F. City has determined that development of the Property in the future will provide significant benefits to the community and that the development of the Property promotes the public health, safety, and welfare for the following reasons, among others: (i) development of the Property will generate significant public tax revenues that can be utilized to provide police, tire. and other essential and important public services to the community, 60 development will put the Property to productive use consistent with the objectives of City's General Plan: (Ili) development of the Property will provide a long-term source of employment opportunities for residents of the City and the surrounding region; (iv) this Agreement secures the commitment to dedicate land to City for the Bus Turriout(s) and to the City and/or Caltrans for the Ramps. I \ ) this Agreement secures for the City the fee portion of a permanent and perpetual easement t01' street purposes for the Private Road. In consideration for Developer's provision of these public benefits, City has determined that it is appropriate to enter into this Agreement to provide assurances to Developer that the Property will be permitted to be developed in accordance %% ith and subject to the provisions set forth herein and in City's Existing Land Use Regulations, City's Existing Development Approvals, and the Future Development :Approvals to be obtained by Developer, all as more particularly set forth herein. G. Pursuant to the authorization set forth in Article 2.5 (commencing with Section 65864) of Chapter 4 of Division 1 of Title 7 of the California Government Code (the "Development Agreement Statute"), the City Council of City adopted its Resolution No. 88-53 on July 19, 1988, establishing procedures and requirements for consideration of development agreements (the "City's Development Agreement Procedures and Requirements"). H. On _�_1% ., a 1999, the Planning Commission of City, after giving clue notice pursuant to Government Code Section 65867 and City's Development Agreement Procedures and Requirements, held a public hearing on Developer's application for approval of this Agreement, made certain findings and determinations with respect thereto. and recommended to the City Council of City that this :Agreement be approved. On % 1999, the City Council of City, after giving clue notiee pursuant to Government Codk2 Section 65867 and City's Development Agreement Procedures and Requirements. also held It public hearing on Developer's application for approval of this .-Agreement, considered the recommendation of the Planning Commission, and found that this agreement is consistent �� 1th the City General Plan and the North Costa Mesa Specific Plan. I. In accordance with the Development agreement Statute, City's Development Agreement Procedures and Requirements, and applicable law, on No W., e_S~ 1999. the City Council of City adopted its Ordinance No. r c -_LL approving this Agreement, _ 102 1452941.DO C0VENANTS: Based upon the foregoing Recitals, «hich arc incomorated 111to this Agreement by this reference and for good and valuable consideration. tilt receipt and sutticiency of Which 1s acknowledged by both Parties, City and Developer agree as tallo� s: 1.0 DEFINITIONS. The following terms when used in this Agreement shall have the meanings set forth below: The term "Agreement" shall mean this Development Agreement for Sakioka Fauns Development Property by and between the City of Costa Mesa and Developer, as the same may be amended from time to time. The term "Bus Turnouts)" shall mean an additional bits turnout or turnouts along the Anton Boulevard frontage as specified in Recital D and further described in Section �.1R i~ f hereof. The term "Caltrans" shall mean the California Department of Transportation. The term "City" shall mean the City of Costa Mesa. California. The term "City's Development Agreement Procedures and Requirements" shall have the meaning ascribed in Recital O of this Agreement. The term "Dedication Agreement" shall mean the Dedication Agreement between Developer and the City attached hereto at Exhibit "F" relating to the Ramps and the Private Road. The term "Developer" shall collectively mean Sakioka Farms, a California general partnership, and Roy K. Sakioka & Sons, a California general partnership, and their successors and assigns as referred to in Section 3.9 of this agreement. The term "Development Agreement Statute" shall mean article 2.5 lcommenc1[IV �k ith Section 65864) of Chapter 4 of Division I of Title i ofthe Cal Ifornia Government Code. The term "Effective Date" shall have the meaning ascribed in Section 3.1 of tlils Agreement. The term "Existing Development Approvals" shall have the meaning ascribed in tite definition of the term "Project" set forth in this Section 1. The Existing Development Appro%als are listed in Exhibit "B" hereto. The term "Existing Land Use Regulations" shall have the meaning ascribed in the definition of the term "Project" set forth in this Section 1. 10214524 41 DOC:+ )I The term "555 Parcels" shall mean that cccrtam lrropert% o\� ned in !ce by tlic Developer. that is surrounded by the South Coast _Metro Property but [tot ground leasl2d by the South co isE Metro Center Ground Lessee, and is bounded to the youth h� tlic San Diego Freeway more particularly described in the legal description attached' Hereto as Exhibit "D" and by this reference incorporated herein. The 555 Parcels are ground [eased by the "555 Parcel Lessee" and currently are developed with a l?-story office building with (lie street address of 555 Anton Boulevard, a parking structure, and related improvements. The term "555 Parcel Lessee" shall mean AGL Investments No. 5 Limited Partnership. The term "Future Development Approvals" shall ha, e the meaning, ascribed in the definition of the term "Project" set forth in this Section l . The Future Development ApproN Lils are listed in Exhibit "C" hereto. The terra "Mortgage" small have the meaning ascribed 1n Section 3.5.1 of this Agreement. The term "Mortgagee" shall have the meanin4 ascribed in Section 3.5.2 of this Agreement. The term "QCTA" shall mean the Orange County Transportation Authority. The term "On -Ramp" shall meant the on -ramp to the northbound Interstate 405 as further described in the Dedication Agreement. The term "Off -Ramp" shall mean the off -ramp from the northbound Interstate 405 to and onto the existing Private Road as further described in the Dedication Agreement. The term "Party" shall refer singularly to City or Developer and collectively to City and Developer. The term "Private Road" shall refer to the east half of A enue of the Arts between the 1- 405 freeway and the center of the intersection of Anton Boulevard and Avenue of the Arts. The term "Project" shall mean future development of the Property described herein. AS of the Effective Date of this Agreement, the Property is Undeveloped. In the future. t1w Developer may desire to develop the Property in accordance �� ith all of the following: 11 ) the City of Costa Mesa General Plan, the North Costa Mesa Specific Plan, Title 13. l'lannim-,, Zoning and Development of the City's Municipal Code. and all other ordinances, resolut3o11s. regulations, and official policies governing land use development and building, construction in the versions of these documents in effect in the City of Costa yiesa as of the Effective Date: of this Agreement (collectively, the "Existing Land Use Re2ulations"): (itj those certain land use permits and entitlements Issued by City for the Property on or before the Effective Date of this Agreement which are listed in Exhibit "B" attached hereto and incorporated herein by this reference (collectively, the "Existing Development Approvals")-, and (111) those additional Cite land use and building permits and entitlements which must or may be approved for the Property subsequent to the Effective Date of this Agreement in accordance %vith the Existing Land L.'sc Regulations and which are listed in Exhibit "C" attached hereto and incorporated herein b%,• this reference (collectively, the "Future Development _lpprov als" i. including any amendments or 10214529 41-DOCI �c modifications thereto. The future development of the Proper[- pursuant to the Existing Land Use Regulations, the Existing Development Appro% als. and the Future Development Appro% als is referred to herein as the "Project." As used herein. the terns "Prolcct" shall include the Project as the same may be changed in accordance with subparagraph I d j of the first paragraph of Section 2.2. The term "Property" shall mean collectively the approximately 73.34 gross acres of land area comprised of two parcels of land ("Sakioka Lot l" and "Sakioka Lot 2") more particularIv described in the legal descriptions attached hereto as Exhibit "A" and by this reference incorporated herein. Sakioka Lot 1 is bounded generally by Sunflower Avenue, Anton Boulevard and Sakioka Drive, and Sakioka Lot 2 is bounded generally by Anton Boulevard, Sunflower Avenue, the Costa Mesa Freeway and a portion of the South Coast Metro Center Property, both in the City of Costa Mesa, County of Grange. State of California. The term "Ramps" shall mean collectively the On -Ramp and Off -Ramp. The term "Reservations of Authority" shall have the meaning ascribed in Section 2.3 of this Agreement. The terms "Sakioka Lot 1" and "Sakioka Lot 2" shall have the meanings ascribed to them in the definition of the "Property" above, and are legally described on Exhibit "A". The tern "South Coast Metro Center Dedication Agreement" shall mean that certain Dedication Agreement, effective on or about J ql . 7 `i , between South Coast Metro Center Lessee and City. The term "South Coast Metro Center Development Agreement" shall mean that certain Development Agreement for South Coast Metro Center Property (DA-99-01 ), effective on or about June 2, 1999, between South Coast Metro Center Ground Lessee and City. The term "South Coast Metro Center Ground Lessee" shall mean coliectively BRE. South Coast L.L.C., a Delaware limited liability company, and ylcCarthy Cook & Co. - South Coast Metro, LLC, a California limited liability company, and their successors and assigns. The term "South Coast Metro Center Project" shall have the meaning ascribed to the "Project" in the South Coast Metro Development Agreement. The term "South Coast Metro Center Property" shall have the meaning ascribed to tfte "Property" in the South Coast Metro Center Development :agreement and is legally described in Exhibit "E" hereto. The South Coast 'Metro Center Property is owned in fee by the Developer and is groundleased by the South Coast :Metro Center Ground Lessee from the Developer. The term "Transportation Project" shall mean the public tivorks project by the Cite, worsting with OCTA and Caitrans, to improve the Interstate 405 and State Route 55, as described in Recital B. .21 10214529 i t ❑OCI 2.0 AGREEMENT AND ASSURANCES. 2.1 Agreement and Assurances on the part of Develo er. From and after the Effective Date, Developer, in accordance with its sound business judgment, agrees to work towards development of the Project in accordance with the Existing Land Use Regulations, the Existing Development Approvals, and the Future Development Approvals to be obtained pursuant hereto. Not by way of limitation of the foregoing, Developer shall comply with all conditions imposed by City on the Existing Development Approvals and all valid conditions consistent with this Agreement that City may impose on the Future Development Approvals. Developer represents that it intends to pursue development of the Project in accordance with this Agreement with reasonable diligence as it deems appropriate in its sound business judgment and consistent with its business goals. In this regard, it is understood that Developer's development of the Property and each element thereof depends upon a number of factors including, but not necessarily limited to development and finalization of site plans and buildin'i programs, market demand and supply, the availability of financing, interest rates, and other conditions outside Developer's control. Accordingly, nothing in this Agreement shall he construed as requiring Developer to develop the Property, and any failure to- develop the Property shall not be deemed a default by Developer of its obligations set forth in this Agreement. In addition to the foregoing, Developer covenants as follows; (i} Dedication Agreement. On or before the Effective Date of this Agreement, unless extended in writing by City, Developer shall execute and deliver to the City the Dedication Agreement attached hereto at Exhibit "F". City shall extend the above due date for Developer's delivery of the Dedication Agreement to the date reasonably specified by the Developer if City and; or Caltrans has not yet supplied the Developer with all required information reasonably needed by Developer to finalize and execute the Dedication Agreement, including but not limited to final parameters for the general location and dimension of the proposed dedications. (ii) Ramp Deed. Simultaneously with Developer's execution of the Dedication Agreement, unless extended in writing by City. the Developer shall execute. acknowledge and deliver a deed dedicating to City. and.'or (at the City's sole election) Caltrans, Developer's fee interest in those portions of the South Coast Metro Center Property, the Property, and the 555 Parcels needed for the Ramps. substantially in the form of Exhibit "T' to the Dedication Agreement attached hereto at Exhibit "F" (the "Ramp Deed"). City shall extend the above due date tar Developer's delivery of the Ramp Deed to the date reasonably specified by the Developer if City andUor Caltrans has not vet supplied the Developer with all required information reasonably needed by Developer to finalize and -execute the Ramp Deed. The portions of the Property, the South Coast Metro Center Property :' r and the 555 Parcels required for the Ramps are uenerally described and depicted 1021452s a 1 D OC) on Exhibit "1" to the Dedication Agreement attached hereto at Exhibit "1'" and incorporated herein by this reference. (iii) Private Road Deed. Simultaneously «ith Developer's execution of the Dedication Agreement, unless extended in writing by City, Developer shalt execute, acknowledge, and deliver a deed granting to City an perpetual easement and right-of-way in, on, under, across, and through, the Private Road, substantially in the form of Exhibit "-l" to the Dedication Agreement attached hereto at Exhibit "F" (the "Private Road Deed"). City shall extend the above due date for Developer's delivery of the Private Road Deed to the date reasonably specs ied by the Developer if City has not yet supplied the Developer with all required information reasonably needed by Developer to prepare the Private Road Deed. The Private Road is legally described and depicted on Exhibit "T' to the Dedication Agreement attached at Exhibit "F" hereto and incorporated herein by this reference. (iv) Bus Turnouts. If and only if the South Coast Metro Center Lessee is required to dedicate any leasehold interest to the City For the Bus Turnout(s), then Developer shall also irrevocably offer to dedicate to City Developer's fee interest in those rights -of -way on the South Coast Metro Center Property corresponding to the South Coast Metro Center Lessee's dedication of leasehold interest as are required for the Bus Turnout(s). The form of such offer of dedication shall be reasonably satisfactory to City and Developer. Developer shall execute in recordable form and deliver the appropriate documents within sixty (60) days after receiving notification of the South Coast Metro Center Lessee's dedication of leasehold interest for the Bus Turnout(s) and the City's acceptance of such dedication. City shall extend the above due date for Developer's delivery of the dedication document(s) to the date reasonably specified by the Developer if City has not yet supplied the Developer with all required information reasonably needed by Developer to prepare the dedication documents. (v) Urban Rail Station Easement. Developer agrees to dedicate land for the purpose of locating a future urban rail transit station on the Property, adjacent to. or contained within, the future public road connectinv Anton Boulevard and llaln Streets as generally indicated on Tract Map 10950, Recorded in Rook 515, pages 1-8, inclusive, of Miscellaneous Maps, in the Orange County Recorder's Office on September 19, 1983, as corrected by the Certificate of Correction recorded as Instrument No. 86-160488 of the Official Records of Orange County. California on April 23, 1986, or any such other location on the Property as may be mutually agreed to by the Developer and the City. Such dedication shall be made to the City, or if directed by the City, to such entity that may have Jurisdiction over the passenger stations serving a future urban rail. system. The dedication grant deed shall be a form reasonably acceptable to the City, shall be given without cost to the City, and shall be executed and delivered kvithin thirty (30) days of receiving written request from the City therefor provided that in no event shall the dedication grant deed be required to be deh,,ered prior to the time that Developer receives final approval of all necessar% Future Development Approvals �% ith 10214529 41 DOCr respect to development of the Project, and expiration of :ins' applicable statutes of - limitations relative thereto. tiom ithstandinor the 1i61-cgoing, to the extent that Developer elects (in its sole and absoitite discretion) to process applications lar Future Development Approvals covering less than the total amount of development of the Property othenvise permitted pursuant to the Existing Land Use Regulations, then the dedication grant deed may be requested by the City any time after Developer receives final approval of such Future Deveiopment Approvals with respect to such smaller increments of development of the Project as applied for by the Developer, and expiration of any applicable statutes of limitations relative thereto; provided, in no event, shall the Citv require the dedication grant deed to be delivered prior to the time Developer has recciv ed final approval of Future Development Approvals with respect to at least 25 of the cumulative aggregate amount of Development permitted under the Existing? Development Approvals, and expiration of any applicable statutes of limitation relative thereto. (a) At or prior to the time: Developer submits to the City an application for Future Development Approvals covering a minimum cumulative aggregate of 2 5 % of the development of the Property permitted under the Existing Development Approvals, the development of the urban rail transit system has progressed to the stage where a discrete phase of the system consisting of a minimum operating segment containing at least 7 stations (including a minimum of 2 stations in Costa Mesa) has been approved and construction of such segment is fully approved to proceed, legally authorized, and fully funded. (b) The urban rail transit system is so designed as to be serviceable by a transit station on the Property. (c) City (or such other entity that may have jurisdiction over the future urban transit system) has designated a suitable site for the construction of the transit station, which site shall consist of a maximum of one t l ) acre of land. The City agrees to work with Developer in good faith to minimize planning, economic and environmental impacts on the Property from the selection of the station sites. (d) Any land dedicated by Developer to Cite or other entity for the station shall be included by the Citv in the total square footage of the Property for purposes of the calculation of the floor -to -area ratio ("FAR") of the Proj ect. (e) The area dedicated for the transit station by Developer pursuant to this Section shall not be required to include any area for parking. �f} Developer shall have no obligation to pav for or contribute towards the cost of constructing the transit station. R4 10214529 4 t ❑OC' The City and Developer agree in good faith to ntUotlatt rrtutuallV acceptable easements for operation of the station and construction easements for dc� clopment of the station on (lit Property, between the Developer and the City or other entity ha\ itig Jurisdiction over transit stations servicing the urban rail system. (vi) Urban Rail Track Reservation. Developer acknowledges that City for such enntG that may have jurisdiction over the future urban rail transit system) may also ill the future need to construct or install track for the urban rail system on the Property. Any property required for such track line is not included by Developer as part of its dedications to the City in this :agreement. The City, therefore, reserves its right in the future to exercise its power of eminent domain in order to acquire property For such track line. City also agrees to work with the Developer to minimize impacts on the Property from the final alignment of such track line. Notwithstanding the foregoing, Developer agrees to design any Project so as to reserve space for such urban rail track line for the City if so requested by the C its. and further provided the following conditions are met: (a) The conditions of Section 2.1(v) above. shall have been satisfied.. (b) At Developer's option, and in Developer's sole and full discretion, either (i) any land reserved by Developer to City or other entity for the track lint shall be included by the City in the total square footage of the Property for purposes of the calculation of the floor -to -area ratio ("FAR") of the Project, or (ii) the Developer shall receive full fair market value pursuant to the State's eminent domain law for any property reserved for the Urban Rail track by the Developer or taken through the power of eminent domain, or by negotiated agreement. Notwithstanding the foregoing, if the track is placed within any public right-of-way dedicated for street purposes, Developer shall only be entitled to the aforementioned FAR credit or compensation for any amount of right-of-way required to he dedicated in excess of the sixty 160j foot right-of-way currently required under the City's Existing Land Use Regulations. In arriving at a full and fair market value for any Property reserved or taken for the urban rai I track, any appraisal shall take into account the value of property rendered unusable by virtue of required setbacks from the tracks, as well as damave to the remaining property occasioned b%r track alignment and construction on the Property, provided that 11* the track is located entirely in the si t% (60) foot night -of -way otherwise required to be dedicated in accordance with the Existing, Land Use Regulations. no severance damages need he accounted for. (c) The urban rail track line shall bal4veloped at no cost to Developer. (d) Developer waives none of its rights to participate in the approval process for the urban rail line, and to provide comments on the urban rail track lime alignment and environmental documentation. P15� 10214529 41 DOC' (e) unless the tract: is to be located in the ;)ublic right-of-k%ay dedicated 601, street purposes, a rnulual Iv acceptable reserx at: oil agreement pertalnin� to the Urban Rail track kne on the Property• shall have been a -reed to by the Developer and the City or other entity iia`, ing jurisdiction over the Urban Rail System." (vii) No Compensation. Neither City nor Caltrans shall be required to pay compensation for the value of Developer's fee interest in the Property, the Sotilth Coast Metro Property, or the 555 Parcels offered for dedication as specified in this Agreement or for any alleged diminution in value of Developer's fee interest in the remainder of the Property, the South Coast Metro Property, or the 555 Parcels. 2.2 Agreement and Assurances on the Part of City. City hereby agrees that commencing on the Effective Date, and continuing during the entire remaining term of this Agreement, Developer shall have jested right to carry out and complete the Project in accordance with the express provisions of this Agreement and the Existing Land Use Regulations, the Existing Development Approvals, (as the same mav be amended or modified, at the request of Developer in accordance with this Agreement) and, once the same have been obtained, the Future Development Approvals, to the full extent-pennitted by the Development Agreement Statute. In furtherance of such agreement and assurance, and pursuant to the authority and provisions set forth in the Development Agreement Statute, CitV further hereby agrees and acknowledges as follows: (i) General. The uses permitted hereunder, the density and intensity of development_ the maximum height and size of buildings, and all other matters affecting land use and development of the Project shall be as set forth in the express provisions of this Agreement and the Existing Land Use Regulations, the Existing Development Approvals, and, once the same have been obtained, the Future Development Approvals. in addition, Developer's applications for Future Development Approvals and any changes to the Project shall be reviewed as permitted by City's Existing Land Use Regulations, including the standard appeal and review procedures. (ii) City's Consideration and Approval of Requested Changes in the Project. 01r acknowledges that the Developer may in the future desire to further specify, modify or expand the precise location, configuration, size and height of the proposed buildings and develop a 1111\ of proposed uses after the Effective Date of this .agreement based upon more precise planning.,. changes in market demand, changes in development occurring in the %-icittity, and similar factors. In such event, City shall cooperate with Developer to expeditiortsly rC%'tcw and take Final action on such requested changes in accordance with City's Existing Land Use Regulations. Developer reserves the right to reduce the densities and intensities of uses and the heights and sizes of buildings below the maximums permitted by this .agreement. 711e City ac€ rimvledges the Developer's tight to seek additional density, intensity, or uses on the Property. In no event. however, shall Developer have the right hereunder to increase density, intensity or uses in the Project without fully complying with the procedures in the Existing Land Use Regulations. No change to the Project which is consistent with the Existing Land Use Regulations, or which is approved by the City in accordance with the Existing, Land Use Regulations, shall require an amendment of this Agreement and, in the event an%, chance in the Project proposedby Developer IX 10214529-11-DOC' is approved by the City, the references 1n this A� zreemcnt to the Project or applicable portion thereof shall be deemed to refer to the Project as so cham!ed. (iii.) Timing of Development. The Parties ackilm% ledge that the most efficient and economic development of the Project depends upon numerous .Factors such as market orientation and demand, interest rates, competition, and similar factors. Accordingly, the timing. sequencing, and phasing of development shall be as determined by Developer in its sole subjective business judgment and discretion unless it is a condition to a discretionary decision for a Future Development Approval reasonably related to mitigation of the Project's impacts, or a Project change to which Developer consents. Not by way of limitation of the foregoing, [lie Parties acknowledge and agree that no moratorium, initiative, ordinance, resolution, or other land use regulation or limitation which is adopted after the Effectl%re Date of this Agreement and which directly or indirectly relates to the conditioning, rate, timing, or sequencing o f development of the Project or the Property, or any portion thereof, shall apply to or govern [lie development of the Project during the term hereof, whether any such regulation or limitation affects or applies to parcel or subdivision maps (whether tentative. %esting tentative, or finah, building permits, occupancy permits, or any other licenses, permits. or entitlements to use issued or granted by City. (iv) Reservations and Dedication of Lands For Public Purposes. in recognition of the significant exactions, contributions, and dedications which Developer has already made, 'which have been a significant benefit to both Developer and the City, Developer shall not be required to dedicate, convey, or transfer any interest in land or to construct or install public improvements or facilities in conjunction with development of the Project except (i) as expressly provided for in the Existing Development Approvals, (ii) as expressly set forth in the provisions of this Agreement, (iii) as lawfully and reasonably required in connection with changes, modifications or amendments to the Existing Development Approvals sought by Developer, or (iv) as may be directly necessary in connection with the City's processing and conditioning of the Future Development Approvals, to mitigate site specific impacts of the Project which were not, and reasonably could not, have been anticipated at the time the City approved this Agreement.. because, for example, a site plan for the Project was not vet available. and the specific mix of uses for the Project had not yet been determined. The provisions of this Section 2.2(iv) are itot intended to preclude the City's ability to require minor additional dedications and exactions such as curb cuts, turn pockets, interior streets, and signalization of intersections directly adjacent ro the Property. in connection with Future Development Approvals as presently required or authorized by the Existing Land Use Regulations. However, this Section is intended to limit the City's ability to require any exactions, contributions or dedications of public improvements «lilt respect to major circulation improvements, public facilities. or oft -sites, including the acquisition of right-of-way. (v) '.Monet Development Exactions. Except as may be expressly set forth in subparagraph (vi) of this Section 2.2 and in Section 2.3 of this Agreement, City shall not impose, levy, collect, or require payment of any further development or building tax, assessment, fee. or charge, (collectively, "Exactions") in conjunction % ith Developer's development of the Property or the Project, excepting only those Exactions which are provided for or required by the Existing Land Use Regulations and the Existing Development ,\pprov als: provided, however, that the foregoing limitation on Exactions does not appl�o c =encrall� applicable processing, plan I,S ,27 10214529 41 ❑OC' check, building permit, and inspection lees for the Project tit bcinU understood that, as to such fees, Developer shall pay the same fees that %kOLIJd lac app1iCdb1e in the absence ol' this Agreement), (_10 any Exaction that is imposed. Icy ied. collected. or required by any public agency, utility, district, or joint powers authority other than City-. including but not limited to the San Joaquin Hills Transportation Corridor Agency, Newport4vlesa Unified School District, Costa Mesa Sanitary District, and Mesa Consolidated Water District, but excluding any other public agency, utility, district, and joint powers authority which is controlled by City or by the officials or employees of the City and (iii) arty uniformly applied development policies or standards imposed as part of the development approval process to make new development projects conform to the City's development standards pursuant to the Existing Land Use Regulations. Developer has previously contributed the following resources to the City, includin-) dedications of land, dedications of easements, and contributions of financial resources- (a) dedicated Anton Boulevard from Avenue of the Arts to Sunflower Avenue, (b) dedicated tilt south side of Sunflower Avenue from Avenue of the Arts to Main Street, (c) dedicated a portion of Main Street, (d) dedicated all of Sakioka Drive, (e) dedicated a public easement around Sakioka Lot 1 for a bike lane, (f) contributed to the assessment district for The Lakes retail development providing a public easement for a public lake amenity, (g) dedicated 30,000 square feet of land for the Metro Fire Station located on Sakioka Drive, and (h) contributed approximately $71,000 for the enhancement of that Metro Fire Station. Therefore. notwithstanding the foregoing, based on Developer's previous contributions to the City, and mitigation of area -wide fire safety impacts, City shall make available to Developer a credit in the aggregate amount of $1,046,000 to be applied by the City against any future fire safety impact fee or other public safety or similar fee proposed to be imposed on the Project. Further, the City agrees that the width of the bike lane adjacent to Sakioka Lot 1 shall be included as part of the width of any setback required for development of Sakioka Lot 1. Developer agrees that it shall pay to the City a park fee with reference to the residential development in the Project (if any) and such park fee shall also be payable with reference to both residential subdivisions and apartments regardless of any provisions in the City's Existing Land Use Regulations to the contrary. The applicable park fee shall be the lesser of (ay the park fee calculated in accordance with the City's Existing Land Use Regulations or (b) the park tec calculated in accordance with the City's Land Use Regulations that exist at the time a bUddingI permit for the residential use is obtained by Developer. if the park fee payable by DeN eloper pursuant to this Section is based on apartments, and no specific fee schedule has been established for apartments, the applicable fee schedule shall be the multi -family fee schedule. City agrees that regardless of any provisions in the City's park fee ordinance to the contrary Developer shall be given full 100% credit against such park fee for Developer's (a) dedication of public opell space, (b) improvements to public land dedicated for park. open space or recreation purposes. � c 1 privately developed, owned and maintained open space. and (d) improvements to such pri% ate open space, provided that such credit for privately developed, owned and maintained open space. or improvements to such private open space, in accordance %vith (c) and (d) above, shall tic subject to prior review by the City for a determination (riot to be unreasonably delayed or withheld) as to whether such park, open space or recreational area is in fact useful open space _ andJor park or recreational amenities available to Project residents. Notwithstandinu the ". foregoing, useful open space, park and recreation areas available to Project residents shall he 1021452941 DOC' deemed to include, but not be limited to, the iollow mg: ( 1 ) tennis courts. (2) s%vimming Pools- (3) passive and active recreation open space. (4) children's plav lots_ t 51 turf area, (b) picnic area. (7) volleyball area, and (8) barbecue and patio areas. (vi) Traffic impact Fee. From the Effective Date through the term of this Agreement, the City traffic impact fee assessable against the Project shall be as follows: ( ) from the Effective Date through the fifth anniversary of the Effective Date, the traffic impact tee shall be the sum of One Hundred Forty Kline Dollars (S149_00) per average daily trip ("ADT"), with the ADT to be calculated and credits against the fee to be determined, if applicable, in accordance with the Existing Land Use Regulations; (B) from the day after the fifth anniversan of the Effective Date through the tenth anniversary of the Effective Date, the traffic impact tee shall be the lesser of Two Hundred Dollars ($200.40) per ADT or the actual traffic impact fee that would be payable at the time in the absence of this Agreement, and (C) from the day after the tenth anniversary of the Effective Date through the remaining term of this Agreement. the traffic impact fee shall be the amount that would be payable at the time in the absence of this Agreement. Notwithstanding the foregoing, from the Effective Date through the term of this Agreement, any City project trip generation analysis for development of the Project shall utilize (a) the trip generation rates contained in the institute of Transportation Engineers ("ITE") Traffic Generation Forecast, 6th Edition, or (b) such other trip generation rates published by the ITE or an equivalent entity, as may be mutually agreed upon by City and Developer. (vii) City Cooperation. During the term of this Agreement, City Council and staff shall take all reasonable actions to assist Developer in the successful completion of the Project. (viii) City Review of Applications for Future Development Approvals. City acknowledges and represents that the Future Development Approvals listed in Exhibit "C" are the only discretionary City development and building approvals that Developer is required to obtain in order to complete the development of the Project, except for any additional permits and approvals for the Project that may be required pursuant to Section 2.3. All subsequent consideration by City of Developer's applications For Future Development Approvals for 111c Project shall be subject to the terms and conditions set forth in this Agreement, To the extent permitted by the Development Agreement Statute, in no event shall Cite disapprove, condition, or delay the processing of any application for any Future Developmcnt Approval for reasons inconsistent with the Existing Land Use Regulations, the E\Isim., Development Approvals, or the express provisions of this :agreement. I f City is unable to timer process any of Developer's applications for Future Development Approvals, upon Developer's request City shall consider engaging qualified outside consultants reasonably acceptable to Developer to aid in such processing, provided that Developer shall be required to advance Lill charges to be incurred by City for such outside consultants. In this regard, Developer, in timely manner, will provide City with all documents, applications, plans, and other informatioll necessary for City to carry out its obligations hereunder and Will cause Developer's planners. engineers, and all other consultants to submit in a timely manner all required materials and documents therefor. IA-1 10214524 41 DOC/ After the date that City approGcs an application for a future De, elopment Appro% ai. Developer shall have the vested right to develop pursuant to said appro; a! to the same extem that Developer has the vested right to de�relop pursuant to the Existing Development Approvals- (ix) Tentative Subdivision and Parcel Maps. \&'ith respect to applications by Developer for tentative subdivision and parcel maps for portions of the Property, City agrees that Developer may file and process vesting tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division ? of Title 7 of the California Government Code and the applicable provisions of City's subdivision ordinance. If final maps are not recorded far the entire Property before such tentative maps)(whether or not any such tentative map is a vesting tentative map) would otherwise expire, the term of such tentative map(s) automatically shall be extended for the term of this Agreement. W Other Governmental Permits. Provided that Developer pays the reasonable cost of such cooperation, after City has approved the development of any portion of the Property. City shall cooperate with Developer in its efforts to obtain such additional permits and approvals as may be required by any other governmental or quasi—overrtmental agencies having jurisdiction over such portion of the Property which permits and approvals are consistent «ith City's approval(s) and which are consistent with this Agreement. City does not warrant or represent that any other governmental or quasi -governmental permits or approvals r.vtll he granted. (xi) Repair and Restoration. With respect to work in conjunction with the Transportation Project and the dedications required by this Agreement, City and/or Caltrans shall repair and restore any damage to the improvements located in the remainder of the Property, the South Coast Metro Center Property, or the 555 Parcels such that the improvements are restored as nearly as practicable to the same quality level and functional condition as existed before the damage, with such repair and restoration work to include, without limitation and to the extent applicable, new curbs, gutters, sidewalks, retaining walls and planters, driveway entrances, parking lot improvements, lighting, utility lines, and perimeter landscaping and irrigation systems on the portions of the Property, the South Coast %,letro Center Property. or the z;; Parcels adjacent to the dedicated areas. (xii} Other Rights. Developer shall not be responsible for obtaining any property interest of any other party, including the dedication of leasehold interest in the 555 Parcels from the 555 Parcel Lessee, or any leasehold interest in the South Coast Metro Center Property from the South Coast Metro Center Lessee, that is required by the Cit% and. or Caltrans for the Ramps - the easement over the Private Road, the Bus Turnouts s 1 or and other project. 2.3 Reservations of Authority. Notwithstanding anything to the contrary set forth in this agreement, the foIiowing la�N S. L ordinances, regulations, resolutions, and official policies adopted or approved after the Effecu%-c z Date of this Agreement shall apply to and govern development of the Project (collectively, the - - r "Reservations of Authority"): >-50 1021452941 DOC/ 0) Consistent Future City regulations. Cite ordinances. resolutions. regulations. and official policies governing development and building which arm In furtherance of and not in conflict with this Agreement, the Existing Development Approvals. and the Existing Land L'sc Regulations shall apply to the Property and the Project. (ii) Overriding State and Federal Laws and Regulations. State and federal laws and regulations which are adopted or approved after the Effective Date of this Agreement which override Developer's vested rights set forth in this Agreement shall apply to the Property and the Project, together with any City land use ordinances, resolutions, regulations, and official policies which are adopted or approved after the Effective Date of this Agreement and which are necessary to enable City to comply with such overriding State and Federal laws and regulations: provided, however, that (A) Developer does not waive its right to challenge or contest the validity of any such future State, federal, or local laws, regulations, ordinances, resolutions. or official policies, on their face or as applied to the Property and the Project, and (B) in the event that any such State or federal law or regulation (and/or any valid City ordinance, resolution, regulation, or official policy undertaken pursuant thereto) prevents or precludes compliance «-ith one or more provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such overriding State, federal or local la%�. regulation, resolution, or official policy and this Agreement shall remain in full force and effect to the extent that it is not inconsistent with such overriding law, regulation, resolution, or official policy and that performance of the remaining provisions of this Agreement would not be inconsistent with the intent and purposes of this Agreement. (Iii) Public Health and Safety. Future City ordinances, resolutions, regulations, and official policies which are necessary to protect the persons on the Property or in the immediate community, or both, from conditions dangerous to their health or safety, or both. (iv) Updated Uniform Codes, provisions of the building standards set Forth in the California Building Standards Code in effect in the City at the time of the issuance of the building permit for a building or structure shall apply to the Property and the Project, including any valid local modification to the State standards in effect at such time, including without limitation the applicable provisions of the Uniform Building Code, Uniform Plumbing Code, Uniform Mechanical Code, National Electrical Code. and Uniform Fire Code. (v) Public Works Improvement Standards. To the extent Developer is constricting or installing public works or facilities, the standards in effect City-wide for such public works or facilities at the time of City's issuance of a permit. license. or other authorization for construction or installation of same shall apply to the Property and the Project. [vi} Assessment District and/or Community Facilities District. The provisions of'an't benefit assessment distnct, community facilities district. business improvement district. or similar financing district that is validly formed pursuant to applicable law and made applicable to the Property and similarly situated property, provided, however, Developer does not hereby consent to the formation of any such district or to the imposition of any benefit -assessment. special tax, fee, or charge against Developer or the Property with respect thereto, and Developer expressly reserves all of its legal rights with respect to the formation of any such district and the "} imposition of any assessment, special tax, fee, or charge against DeyeIoper or the Property . 131 102145:9 41 DOC / including without limitation such rights to object anal protest thlit \\ould exist in the .absence of this Agreement. tj D=l9W f: I 0I. W 1J clop► W [elm 3.1 Effective Date ofAgreement. Subject to the applicable provisions of the California Elections Code relating to referendum petitions, this Agreement shall be effective on the date of the later happening of (i ) 12:01 a.m. on the thirtieth (30th) day following the Council's adoption of its ordinance approving the Agreement, or (ii) the date of delivery to the City of a fully executed and acknowledged QUITCLAIM DEED and EASEMENT DEEDS described in the Dedication Agreement in Exhibit F (the "Effective Date"), 3.2 Duration of Agreement. This Agreement shall be operative Commencing on the Effective Date and continue thereafter until the date that is twenty (20) years after the Effective Date, unless other,,, -Ise extended by the Parties, subject to earlier termination upon the completion, performance, and discharge of all obligations hereunder. In this regard, the term of this Agreement shall expire as to any separate legal parcel comprising the Property on the later of the following dates: (i) the date on which City issues its final certificate of occupancy or final inspection permitting occupancy of the completed building improvements for the development authorized by this Agreement or (11) such later date or dates on which the initial tenants or occupants of the completed building improvements commence occupancy of the premises. Upon termination of this Agreement as to the Property as a whole or any separate legal parcel, each Party agrees to cooperate with the other in executing such document in recordable form as may be reasonably requested by the other Party to memorialize said termination. 3.3 Periodic Review. City shall periodically review Developer's performance of its obligations set forth in this Agreement as provided for in Government Code Section 63865.1 and City's Developmem Agreement Procedures and Requirements. In no event shall Citv's failure to timely conduct or complete a periodic review of Developer's performance restllt in a termination or modification of Developer's rights hereunder. 3.4 Defaults and Remedies. 3.4.1 Notice and Opportunity to Cure. Before this Agreement may be terminated or action may be taken to obtain judicial relief, the Party seeking relief ("Nondefaulting Patty") shall comply with the notice and cure provisions of this Section 3.4.1. The Nondefaultin; Party in its discretion may elect to declare a default under this Agreement in accordance %with the procedures hereinafter set forth for any failure or breach of the other Party (the "Defaulting Party") to perform any material ditty or obligation of the Defaulting Party in accordance «1th the terms of this Agreement. Howe-ver, the Non -Defaulting Party must provide written notice to the Defaulting Party setting forth the nature _iz 1021 4529 4 1.DOCi of the breach or failure and the actions. if arty. required 10 be undertaken by the Defaulnng Part\ to cure such breach or failure. The ❑efaultin2 Party shall be deemed in "default" Of its obligations set forth in this Agreement if said breach or failure can be cured, but the Defaulting Party has failed to take such actions and cure such default W ithin ten t lily days after the date of such notice (for monetary defaults) or within thirty (30) days after the date of such notice (for non -monetary defaults). If, however, a non -monetary default cannot be cured within such thirty (30) day period, as long as the Defaulting Party does each of the following: (i) notifies the Non - Defaulting Party In writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period; (ii) notifies the Non -Defaulting Party of the ❑cfaulting Party's proposed course of action to cure the default; (iii) promptly commences to cure the default within the thirty (34) day period; (iv) makes periodic reports to the Non - Defaulting Party as to the progress of the program of cure; and (v) diligently prosecutes such cure to completion; then in such event the Defaulting Party shall not be deemed in breach of this Agreement. 3.4.2 Default Remedies. Subject to the foregoing, in the event of an uncured default, the Non-DefaLlitiffi, Party, at its option, may institute legal action to cure, correct, or remedy such default, to recover the Non -Defaulting Party's damages, to enjoin any threatened or attempted violation, to enforce the terms of this Agreement by specific performance, or to obtain any other legal or equitable remedy. In addition, in the event of an uncured material default by Developer, City reserves its available remedies under the Development Agreement Statute and City's Development Agreement Procedures and Requirements to amend or terminate this Agreement; provided, however, that Developer does not hereby consent to any unilateral amendments to this Agreement that increase or materially alter Developer's obligations hereunder or that are not limited in purpose and effect to measures needed to cure or remedy the particular default in question. 3.4.3 No Cross -Defaults. Notwithstanding any other provision set forth in this Agreement to the contrar-. in the event that the Property is subdivided into two or more separate legal parcels and a default exists with respect to one or more but not all of said separate legal parcels, the default shall not be considered to be a default as to the separate legal parcel or parcels as to which no such default exists and City shall not be entitled to any legal or equitable remedies wilth respect to the non - defaulted parcel or parcels of the Property or to enforce or terminate this Agreement \vith respect thereto. Also notwithstanding any other provision set forth in this Agreement to the contran-. In the event that this Agreement is assigned by Developer in connection with the sale, lease. sublease, or other transfer pursuant to Section 3.9. and a default exists with respect any part of the Property so sold, leased, subleased, or otherwise transferred, such default shall not be considered a default as to any remaining Property and the City shall not be entitled to any legal or equitable remedies with respect to the non -defaulted portion of the Property or owner of said Property or to enforce or terminate this Agreement with respect thereto. e 3-5 [0214{29 41 oor/ 3.4.4 Force Maieure. The obligations of either Partv hereunder shai! not lie deemed to be in &fault where delays or failures to perform are due to any cause '%� Ithout the fault and beyond 111C reasonable control of such Party. 3.5 Mortgagee Rights. 3.5.1 Encumbrances on the Propert . 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 i-nortgage, deed of trust, sale and leaseback, or other form of secured financing ("Mortgage") with respect to the construction. development, use, or operation of the Project. 3.5.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage recorded after the date that this Agreement is recorded. 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 OF with respect to the Property or any portion thereof by the holder of a Mortgage to "Mortgagee"). whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise, shall 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 shall be entitled to the benefits arising under this Agreement. In addition, any Mortgagee whose Mortgage is senior to the encumbrance of this Agreement shall have the right, exercisable by written notice to City, to elect to subordinate its Mortgage to the lien of this Agreement and, if the lien of this Agreement has been terminated for any reason due to the foreclosure of said Mortgage or other lien or encumbrance senior to the lien of this Agreement, to negotiate %vith City to enter into a nev, Agreement with City on similar terms and conditions as set forth herein and with the rights am obligations of the Parties to be the same as they would have been had this Agreement not been So terminated. 3.5.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 3.a. a Mortgagee will not have and obligation or duty 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 shell performance, except that (i) the Mortgagee shall have no right to develop the Project •vithout fully complying with the terms of this Agreement and (ii) to the e%tent that any covenant to be _ performed by Developer is a condition to the performance of a covenant by City, the u l . . performance thereof shall continue to be a condition precedent to City's performance hereunder-_;= 1�� 102I4529 4l DOCI 3.5.4 Notice of Default to Mortgagee. Right of Mort�a ee to Cure. Each Mortgagee shall, upon written request to ot,. be entitled to receive "rittell notice from City of the results of the periodic reviekk conducted pursuant to Section 3.3 and of any default by Developer of its obligations set forth in this Agreement. 3.5.5 Bankruptcy. If this Agreement is rejected by Developer or other« Ise terminated in connection with any bankruptcy or insolvency proceeding, then upon the request of any Mortgagee, City° shall negotiate with it to enter a new development agreement upon similar terms and conditions as set forth in this Agreement. 3.6 Notices. A^v notice or communication required hereunder between City 'ind Developer must be itt writing and may be given either personally, by a reputable overnight courier service providing a receipt confirming delivery, or by registered or certified mail, return receipt requested. If ;ivell by overnight Courier or registered or certified mail, the same shad be deemed to have been given and received on the date of actual receipt by the addressee designated below as the Party to whom the notice is to he sent. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. A Party hereto may at any time, by giving ten ( l fi) days written notice to the other Party hereto, designate any other address i n substitution of the 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 of Costa Mesa 77 Pair Drive Post Office Box 1200 Costa Mesa, CA 92628-1200 Attn: City Manager If to Developer: Sakioka Farms and Roy K. Sakioka & Sons 14850 Sunflower Avenue Santa Ana, California 92707 Attn: George Sakioka with a copy to: Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, Cali fornia 90071 Attn: Amy R. Forbes, Esq. 3.7 Severability. If any term, provision, covenant, or condition set forth in this agreement is held by the final judgment of a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions, covenants, and conditions shall continue in Cull force and effect to the extent that the basic intent of the Parties as expressed herein can be accomplished. In addition. _ 10211529 4l DOO in such event the Parties shall cooperate in good faith in an Lflbrt to amend or modify this Agreement in a manner such that the purpose of the ins atidat�d or voided provision. co%enant. and condition can be accomplished to the ma.r-imum extent legally, permissible; provided. however, that in no event shall either Party be required to agree to an amendment or modification of this Agreement that materially adversely impacts its rights or materially increases its obligations or risks as set forth herein. 3.8 Time of Essence. Time is of the essence in the performance of each provision of this Agreement. 3.9 Successor and Assigns. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. To the extent of Developer's (and its successors' and assigns') interest in the Property, the covenants of Developer set forth in this Agreement shall be covenants running with the land and enforceable to the full extent permitted by applicable law. Nothing set forth in this Agreement shall prohibit Developer from selling, leasing. subleasing, or otherwise transferring all or any portion of the Property together with a transfer or assignment of ail of the rights and obligations of this Agreement as they apply to such portion of the Property, and City's approval or consent shall not be required in connection therewith. Upon the effective date of any such sale, lease, sublease, or other transfer, the seller, lessor, sublessor. or other transferor automatically shall be released from any executory obligations to Clty hereunder with respect to the portion of the Property so sold, leased, subleased, or transferred; provided, however, that unless City releases the seller, lessor, sublessor, or other transferor in writing, it shall remain responsible to City for performance of any obligations as to which it �, as in default as of the effective date of the transfer. 3.10 Litigation Expenses. In any judicial proceeding or arbitration (collectively. "Action") in any way connected with or arising out of any of the terms and provisions of this agreement, the prevailing Party ill such Action shall be awarded all of its actual and reasonable costs and expenses G hether or nct the same would be recoverable pursuant to Code of Civil Procedure Section 1033.5 or 171- in the absence of this Agreement), including expert % itness fees. attorney's fees, and costs of investigation and preparation prior to the commencement of the action. The right to reco'� er such casts and expenses small accrue upon commencement o f the Action, regardless of �k hether the Action is prosecuted to a final judgment or decision. 3.11 Parties in Interest. This Agreement and all of its terms, conditions, and provisions are entered into only for the benefit of the Parties executing this Agreement (and their respective successors in interest). and not for the benefit of any outer individual or entity. 10214j29 y l DOC/ 3.12 Further .actions and Instruments. Each Party shall cooperate with and provide reasonable assistance to the other Party [o the extent necessary to implement this Agreement. Upon the' request of either Party at any- time. the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required. and file or record such required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 3.13 Estoppel Certificates. Either Party hereunder may, at any time, deliver written notice to the other Part% requesting such Party to certify in writing that, to the best knowledge of the certifying Part%,. (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended or modified either orally or in writing, and if so amended. identifying the amendments, and (iii) the requesting Party is not in default in the performance of its obligations set forth in this Agreement or, if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. .any third party including a Mortgagee shall be entitled to rely on the Certificate. 3.14 Recordation. No later than ten (10) days after the Effective Date of this Agreement, the City Clerk shall record a copy of this Agreement in the Official Records of the Recorder's Office of Orange County. 3.15 Applicable Law, This Agreement shall be construed and enforced in accordance with the internal Ia�N s of the State of Cali forma. 3.16 Approvals; Reasonableness. Except when this Agreement specifically authorizes a Party to withhold its approval or consent in its sole and absolute discretion, when either City or Developer shall require tht approval or consent of the other Party in fulfilling any covenant. pro% ision, or condition set forth herein, such approval or consent shall not be unreasonably . ithheld. conditioned. or delayed h, - the Party from whom such approval or consent is sought. 3.17 Amendments and Waivers. No modification or amendment of this Agreement or any of the provisions hereof shall be effective for any purpose unless forth in a writing signed by duly authorized representatives o f both Parties. No waiver of any provision of this Agreement shall be effective unless in w•ritino and signed by a duly authorized representative of the Partv a,ainst whom enforcement of a waiver is sought. No waiver of any right or remedv in respect to any' occurrence or event shall e7 14214529 4k.DOC/ be deemed a waINer of an-v right or remedy in respect to -an% oilier or subsequent occurrence L-11- event. 3.18 Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties and supersedes all previous negotiations, discussions, and agreements between the Parties mc-ith respect to all or part of the subject matter hereof. No parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this Agreement. IN WITNESS WHEREOF. each of the Parties has executed this Agreement on the date First above written. CITY OF COSTA MESA B v: ("�-- MA OFT E Cl F COSTA MESA ATTEST: f CITY74�7 RK, CITY OF COSTA MES APPROVED AS TO FORM: CITY ATTORNEY, CITY OF COSTA MESA Dated: , " - 9 `I SAK10KA FAR-NIS, a Call forma general partnership MARJACK, LLC. a California limited liability company BV: !�_ _ y/,- MA �' K. SAKIOKA, Manager OY' T. SAKIOIjfk Manager 7- �� 1021452941 DOC.' Development Agreement for Sakioka Farms Development Property Dated: 1 a214529 a l DOC/ JKS-SF. LLC. a California Iimited liability companv By: ORGE V .K. SAKIOKA, Manager THE ARTHUR MASAKI SAKIOKA FAMILY TRUST } Fl By:_ ARTHUR yIASAKI SAKJOKA, Co - Trustee of The Arthur Masaki Sakioka Family Trust U,'D/T dated November 25, 1986, as amended By: e MARILYN AKTOA, Co -Trustee of The Arthur Masaki Sakioka Family Trust UIDrT dated November 25, 1986, as amended ROY K. SAKIOKA & SONS, a California general partnership THE ROY K. SAKIOKA TRUST WW -0 WVAF R - AOHNNI? KATSUI SAKIOKA, Co - rust e o f The Rov K- Sakioka Trust U D+T dated Julv 13, 1982, as amended, general partner .ARTHUR M ASAKI SAKIOKA, Co - Trustee of The Rev K. Sakioka Trust U D T dated July 13. 19S2, as amended, general partner NlAe KIY KO SAKIOKA, Co - Trustee of The Rov K. Sakioka Trust U/D,T dated July l 3- I9S2. as amended, general partner ; c- Development Agreement for Sakioka Farms Developinent Property THE TOMIO S_%KIOK-% TRUST o By: HNNIY/<ATSUI SAKIOKA, Co Trustee ok The Tornio Sakioka Trust U,`DiT dated July 13. 1982, as amended, general partner By: ARTHU MASAKI SA IOKA,.Co- Trustee of The Tomio Sakioka Trust UiD/T dated July 13, 1982, as amended, general partner MA# KIYQRO SAKIOKA, Co- Trus ee of The Tornio Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner THE ARTHUR MASAKI SAKIOKA FAMILY TRUST By: k ZEd ARTHUR . ASAKI S IOK-A, Co - Trustee of The Arthur Masaki Sakioka Farnily Trust U- D T dated November 25. 1986. as amended. general partner By: MARILIOK-A. Co -Trustee of The Arthur 1v-tasaki Sakioka family Trust U D T dated November 25, 1986, as amended, general partner 40 _ De�rel❑Kent Arent fof Sakioka 102[4529_4i.DOC) FarTns ve ❑ nt Proper y STATE OF CALIFORNIA } ss. COUNTY OF On dG , before me, ��ae,,&AJ IVY f ft PrR. y-, personally appeared 6-ee Gr& it k ct+ io%. _personally known to me ( [o be the personof whose nameV is,4 f -subscribed to the within instrument and acknowledged to me that he/4he*tep executed the same in hisAwg#wir authorized capacity{; and that by hisi6er4kok signatures(,s'}' on the instrument the personal or the entity upon behalf of which the persons`} acted, executed the instrument. Witness my hand and official seal. >� aCxwrvydmkPn # 11906" orawcovity CS STATE OF CALIFORNIA } ) ss. COUNTY OF d` 'Al �-- ) On a n M 9 , before me, 70ez4 �4 � , personally appeared 7-0 It h ri o k, i ❑ C-o��+ personally known to me to be the person(4 whose namet.$) is/arm subscribed to the within instrument and acknowledged to me that hem- � executed the same in his4t*r4 r authorized capacity(ies), and that by ht'S-heFthOif signature4sj on the instrument the person(g) or the entity upon behalf of which the personal acted, executed the instrument. Witness my hand and official seal. PEGGY J. BOWEN di Idl CaPnr>tiMM * 1190693 Nota P ' Notary MAAc - cori mic 0mrae county [SEA my Comm. Eq*mJut31,2M2 10214529 41 DOC! STATE OF CALIFORNIA ) ss. COUNTY OF IOAA14--� } On , before me, wteA) , personally appeared t personally known to me to be the person' whose name 6j isles subscribed to the within instrument and acknowledged to me that-ht�she/ executed the same in 4slherl*#ek authorized capacity(ics), and that by lia?her4hecr signatures(Al on the instrument the person or the entity upon behalf of which the person} acted, executed the. instrument. Witness my hand and official seal. Notary Pluglid [SEAL] STATE OF CALIFORNLk ] ss. COUNTY OF r r � On Ze , 2 , before me, e-4G� J, 40aAFLI'40� personally appeared personally known to me a to be the person whose nameud isfd-,- subscribed to the within instrument and acknowledged to nee that he executed the same in his4temlicir authorized capacity(ieS), and that by his+er-� signaturea on th4 instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Nota icJ [SEAL] 10214529 41 DOC' STATE OF CA.LIFORNIA } 55. COUNTY O„ ,�-,elv7a On e— 11W % , before me, a -//3/ personalty appeared -310 personally [mown to me or roved to me on the basis of satisfactory evidence) to be the pers ( whose nart�e(s j isl r ubscribed*�thithin instrument d acknowledged to me that he/s the ex ccted the same in his/her)horized caps y(ies and that by htsiher eir ignatur (s on the instrument the por the entity n ehalf of which the pers s) cted, executed the instrument. Witness my hand and official seal. .' :mac CANDEL►1RrA L SAL.AZAR COMM. #11141 GG � ' 43rAaYF'MiC4CALtFOMIA M ` VENTURA COUNTY � c ! 1 Cammmm E" OCT 26. 2000 j [SEAL] STATE OF CALIFORNIA } ss. COUNTY OF } C Notary Public r" On , before me, , personally appeared personally known to me (or 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/sheithey executed the same in his/her/their authorized capacity(ies), and that by his her their signaturesls) on tht instrument the person(s) or the entity upon behalf of " h i c h the personfs) acted. CXCCUted the instrument. Witness my hand and official seal. Notary Public [SEAT.] io2i4529 s1 DOO 4;3 STATE OF CALIFORNIA ) 5S- CoUNTY OF 4 G ) Aki* an .7� / , before me, O personally appeared 1�u r �,personally known to me to be the person ��j whose name} is/are-subscribed to the within instrument and acknowledged to me that-ire/she404"xecuted the same in-h4&1her/4kei-r authorized capacity( s'j and that by hrss'her/t4etr signaturesk�on the instrument the person or the entity upon behal f of which the person acted, executed the instrument. Witness my hand and officiai seal. PEG4Gr J. BOW EN r Corraftssicn 1t 1190693 Nagy Pubfic - Coll#omlO Orange County My Comm. EN*es Jul 31. 2M2 r STATE OF CALIFORNIA } ss. COUNTY 4F } �J Notary' On , before m . ri/ personally appeared personally known to me to he the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that kc,'sii /they executed the same in hieAw/their authorized capacity(ies), and that by ter-her?their signatures(s) on the instrument the person(s) or the entity upon behalf of «hich the person(s) acted, executed the instrument. Witness my hand and official seal. E1.AINE 5f "4ARDI r;:Z0-'2"MamrnMk)n 11115811 Notav RAAC — C ff0v M+ Ord19 Cooky My Cori m EMFw Nov W 20M [SEAL] 102 14529 41.1300 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY SAKIOKA LOT I AND SAKIOK-A LOT i LEGAL DESCRIPTION SAKIOKA LOT l : Lot B and that portion of Lot 1 of Tract No. 10950, in the City of Costa Mesa, County of Orange, State of California, as shown on a map recorded in Book 515, Pages l to 5 inclusive of Miscellaneous Maps, in the office of the County Recorder of said County, described as follows: Parcel 2 of Lot Line Adjustment No. LL-90-11 recorded April 16, 1991 as Instrument No. 91-178038 of Official Records. LEGAL DESCRIPTION OF SAKIOKA LOT 2: Lot 2 of Tract No. 10950, in the City of Costa Mesa, County of Orange, State of California, as shown on a map recorded in Boole 515, Pages 1 to 8- inclusive of Miscellaneous Maps, as amended by a Certificate of Correction recorded April 23. 1986 as Instrument No. 85-160488 of Official Records of Orange County, California. Except therefrom that portion of said land as granted to the City of Costa Mesa, a political subdivision of the State of California by Grant Deed dated October 10, 1994 and recorded October 11, 1994 as Instrument No. 94-604167 of 0fficial Records. 10214529 41.DOG 4(5� EXHIBIT "B" LIST OF EXISTING DEVELOPMENT APPROVALS 1. City of Costa Mesa General Plan, all Elements (including General Plan Amendment GP- 98-08 and all other amendments approved on or before the Effecti-,•e Date). 2. North Costa Mesa Specific Plan (SP-94-01)(includirig Specific Plan Amendment SP-9s- 04 and all other amendments approved on or before the Effective Date). 3. Development Agreement DA 99-62. 4. Tract Map 10954, recorded in Book 515, Pages 1 to 8, inclusive, of Miscellaneous iiaps. in the Orange County Recorder's Office on September 19, 1983, as corrected by the Certificate of Correction recorded as Instrument No. 86-160488 of the Official Records of Orange Count%,. California on April 23, 1986. Y . S- 102 1452941-DOCI EXHIBIT "C" LIST OF FUTURE DEVELOPMENT APPROVALS Subdivision or Parcel Map approval. 2. Site Plan approval and/or final master plan for Project. 3. Sign permit approval(s) and/or planned signing program approval. Building permits and all other ancillary permits required by other uniform codes. 4. Building permits and all other ancillary permits required by other uniform codes. 5. Other approvals sought, at the election of Developer, to alter, amend or modify, Existi«Y� Development Approvals. I0213529 41-DOCI EXHIBIT "D" LEGAL DESCRIPTION OF THE "555 PARCELS" LOTS 5 AND 7 OF TRACT NO. 19950, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 515, PAGES 1 TO 8, INCLUSIVE OF MISCELLANEOUS MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. SAID LAND IS ALSO SHOWN AS PARCELS l AND ? ON THAT CERTAfN LOT LINE ADJUSTMENT NO. 90-04 RECORDED TUNE 7, 19W AS INSTRUMENT NO. 90- 303989, AND RE -RECORDED DUNE 26, 1999, AS INSTRUMENT NO. 90-338191. OF OFFICIAL RECORDS OF SAID COUNTY. 10215529 41 ❑OO EXHIBIT "E" LEGAL DESCRIPTION OF THE "SOUTH COAST METRO CENTER PROPERTY" LOTS 3, 4, 6, 8, 9 AND 10 OF TRACT NO. 10950, IN THE CITY OF COSTA MESA. COUNTY OF ORANGE, STATE OF CALIFORNIA, AS S HOlk'N ON A MAP RECORDED IN BOOK 515, PAGES I THROUGH 8 INCLUSIVE OF MISCELLANEOUS MAPS. RECORDS OF ORANGE COUNTY, CALIFORNIA. AND AS CORRECTED BY THAT CERTAIN CERTIFICATE OF CORRECTION RECORDED APRIL 23, 1986 AS INSTRUMENT NO. 86-160488 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY. 1 Ux 14524_41.DOCI 4� EXHIBIT "F" DEDICATION AGREEMENT BETWEEN THE CITY AND DEVELOPER RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Costa Mesa 77 Fair Drive Post Office Box 1200 Costa Mesa, CA 92628-I200 Attention: Director of Public Services (Space Above This Line For Recordees Use) The undersigned declares that this document is recorded at the request of and for the benefit of the City of Costa Mesa and is therefore exempt from the payment of the recording fee pursuant to Government Cade Section 6103 and from the payment of the documentary transfer tax pursuant to Revenue and Taxation Code Section 11921 DEDICATION AGREEMENT THIS DEDICATION AGREEMENT (the "AGREEMENT") is made and entered into, to be effective pursuant to Paragraph 5(k) below, by and between the CITY OF COSTA MESA., a California municipal corporation (the "CITY"), and SAKIOKA FARMS, a California general partnership ("SAKIOKA"), and ROY K. SAKIOKA AND SONS, a California general partnership ("RKS")(SAKIOKA and RKS are collectively referred to as "SAKIOKAtRKS"). CITY and SAKIOKA/RICS are sometimes referred to herein individually as a "PARTY" and collectively as the "PARTIES". RECITALS A. SAKIOKARKS is the fee owner of that certain real property as follows: The property legally described on Exhibit "S" hereto (the "SOUTH COAST METRO CENTER PROPERTY"). The western portion of the SOUTH COAST METRO CENTER PROPERTY includes a portion of Avenue of the Arts (the "PRIVATE ROAD"), a private street. 2. The property legally described on Exhibit "6" hereto (the "SAKIOKA PROPERTY"). Sakioka CM Dev. Agreement Final Draft I I J Ue9l) 3. The property legally described on Exhibit 7" hereto (the "555 PARCELS"). B. The CITY, working with the Orange County Transportation Authority ("OCTA") and the California Department of Transportation ("CALTRANS"), is engaged in a public works Project to improve the Interstate 405 and State Route 55. As a part of such public works project (the "PROJECT"), CITY, OCTA and CALTRANS propose to design and construct (1) an off - ramp from the northbound Interstate 405 (the "OFF -RAMP") to and onto the existing PRIVATE ROAD, which will be converted to a public road, and (2) an on -ramp to the northbound Interstate 405 (the "ON -RAMP"). Collectively the OFF -RAMP and ON -RAMP are referred to as the "RAMPS". C. Pursuant to that certain Development Agreement (DA �� between CITY and SAKIOKAIRKS, effective on or about ,1999, (the "SAKIOKA FARMS DEVELOPMENT AGREEMENT"), CITY has requested that SAKIOKAfRKS execute and deliver to CITY a quitclaim deed relinquishing to CITY its fee interest (the "QUITCLAIM DEED"), in its entirety, in those portions of the SOUTH COAST METRO PROPERTY, THE SAKIOICA PROPERTY, and the 555 PARCELS that are more particularly described in Exhibit "1" attached hereto and incorporated herein by reference (the "QUITCLAIM AREA"). Exhibit "1" also includes a map which identifies in pink the property which is the subject of the QUITCLAIM DEED. The PARTIES acknowledge that the reap identifies the PROJECT area, but has not yet been finalized by the California Department of Transportation ("CALTRANS"). The PARTIES agree to substitute the final map into Exhibit "1" in place of the present map once CALTRANS finalizes and signs the map. The QUITCLAIM DEED shall include all access and abutter's rights associated with the fee interests described in Exhibit "I". The fee interest which is the subject of this dedication shall be used for (1) freeway/state highway, on -ramp, off -ramp, transition road and street purposes, including related improvements thereto, (2) construction of such uses and (3) maintenance and repair thereof. The parties acknowledge that accomplishment of these purposes may require subsequent dedication of this fee interest by the CITY to, among others, CALTRANS. D. CITY has further requested that SAKIOKAIRKS execute and deliver to CITY two easement deeds (the "EASEMENT DEEDS") granting to CITY, or its designee, (i) a permanent and perpetual easement for street purposes, including maintenance and repair thereof, for the portion of the PRIVATE ROAD located on the SOUTH COAST METRO CENTER PROPERTY that extends from the terminus of the OFF -RAMP to the intersection of Avenue of the Arts and Anton Boulevard (portion 1 of the "EASEMENT AREAS"), and (ii) a permanent and perpetual easement for a 12-inch water pipeline (portion 2 of the "EASEMENT AREAS"). The EASEMENT DEED for portion 1 of the EASEMENTS AREAS shall also include access and abutter's rights for portion 1 of the EASEMENT AREAS. The EASEMENT AREAS are more particularly described on Exhibit "2" attached hereto and incorporated herein by this reference. Exhibit " 2" also includes a map that identifies the property which is the subject of the EASEMENT DEEDS. 4- i Sakioka Cb! Dev. Agreement Final bract I I/10199 E. SAKIOKA/RKS is willing to execute and deliver the QUITCLAIM DEED and the EASEMENT DEEDS upon the terms and subject to the conditions set forth in this AGREEMENT and in the SAKIOKA FARMS DEVELOPMENT AGREEMENT. AGREEMENT IN CONSIDERATION OF the foregoing recitals and the mutual covenants set forth herein, CITY and SAKIOKA/RKS agree as follows: 1. Execution and Delivery of Deed. SAKIOKAIRKS agrees to execute, acknowledge, and deliver the QUITCLAIM DEED and the EASEMENT DEEDS, in substantially the form attached hereto as Exhibits "3" and "4", respectively, within ten (10) days after the execution of this AGREEMENT by the PARTIES. Exhibits "T' and "4" are incorporated herein by this reference. Subject to Section b(m), SAKIOKAIRKS's performance of the aforementioned obligations and the obligations set forth in Section 1(a) shall be conclusively deemed to satisfy SAKIOKAIRKS's obligation as Developer set forth in clauses (i) through (iii) of Section 2.1 of the SAKIOKA FARMS DEVELOPMENT AGREEMENT. (a) Within ten (10) days after execution of this AGREEMENT by the PARTIES, SAKIOKAIRKS shall provide CITY with a current (issued within- 14 days of execution of this AGREEMENT) preliminary title report or title policy showing the fee vesting of the QUITCLAIM AREA and the EASEMENT AREAS. (b) Notwithstanding paragraph 1 above nor paragraph 3.1 of the Development Agreement, if the necessary legal descriptions are not available to complete the EASEMENT DEED for the relocation of the water pipeline easement at the time of the execution and delivery of the EASEMENT DEED for portion 1 of the EASEMENT AREAS, in lieu of executing and delivering an EASEMENT DEED for portion 2 of the EASEMENT AREAS, SAKIOKAIRKS shall within thirty (30) days of the receipt of written notice from the CITY, but in no event later than three (3) years from the date of this Agreement, irrevocably offer to dedicate an easement to CITY, or to Mesa Consolidated Water District, if CITY so designates, for water pipeline purposes, including construction, repair and maintenance thereof, in a location on the SOUTH COAST METRO CENTER PROPERTY that does not conflict with any buildings or structures and that is to be agreed upon by CITY, SAKIOKAIRKS and the Mesa Consolidated Water District. The PROJECT shall bear the entire cost of relocation of the water pipeline and restoration of SAKIOKAIRKS property and BREISOUTH COAST's leased property affected by the relocation to the condition existing prior to relocation of the water pipeline. No additional compensation from CITY shall be required for acquisition of this easement. SAKIOKAIRKS shall use good faith efforts to cooperate in preparation of all documents necessary for the timely dedication of the water pipeline easement. 2. City Covenants. In consideration for SAKIOKA/RKS's covenants contained in Paragraph 1 above, CITY hereby covenants and agrees as follows: (a) Within ten (10) days of receiving the last to be received of the QUITCLAIM DEED and the EASEMENT DEEDS, the current preliminary title report, CITY 5akioka CM Deg. Agreement Final Draft 1 i11U199 shall cause the dedication of the QUITCLAIM AREA, and the EASEMENT AREAS to be accepted and the DEEDS to be recorded. From and after (1) CITY recordation of the EASEMENT DEEDS relating to the EASEMENT AREAS, and (2) the CITY recordation of deeds/conveyances conveying to CITY interests, satisfactory, to the CITY, of others holding property interests in the PRIVATE ROAD, the PRIVATE ROAD shall become a public street in accordance with all applicable laws. (b) There shall be no additional trip fees, assessments or other charges, to or against SAKIOKAIRKS, or the SOUTH COAST METRO CENTER PROPERTY, the SAKIOKA PROPERTY, or the 555 PARCELS in connection with (i) the delivery and acceptance of the DEEDS, (ii) the design of the RAMPS; (iii) the cost of the construction of the RAMPS, or (iv) the maintenance and operation of the RAMPS. (c) It is understood that construction of the RAMPS may result in damage to existing improvements on the SAKIOKA PROPERTY, the 555 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY and necessitate the construction and installation of new curbs, gutters, sidewalks, retaining walls and planters, driveway entrances, parking lot improvements, lighting, utility lines, and perimeter landscaping and irrigation systems on the portions of the SAKIOKA PROPERTY, the 555 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY adjacent to the RAMPS. Nothing in this AGREEMENT is intended or shall be construed as a waiver or release by SAKIOKA/RKS of the right to exercise any rights it may have in taw or equity to have any such damage repaired in conjunction with construction of the RAMPS, to have the SAKIOKA PROPERTY, the 555 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY restored as nearly as possible to the same quality level and functional condition as exists on the effective date of this AGREEMENT, or any right of compensation that SAKIOKA/RKS may have with respect thereto. Not by way of limitation of the foregoing, CITY, as provided in Paragraph 3 below, shall work with SAK.IOKA/RKS in the design of the RAMPS and related improvements to alleviate as much as reasonably possible any adverse impacts to the SAKIOKA PROPERTY, the 555 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY. Notwithstanding any other provisions of this Agreement, SAKIOKA/RKS acknowledges that it has been provided with the QUITCLAIM AREA location and will not construct new improvements in that location. (d) During construction of the OFF -RAMP and other improvements associated with the OFF -RAMP, CITY will keep the PRIVATE ROAD open as a public street and alleviate adverse traffic circulation impacts to the extent practically possible, 3. Right of Review and Comment. CITY and SAKIOKA/RKS shall each cooperate as reasonably requested by the other in the design, planning, scheduling and construction of the RAMPS and all related improvements. Without limiting the generality of the foregoing, CITY shall, from time to time, furnish to SAKIOKA/RKS copies of (a) all design plans and construction drawings for the RAMPS and all related improvements, (b) all construction schedules with respect to the RAMPS and all related improvements, and (c) all other materials, such as the locations of staging areas, street closures, phasing schedules and other items and activities which will or may affect entry and exit from the SAKIOKA PROPERTY, the 555 55 Saki oka CM Deg. Agreement Final Draft l I/10/99 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY and/or operation of the SAKIOKA PROPERTY, the 555 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY generally. SAKIOKAIRKS shall not have a right of approval of the materials submitted by CITY pursuant to this paragraph. However, SAKIOKA/RKS shall be afforded the opportunity to comment upon such materials and to offer suggestions to assist the efficiency of the design and approval process and to mitigate or eliminate any deleterious impact on the SAKIOKA PROPERTY, the 555 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY and to ensure compliance with paragraph 2(c) above. All such materials shall be supplied to SAKIOKA/RKS as far in advance of the scheduled activities as reasonably practicable to enable SAKIOKAfRKS to effect adjustments in the operation of the SAKIOKA PROPERTY, the 555 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY and its tenants' operations as necessary to accommodate construction of the RAMPS and related improvements. CITY shall also invite a representative of SAKIOKA/RKS to attend meetings of CITY, OCTA and CALTRANS, at which decisions concerning the RAMPS and the related improvements are to be made, with an opportunity to comment (but not to approve)_ 4. Sales and Reliance. It is agreed that any purchaser of all or any portion of SAKIOKA/RKS's interest in the SAKIOKA PROPERTY, the 555 PARCELS, and/or the SOUTH COAST METRO CENTER PROPERTY is intended to be a third party beneficiary of the covenants of CITY contained in this AGREEMENT and shall, as successor to SAKIOKA/RKS, be bound by the covenants of its predecessor -in -interest contained herein. Accordingly, this AGREEMENT shall bind and inure to the benefit of the parties hereto and their respective successors and assigns and shall be recorded. 5. No Representations/Release from Liability. (a) As Is Physical Condition. SAKIOKA/RKS makes no warranty or representation to CITY as to the physical condition of the EASEMENT AREAS and QUITCLAIM AREA, the suitability of the soils, the presence or absence of any hazardous or toxic substances or materials (as classified by any Federal, State, or local statute, regulation, ordinance, or official policy, and expressly including any petroleum -based substances), the presence or absence of any archeological or paleontological sites, or any other physical condition of any type or nature whatsoever, whether patent or latent, that may affect the suitability of the EASEMENT AREAS and the QUITCLAIM AREA for the purposes for which CITY is acquiring an easement and dedication in it (i.e., for construction and maintenance of the RAMPS and related improvements) or that may affect the cost of constructing the RAMPS, the dedication of the Private Road, and related improvements. CITY acknowledges that it is relying solely upon the CITY's inspection, investigation, and analyses of the physical condition of the EASEMENT AREAS and QUITCLAIM AREA and is not relying upon any representations, statements, agreements, warranties, or other information or material furnished by SAKIOKA/RKS, or any of its officers, employees, or agents, whether oral or written, express or implied, of any type or nature whatsoever regarding any such matters. Upon the acceptance and recordation of the DEEDS, pursuant to paragraph 2 of this AGREEMENT, CITY will be acquiring its easement rights in and to the EASEMENT AREAS and the fee interest rights of SAKIOKA/RKS in and to the QUITCLAIM AREA for the purposes authorized herein. sakioka CM Dev. Agreement Final Draft I i 110199 (b) Condition of Title. Except for the representations set forth in Recital A of this AGREEMENT and Section 6(l) below, SAK.IOKAIRKS makes no warranty or representation to CITY with respect to the condition of title in and to the EASEMENT AREAS and QUITCLAIM AREA or with respect to the nature or extent of CITY's rights relative to other persons or entities who may claim any right, title, or interest therein. It shall be CITY's sole obligation to acquire whatever other easement rights, leasehold rights, or other property interests which may be held by third parties in a portion of the EASEMENT AREAS and QUITCLAIM AREA which need to be acquired in order for the RAMPS, the public street, and related improvements to be constructed and maintained. 6. General Provisions. (a) Governing Law. This AGREEMENT concerns real property located in the State of California and shall be governed by and construed in accordance with the laws of such State. (b) Counterparts. This AGREEMENT may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute a single instrument. It shall not be necessary for both parties to execute the same counterpart(s) of this AGREEMENT for this AGREEMENT to become effective. (c) Costs. Each parry shall bear its own costs and fees incurred in the preparation and negotiation of this AGREEMENT and, subject to subparagraph (d) below, in performance of its obligations hereunder. (d) Attorney Fees. In any action, arbitration or other legal proceeding between the parties arising out of or relating to this AGREEMENT, to prevent the breach or continued breach hereof, to seek damages an account of a breach, to seek a determination of the rights and obligations of the PARTIES hereunder or in which this AGREEMENT is interposed as a defense, the prevailing party shall be entitled to recover from the other party its reasonable attorney fees incurred, as well as reasonable expenses incurred in the prosecution or defense of such action, arbitration or other legal proceeding. The court or arbitrator before which such action, arbitration or other proceeding is pending shall be authorized to determine the "prevailing party", the amount of "reasonable attorney fees" and the amount of "reasonable expenses" to be recovered. (e) Entire Agreement. This AGREEMENT and the Exhibits hereto constitute the entire AGREEMENT between the PARTIES with respect to the subject matter hereof, and supersede all prior understandings, agreements and representations, written or oral, between the PARTIES with respect to the subject matter hereof. (0 Notices. All notices required or permitted pursuant to this AGREEMENT shall be in writing and shall be personally delivered or sent by registered or certified mail, or reputable overnight courier, to the PARTIES at their respective addresses: ,5Y sakioka CM DeY. Agreement Final Arab i 1110199 If to CITY OF COSTA MESA: City of Costa Mesa 77 Fair Drive Post Office Box 1200 Costa Mesa, CA 92628-1 200 Attention: Director of Public Services With a copy to: CITY ATTORNEY City of Costa Mesa 77 Fair Drive Post Office Box 1200 Costa Mesa, CA 92628-1200 With a copy to: WOODRUFF, SPRADLIN & SMART 701 South Parker Str,=t, Suite 7000 Orange, CA 92868 Attention: Thomas F. Nixon, Esq. If to SAKIOKA/RKS: SAKIOKA/RKS 14850 Sunflower Avenue Santa Ana, CA 92707 Attention: George Sakioka With a copy to: GIBSON, DUNK & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Attention: Amy. R. Forbes, Esq. Notices personally delivered shall be effective upon personal delivery. Notices sent by registered or certified mail, return receipt requested, postage prepaid and properly addressed shall be effective on the date of receipt or refusal indicated on the return receipt. Notices sent by overnight courier shall be effective on the date of receipt or refusal indicated on the courier's delivery receipt. Either party may change its address for notices by written notice to the other party given in the manner provided in this subparagraph. (g) Amendments. This AGREEMENT may be amended only by a writing executed by the parties hereto or their respective successors and assigns. (h) Headin s. The paragraph and subparagraph headings contained in this AGREEMENT are inserted for convenience only and shall not affect in any way the meaning or interpretation of this AGREEMENT- (i) Severability. If any provision of this AGREEMENT is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall -4 5akioka. CM peg. Agreement Final Draft 1 1!10199 not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. (I) Construction. The PARTIES have participated jointly in the negotiation and drafting of this AGREEMENT. In the event an ambiguity or question of intent or interpretation arises with respect to this AGREEMENT, this AGREEMENT shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall he no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this AGREEMENT. (k) Effective Date. This AGREEMENT shall become effective upon the last execution and delivery of this AGREEMENT by the PARTIES hereto. (I) Authority. SAKIOKA/RKS represents and warrants that it has the right to enter into this AGREEMENT and convey the interests referred to herein. The PARTIES acknowledge that SAKIOKA/RKS cannot convey any interest of its ground lessees and that SAKIOKA/RKS has no responsibility for obtaining or conveying the interests of its ground lessees. (m) Cooperation. Should CITY or CALTRANS, in their 6f their sole discretion, determine that the preparation of any additional documents, are required for the PROTECT, SAKIOKA/RKS shall cooperate in the preparation of such documents at no cost to either the CITY or CALTRANS in order to allow the PROJECT to proceed. (n) Assignment/Cancellation of Reciprocal Easement Agreement. Upon the date that the PRIVATE ROAD becomes a public street, any rights or obligations that SAKIOKA/RKS may have with reference to the PRIVATE ROAD under the Declaration Establishing Reciprocal Easements and Maintenance Obligations, recorded in the Orange County Recorder's Office as Instrument No. 83-473268 on October 27, 1983, shall be deemed to have been assigned to and assumed by CITY or canceled. IN WITNESS WHEREOF, the parties hereto have executed and delivered this DEDICATION AGREEMENT to be effective as provided in paragraph 6(k) above. Dated_ ATTEST: CITY OF COSTA MESA, A Municipal Corporation Mayor APPROVED AS TO FORM: Deputy City Clerk City Attorney 5/ Sakioka CM Deg. Agreement Final Draft 1 1/10/99 Dated: SAKIOKA FARMS, a California general partnership MARJACK, LLC, a California limited liability company By: MARY K. SAKIOKA, Manager By: ROY T. SAKIOKA, Manager By: PHYLLIS T. S.'KIOKA, Manager JKS-SF, LLC, a California limited liability company By: GEORGE M.K. SAKIOKA, Manager THE ARTHUR MASAKI SAKIOKA FAMILY TRUST By: ARTHUR MASAKI SAKIOKA, Co - Trustee of The Arthur Masaki Sakioka Family Trust UIDIT dated November 25, 1986, as amended By: MARILYN SAK10KA, Co -Trustee of The Arthur Masaki Sakioka Family Trust U/D/T dated November 25, 1986, as amended 5akioka CM Dev. Agreement Final Draft 1 111 W99 Dated: ROY K. SAKIOKA & SONS, a California general partnership THE ROY K. SAKIOKA TRUST JOHNNY KATSL71 SAKIOKA, Co - Trustee of The Roy K. Sakioka Trust U/D/T dated July 13, 1982, as amended, general partner By: ARTHUR MASAKI SAKIOKA, Co - Trustee of The Roy K. Sakioka Trust UIDIT dated July 13, 1982, as amended, genera! partner Un MARY KIYOKO SAKIOKA, Co - Trustee of The Roy K. Sakioka Trust U/D/T dated July 13, 1982, as amended, general partner Sakioka CM Deg. Agreemen[ Final DTaft I i/ID199 THE TOMIO SAKIOKA TRUST By: JOHNNY KATSUI SAKIOKA, Co - Trustee of The Tomio Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner By: ARTHUR MASAKI SAKIOKA, Co - Trustee of The Tornio Sakioka Trust UIDIT dated July 13, 1982, as amended, general }warmer By: MARY KIYOKO SAKIOKA, Co - Trustee of The Tornio Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner THE ARTHUR MASAKI SAKIOKA FAMILY TRUST ARTHUR MASAKI SAKIOKA, Co - Trustee of The Arthur Masaki Sakzoka Family Trust UIDIT dated November 25, 1986, as amended, general partner MARILYN SAKIOKA, Co -Trustee of The Arthur Masaki Sakioka Family Trust UIDIT dated November 25, 1986, as amended, general partner Sakiaka C.t rev. Agreement Final haft i i110/99 Exhilbit "I" to Dedication Ag ireement Legal description and depiction of the QUITCLAIM AREA 411 Sakioka CM flee. Agreement Final Draft I I/IO19i Exhibit "Z" to Dedication Agreement Legal description and depiction of the EASEMENT AREAS �Iz Sakivka CM Deg Agreement Final Draft I 1 /10,'99 Exhibit "3" to Dedication Agreement Order No. Escrow No. Loan No. WHEN RECORDED MAIL TO: CITY OF COSTA MESA ATTN: CITY CLERK 77 Fair Drive P.O. Sox 1200 Costa Mesa, CA 92628-1200 SPACE ABOVE THIS LINE FOR RECORDER'S USE DOCUMENTARY TRANSFER TAX IS S - 0 - * Parcel No. Computed on the consideration or value of property conveyed; OR Computed on the consideration or value less liens or encumbrances rcmaining at time of sale. _ Exempt pursuant to Rev. & Tax. Code Section 1 1922 Signature of Declarant or Agent determining tax -- Firm Name QUITCLAIM DEED Exempt from recording fee pursuant to Government Code Section 6103 FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, SAKIOKA FARMS, a California general partnership, and ROY K. SAKIOKA AND SONS, a Califomia general partnership do(es) hereby remise, REMISE, RELEASE AND FOREVER QUITCLAIM to the CITY OF COSTA MESA All right, title and interest, including access and abutter's rights, in the real property in the City of Costa Mesa County of Orange, State of California shown on Exhibit A attached hereto and incorporated herein by this reference. Dated: SAK10 A FARMS, a Califomia general partnership MARJACK, LLC, a California limited liability company 0 MARY K. SAKIOKA, Manager ROY T. SAKIOKA, Manager 0 Sakioka CM ❑ev- Agreement Final Draft I i 110/99 C PHYLLIS T. SAKIOKA, Manager JKS-SF, LLC, a California limited liability company GEORGE M.K. SAKIOKA, Manager THE ARTHUR MASAKI SAKIOKA FAMILY TRUST �4 ARTHUR MASAKI SAKIOKA, Co - Trustee of The Arthur Masaki Sakioka Family Trust UDIT dated November 25, 1986, as amended MARILYN SAKIOKA, Co -Trustee of The Arthur Masaki Sakioka Family Trust UIDIT dated November 25, 1986, as amended Sakioka CM Deg. Agreement Final Draft 1 I i 10/99 Dated: ROY K. SAKIQKA & SONS, a California general partnership THE ROY K. SAKJ0KA TRUST By: JOHNNY KATSUI SAKIOKA, Co - Trustee of The Roy K. Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner 0 ARTHUR MASAKI SAKIDKA, Co - Trustee of The Ray K. Sakioka Trust U/DIT dated July 13, 1982, as amended, general partner MARY KIYoxo SAKIOKA, Co - Trustee of The Roy K. Sakioka. Trust UIDIT dated July 13, 1982, as amended, general partner 05 Sakioka CM Qev. Agi-eemenI Final gait I i/10199 '.HAIL TAX STATEMENTS TO: CITY OF COSTA MESA, AtMi City Clerk 77 Fair Drive, P.O. Box 1200, Cosa Mesa, CA 92628-1200 THE TQMIO 5AV.IUKA TRUST JOHNNY KATSUI SAKIOKA, Co - Trustee of The Tornio Sakioka Trust UIDIT dated duly 13, 1982, as amended, general partner ARTHUR MASAKI SAKIOKA, Co - Trustee of The Tomio Sakioka Trust UID1T dated duly 13, 1982, as amended, general partner MARY KIYDKQ SAKIQKA, Co - Trustee of The Tornio Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner THE ARTHUR MASAKI SAKIOKA FAMILY TRUST ARTHUR MASAKI SAKIOKA, Co - Trustee of The Arthur Masaki Sakioka Family Trust UID1T dated November 25, 1986, as amended, general partner MARILYN SAKIOKA, Co -Trustee of The Arthur Masaki Sakioka Family Trust UIDIT dated November 25, 1986, as amended, general partner 6(� Sakioka CM Dev. Agreement Final Draft 1 1.' I0i99 STATE OF CALIFORNIA } ss. COUNTY OF On , before me, , personally appeared personally known to me (or 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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA } 5s. COUNTY OF } On , before me, , personally appeared personally known to me (or 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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] LC99107A.DOC•138+ Sakioka CM bev. Agreement Fina! Draft i I I10/99 STATE OF CALIFORNIA } y ss. COUNTY OF y On , before me, , personally appeared personally known to me (or 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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) } ss. COUNTY OF ) On , before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hisfherltheir authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument_ Witness my hand and official seal. [SEAL] Notary Public 10 Sakioka CM Dev- Agreement Final draft 1 I/IM9 STATE OF CALMORNIA } } ss. COUNTY OF On , before me, , personalty appeared personally known to me (or 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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA } } ss. COUNTY OF ) On , before me, , personally appeared personally known to me (or 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 helshelthey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] Notary Public �f 5akicka CM Dev. Agreement Final Draft ] 111 MA STATE OF CALIFORNIA } } ss. COUNTY OF } On , before me, , personally appeared personally known to me (or 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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA } } ss. COUNTY OF ] On , before me, , personally appeared personally known to me (or 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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] Notary Public 70 Saki❑ka C ;M Ukv. Agreement Final L]raft l I/ 10/99 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Deed or Grant dated from SAKIOKA FARMS, a California general partnership, and ROY K. SAKIOKA AND SONS, a California general partnership is hereby accepted by the City Cleric of the City of Costa Mesa, on behalf of the City Council of said City, pursuant to authority conferred by Resolution No. of the City Council of the City of Costa Mesa, adopted on the , day of , 19_ and the grantee consents to recordation thereof by its duly authorized officer, namely, the: City Clerk of the City of Costa Mesa. Dated: , 1999 City Clerk of the City of Costa Mesa 7I [.C99107A.DOC138+ 1085 (1194) 5akioka CM Derv. Agreement Final Draft 1 1/10/99 Exhibit A to Quitclairii Deed [Attach legal description of the Quitclaim Area] 7z Sakioka CM Dev. Agreement Final Draft l 1110/99 Exhibit "4" to Dedication Agreement RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Costa Mesa Attn: City Clerk 77 Fair Drive P.O. Box 1200 Costa Mesa, CA 92628-1 200 (Space Alcove This Line For Recorder's Use) The undersigned declares that this document is recorded at the request of and for the benefit of the City of Costa Mesa and is therefore exempt from the payment of the recording fee pursuant to Government Code Section 6103 and from the payment of the documentary transfer tax pursuant to Revenue and Taxation. Code Section 11922. Location: Avenue of the Arts City of Costa Mesa EASEMENT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, SAKIOKA FARMS, a California general partnership, and ROY K. SAKIOKA AND SONS, a California general partnership (collectively "Grantors"), hereby grant and convey to the City of Costa Mesa, a municipal corporation ("Grantee"), a perpetual easement and right-of-way, in gross, for public street purposes, including maintenance and repair thereof and including all access and abutter's rights for the easement area, in, on, under, across and through all of that real property situated in the City of Costa Mesa, County of Orange, State of California, more particularly described as shown on Exhibit A attached hereto and made a part hereof (the "Easement Area"). RESERVING UNTO GRANTOR, its successors and assigns, together with the right to grant and transfer the same, all other rights with respect to the Easement Area which do not interfere with the reasonable use of the Easement Area by Grantee for the easement purposes. Grantee agrees, at its sole cost and expense, to maintain in goad and safe condition and repair the Easement Area and all improvements thereon. Acceptance by Grantee of this Easement Deed shall constitute Grantee's approval of and agreement to be bound by all of the terms, conditions, restrictions, exclusions and reservations included in this instrument. 7-5 5akioka Chi Dev. Agmement Final prate 1111 0199 IN WITNESS WHEREOF, Grantor has executed this Easement Deed as of this day of , 1999. SAK10KA FARMS, a California general partnership MARiACK, LLC, a California limited liability company LIM go MARY K. SAKIOKA, Manager ROY T. SAKIOKA, Manager PHYLLIS T. SAKIOKA, Manager JKS-SF, LLC, a California limited liability company GEORGE M.K. SAKIOKA, Manager THE ARTHUR MASAKI SAKIOKA FAMILY TRUST wu ARTHUR MASA.KI SAKIOKA, Co - Trustee of The Arthur Masaki Sakioka Family Trust UIDIT dated November 25, 1986, as amended MARILYN SAKIOKA, Co -Trustee of The Arthur Masaki Sakioka Family Trust UIDIT dated November 25, 1986, as amended SaklokaCM Dev. Agreement Final Draft 11/10/914 ROY K. SAKIOKA & SONS, a California general partnership THE ROY K. SAKIOKA TRUST By: JOHNNY KATSLTI SAKIOKA, Co - Trustee of The Roy K. Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner 0 75 ARTHL]R MASAKI SAKIOKA' Co - Trustee of The Roy K. Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner MARY KIYOKO SAKIOKA, Co - Trustee of The Roy K. Salcioka Trust U/D/T dated July 13, 1982, as amended, general partner Sakioka CM Deg. Agreement Fin ai Draft ! I/1()199 MAIL TAX STATEMENTS TO: CITY OF COSTA MESA, Attn: City Clerk 77 Fair Drive, P-Q. Box 1200. Costa Mesa, CA 92628-1200 THE TOMIQ SAKIOKA TRUST M JOHNNY KATSUI SAKIOKA, Co - Trustee of The Tomio Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner ARTHUR MASAKI SAKIOKA, Co - Trustee of The Tomio Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner MARY KIYOKO SAKIOKA, Co - Trustee of The Tomio Sakioka Trust UIDIT dated July 13, 1982, as amended, general partner THE ARTHUR MASAKI SAKIOKA FAMILY TRUST ARTHUR MASAKI SAKIOKA, Co - Trustee of The Arthur Masaki Sakioka Family Trust UIDIT dated November 25, 1986, as amended, general partner MARILYN SAK10KA, Co -Trustee of The Arthur Masaki Sakioka Family Trust UIDIT dated November 25, 1986, as amended, general partner �z Sakioka CM Dev. Agreement Final Draft I I!I W99 STATE OF CALIFORNIA } ss. COUNTY OF } On , before me, , personally appeared personally known to me (or 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 hiAerltheir authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA } } ss. COUNTY OF } On , before me, , personally appeared personally known to me (or 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 hislher/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] LC99107A.DOC138+ Notary Public 77 Sakioka CM Deg. Agreement Final Draft 111 [0/99 I.JU N F OR M ED"-C ,oPY Not Compared with Original, Recorded in Official Records, County of Orange Tom Daly, Clerk-Recorder RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF COSTA MESA 77 Fair Drive Costa Mesa, CA 92626 Attn: City Clerk 111I111111111II111I111111111II111Imllllllllllllllllllllllllll~1 NO FE E 200400027518610:54am 04/02/04102 122 A38 A30 20 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 (Space above this line for Recorder's use only). ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT FOR SAKIOKA FARMS DEVELOPMENT PROPERTY This ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT FOR \' ~AKIOKA FARMS DEVELOPMENT PROPERTY (this "Assignment") is dated as of the ...ll th <jaYof Pebrnary ,2004,by and between ISCINA-SUNFLOWER, LLC, a California limited liability company ("Iscma"), RTS-SUNFLOWER, LLC, a California limited iiability company ("RTS"), MARJACK LLC, a California limited liability company ("Marjack"). SAKIOKA FARMS, a California general partnership ("Sakioka Farms"; Iscilla, RTS, Marjack, ahd Sakioka Farms are collectively referred to herein as the "Sunflower Partners/'), ROY K SAKIOKA &SONS, a California general partnership ("RKSS Lot 2"), and the CITY OF 90STA MESA,' a general law city ("City").RKSS Lot 2, Snnflower Partners and the City are individually referred to herein as a "Party" and collectively referred to as the "Parties." RECITALS A. Sakioka Farms and RKSS Lot 2, and the City entered into that certain Dfvelopment Agreement for Sakioka Farms Development Property dated November 15, 1999 and recorded on February 3,2000 as Instrument No.2000-0060847 ("Development A,greement"), which contains certain rights, duties and obligations relating to the development of . that certain property located in the City of Costa Mesa, County of Orange, California, cdllectively consisting of approximately 7334 acres, which is more particularly described on Exlnbit A attached hereto and incorporated herein by this reference ("Sakioka Property"). Tem nolt defined herein shall have the definitions set forth in the Development Agreement. B.At the time- the Development Agreement was executed, the Sakioka Property was under the COmmDnownership of Sakioka Farms and RKSS Lot 2. C.RKSS Lot 2 is the current owner of that certain real property within the Sakioka Property described as Lot 2 in the Development Agreement and shovm on Exhibit B attached herbto and incorporated herein by this reference (the "RKSS Lot 2 Property"),(n)Marjack, Isci,na, and RTS are the current owners of all that certain real property within ~tbeSakioka Pro1pertyshovvn on Exhibit C attached hereto and incorporated herein by this reference (the "SJntIower Residential Property"), and (iii) Sakioka Farms and Marjack, are the current owners Itp of all that certain real property within the Sakioka Property described on Exhibit D attached hereto and incorporated herein by this reference (the "Pork Chop Property"; the Sunflower Residential Property and Pork Chop Property are collectively referred to herein as the "Sunflower Partners Property"). D. Section 3.9 of the Development Agreement provides that the rigb1s and obligations of the Development Agreement may be transferred and assigned upon the transfer of any portion ofthe Sakioka Property, and the RKSS Lot 2 and Sunflower Partners have agreed that each s~ assign to the other certain rights and interests and delegate certain obligations of Developer under the Development Agreement. as they apply to the RIeSS Lot 2 Property and the Sunflower P~ers Properly. E. The purpose oftffis Assignment is to set forth the terms and provisions agreed upon between RKSS Lot 2 and Sunflower Partners with respect to the assignment of certain rights and interests and the delegation of certain obligations of each ofRKSS Lot 2 and Sunflower Partners under the Development Agreement, so as to have the practical effect of creating two separate and distinct agreements between the City and the respective owners of the RKSS Lot 2 Property and the Sunflpwer Partners Property., NOW. THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Partial Assignment. Pursuant to Section 3.9 of the Development Agreement, and subject to Section 3 below. the Parties hereby agree as follows: 1.1 Snnflower Partners hereby assigns, conveys and transfers to RKSS Lot 2 all of Sunflower Partners' rights and interests under the Development Agreement to the extent such rights and interests relate to. benefit. or are reasonably neces~ for the ownership, development or use o~ the RIeSS Lot 2 Property. including. but not limited to. all vested ~Dtitlement and development rights pursuant to the Existing Development Approvals andIxisting Land Use Regulations applicable to the RKSS Lot 2 Property; and 1.2 RKSS Lot 2 hereby assigns, conveys and transfers to Sunflower Partners all ofRKSS Lot 2's rights and interests under the Development Agreement to the extent such tights and interests relate to, benefit, or are reasonably necessary for the ownership. development br use o~ the Sunflower Partners Property, including, but not limited to all vested entitlement and development rights pnrsuant to the Existing Development Approvals and Existing Land Use, Regulations applicable to the Sunflower Partners Property. I 2. Delegation and Assump~ion ofObligatioDS. Subject to Sections 3 and 4 below, the Parties hereby agree as follows: 2.1 RKSS Lot 2 hereby delegates to Snnflower Partners and Sunflower ~artners hereby assumes those obligations ofRKSS Lot 2 under the Development Agreement which relate specifically to the Sunflower Partners Property ("Sunflower Partners Obligations"), Assignment and Assumption Page 11 : including without limitation, those obligations relating to onsite development and the payment of fees with respect to the Sunflower Partners Property; and 2.2 Sunflower Partners hereby delegates to RKSS Lot 2 and RKSS Lot 2 hereby assumes those obligations ofSunfIower Partners under the Development Agreement that relate specifically to the RKSS Lot 2 Property ("RKSS Lot 2 Obligations"), including without limitation, those obligations relating to onsite development and the payment of fees with respect to the RKSS Lot 2 Property. 3. . Fee Credits. The Parties acknowledge and agree that pursuant to Section 2.2(v) of the Development Agreement, the Sakioka Property has been allocated an aggregate fee credit of $1,046,000.00 (the "Fire Safety Fee Credit") to be applied by the City against any future fire safety impact fee or other public safety or similar fee proposed to be imposed on the Sakioka, Property. The Parties hereby irrevocably allocate and assign the Fee Credit as follows: 54.18%, or $566,723.00, to the Sunflower Partners Property, and 45.82%, or $479,277.00, to the RKSS, Lot 2 Property. j \,4. Urban Rail Station Easements. The Parties acknowledge and agree that pursuant o Section 2.1(v) of the Development Agreement, the City has certain rights to request the dedication of land for the purpose of locating a future urban rail transit station on the Sakioka Property. Such dedication can only be required upon the satisfaction of conditions (a)-(f) of Section 2. 1(v) and the final approval by the City of Future Development Approvals with respect ~ at least 25% ofthe cumulative aggregate amount of Development permitted under the Existing 1-pprovals for the entire Sakioka Property, and the expiration of my applicable statute of lpnitations. The Parties intend for the City to have the same rights to require the station dedication. notwithstanding the separation of ownership of the Sakioka Property. Consequently, to the extent the City issues final discretionary approval of Future Development Approvals with respect to at least 25% of the cumulative aggregate amount of Development permitted under the Existing Approvals (on either or both of the RKSS Lot 2 Property and the Sunflower Partners ~roperty), the applicable statute oflimitations bas expired, and conditions (a)-(I) of Section ..,.l(v) have been satisfied, (and without altering whatever rights or obligations Sunflower ~artners may have as the Developer of the Sunflower Partners Property), RKSS Lot 2 agrees to perform the obligations of Developer specified in Section 2.I(v), to the extent the obligations apply to the RKSS Lot 2 Property. To the extent the City issues fiuaI discretionary approval of Future Development Approvals with respect to at least 25% of the cumnlative aggregate amount of Development permitted under the Existing Approvals (on either or both of the RKSS Lot 2 Property and the Sunflower Partners Property), the applicable statute of limitations has expired, ,J,d conditions (a)-(I) ofSectiou 2.I(v) have been satisfied, (and without altering whatever rights01obligations RKSS Lot 2 may have as the Developer of the RKSS Lot 2 Property), Sunflower Partners agrees to perform the obligations of Developer specified in Section 2. 1(v), to the extent tHeobligations apply to the Sunflower Partners Property. The purpose of this Section 4 is to apportion responsibility for compliance with Section 2. I(v) of the Development Agreement arbong the separated properties, so that either the station easement will ultimately be located on the RKSS Lot 2 Property as currently contemplated in the Development Agteement, or the stftion easement will be located on the Sunflower Partners Property with the mutual consent of srower Partners aud the City. Nothing in this Section 4 is inteuded to modifY in any way the Assignment and Assumption Page l£b • rights and obligations of Developer with respect to the urban rail easements as specified in the Development Agreement. 5. Urban Rail Track Reservation. The Parties acknowledge and agree that pursuant to Section 2.I(vi) of the Development Agreement, the Developer has agreed to design any Project so as to reserve space for an urban rail track line if so requested by the City. Such reservation can only be required by the City upon the satisfaction of conditions (a) - (e) of Section 2. 1(vi). The Parties intend for the City to have the same rights to require the rail track reservation, notwithstanding the separation of ownership of the Sakioka Property_ Consequently, RKSS Lot 2-agrees to perform the obligations of Developer specified in Section 2.1(vi), to the extent the obligations apply to RKSS Lot 2 Property. Sunflower Partners agrees to perform the obligations of Developer specified in Section 2_1(vi), to the extent the obligations apply to the Sunflower Partners Property. The purpose of this Section 5 is to apportion responsibility for compliance with Section 2_1(vi) of the Development Agreement among the separated properties. Nothing in this Section 5is intended to modify in any way the rights and obligations of Developer with respect to the urban rail track reservation as specified in the Development Agreement. 6. No Cross-Defaults. The Parties agree that in accordance with Section 3.4.3 of the Development Agreement: (i) any default by RKSS. or its successors and assigns, with respect to the RKSS Lot 2 Obligations shall not be considered a defuult by Sunflower Partners as to the Sunflower Partners Property and shall not impact Sunflower Partners' development rights with respect to the Sunflower Partners Property uq.der the Development Agreement, and (ii)any default by Sunflower Partners, or its successors and assigns, with respect to the Sunflower Partners Obligations shall not be considered a default by RKSS Lot 2 as to the RKSS Lot 2 Property and shall not impact RKSS Lot 2's development rights with respect to the ~S Lot 2 Property under the Development Agreement. 7. Estoppel. In accordance with Section 3.13 of the Development Agreement, the Parties each certify that, to the best knowledge of the certifYing party as of the date hereof, Ci)the Development Agreement is in.full force and effect and a binding obligation of the parties thereto; (ii) the Development Agreement has not been:amended or modified or clarified. except as set forth on Exhibit E attached hereto; and (Ui) the Parties to the Development Agreement are not in defuult of their respective obligations under the Development Agreement. 8. Amendment to Development Agreement. RKSS Lot 2 and Sunflower Partners wee that any amendment to the Development Agreement requiring the approval of the,."Developer" that (i) pertaIns solely to development of the Sllllflower Partners Property!i!1d ~ii)does not modify or reduce the intensity or permissible uses of the RKSS Lot 2 Property, shall only require the approval in writing of Sunflower Partners, and that any amendment to the J,Jevelopment Agreement requiring the approval of the "Developer" that Ca)pertains solely to development of the RKSS Lot 2 Property and (b) does not modify or reduce the intensity or Piermissible uses of the Sunflower Partners Property. shall only require the approval in writing of RKSS Lot 2. Hereafter, RKSS Lot 2 shall have no rights as they relate to ID?dification of the Development Agreement solely with respect to the Sunflower Partners PropertY and Sunflower Partners shall have no rights as they relate to the modification of the Development Agreement sOlely with respect to the RKSS Lot 2 Property. Any modification oJ; or amendment to, the I Assignment and Asstunption Page jq :,\ Development Agreement requiring theapproval of "Developer" thatcovers both the RKSS Lot 2 Property and the Sunflower Partners Property shall require the approval of both RKSS Lot 2 and Sunflower Partners. I 9. Notices. Pursuant to Section 3.6 of the Development Agreement, any notice or communication req~ed to be given to "Developer" under the Development Agreement that relates to the RKSS Lot 2 Property sball be given at the addresses set forth below: ToRKSS Lot 2 Roy K. Sakioka &Sons 14850 Sunflower Avenue Santa Ana, California 92707 Attn: George Sa.lrioka Gibson, Dunn &Crutcher LLP 333 South Grand Avenue Los Angeles, California 90071 Attn: Amy R. Forbes, Esq. with a copy to: .\' Pursuantto Section 3.6 of the Development Agreement, any notice or communication tequired to be given to "Developer" underthe Development Agreement that relates to the funflower PartnersProperty shall be given at the address set forth below: To Sunflower Partners Sunflower Partners 3183-A Airway Avenue. Suite 2 Costa Mesa, California 92626 Attn: Jeffrey Littell with a copy to:PaJmier~ Tyler, Wiener, Wilhelm &Waldron LLP 2603 Main Street East Tower - Suite 1300 Irvine, California 92614-6228 Attn: Cynthia M Wolcott, Esq. 10. Miscellaneous. I 10.1 interpretation: Governing Law. This Assignment shall be construed according to its fair meaning and as if prepared by all parties hereto. This Assignment shall be cbDStruedin accordance with and governed by the laws of the State ofCalifomia.My action hereunder shall be brought in a court of competent jurisdiction located in Orange County. California. 10.2 Attorneys' and OtherFees. In the event of any dispute between the parties hereto or initiation of any action or proceeding to interpret or enforce the provisions of this Assignment. the prevailing party shall be entitled to recover its reasonable expenses, attorneys' fees and costs, including professional or expert consultation or testimony fees, both at trial and01any appeal and in any administrative proceeding. Assignment and Assumption Page -;)JJ 10.3 Authority. Each of the Parties hereto represents and warrants to the others that the person or persons executing this Assignment on behalf of such Party is or are authorized to execute and deliver this Assignment and that this Assignment shall be binding upon such Party. I lOA Further Assurances. RIeSS Lot 2 and Sunflower Partners each agree to do stIch further acts and things and to execute and deliver such additional agreements and instruments as the other may reasonably request to consummate, evidence, confirm or more fully implement ~e agreements of the Parties as contained herein. 10.5 Execution in Counterparts. This Assignment maybe executed in several counterparts, and al{so executed shall constitute one agreement b.etween the parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. I 10.6 No Modification. Except as specifically modified or clarified by this Assignment, the Development Agreement shall continue in full force and effect in accordancefwrrhIts terms, without any waiver. amendment or other modification of any provision thereof "[signature pages follow] Assignment and Assumption Page .:;1..( ,<:) 10.3 Authority. Each of the Parties hereto represents and warrants to the others thatthe person or persons executing this Assignment on behalf of such Party is or are authorized to execute anddeliver this Assignment and that this Assignment shall be binding upon such Parly. lOA Further Assurances. RKSS Lot 2 and Sunflower Partners each agree to do such further actsand things and to execute and deliyer such additional agreements and I instruments asthe other may reasona~ly request ~oco~te. evidence, confirm or more fully implement the agreements of the PartIes as contamed herem. 10.5 Execution in Counterparts. This Assignment maybe executed in several counterparts, and all"so executed shall constitute one agreement ~tween the parties hereto, notvvithstandingthat all parties are not signatories to the original or the same counterpart. 10.6 No Modification. Except as specifically motlified or clarified by this Assignment. theDevelopment Agreement shall continue in full force andeffect in accordance vvithas terms, without any waiver, amendment or other modification of any provision thereof [signature pages follow] Assignment and Assumption Page J-({,1.1 IN WITNESS WHEREOF, the parties have executed tills Assigrunent to be effective as of the date first written above. CITY OF COSTA MESA By: Attest: ,2 D uty City Clerk and ex-officio Clerk of the City of Costa Mesa Approved as to Form: ---C-it-y~9~tt~~ "RKSS LOT 2" ROY K SAKIOKA &SONS, a California general partnership By: JKS-RKS, LLC a California limited liability company, General Partner By~>dge M.K oka, Manager By: AMS CRAIG, LLC a Delaware limited liability cornpny.General Partner By:w;d/g_~ Atthur M. Sakioka, Manager Assignment and Assumption Page f},d.- "SUNFLOWER PARTNERS" MARJACK,LLC,a California limited liability company SAKlOKA FARMS, a California general partnership B~Rt,l~Manager ~ PHYLROY, LLC .General Partner ByWJpT gj2,~ . Pb ·s T. Sakioka, ManagerBy;q~ Mana er PHYLRO r LLC • General Partner By: I I I I \, ISCINA-SUNFLOWER, LLC, a Califurnia limited liability company BAd!T~ '~T. Sakioka, Member RTS-SUNFLOWER, LLC, a California limited liability company~~~----=~BY~--:;::=- Roy T. SakiWa, Member Assignment and Assumption Page·~3 CALIFORNIA ALL·PURPOSE ACKNOWLEDGMENT State of Califomia } County of ~V ss. onCUliMAA\l\f 1.']:'J,before me,1 ~--1(l~,-- personally appeared ¥Jh..r I·:1AU1'D~~~~ ~ _-9 ~ame'"l"fSillnar<S) personally known to me proved to me on the basis of satisfactory evidence STEPHANIE JOYCEaCommission#1280'329 z'i'Notary PubUc - California ~1 Orange County ~My CQn"lm.. Expires Cd 1-4,2OQ4......."'..... Place Nolary Seal Abo." 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 hisfher/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s}, or the entity upon behalFof which the person(s) acted, executed the instrument. .,, Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Trtle or Type of Document:_ Document Date:Number of Pages:~. Srgner(s) Other Than Named Above:_ Capacity(ies) Claimed by Signer Signer's Name:~_ o IndividualoCorporate Officer - TrUe(s):o Partner -0 Limited 0 GeneraloAttorney in FactoTrusteeoGuardian or Conservatoroother;~_ Signer Is Representing:_ Top of ltuN3 he<e 'J,, CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ~<§'~~..fu""~~~~-w&i'"~-..9<'~-_ V Nam"ls) 01 Signer(s) ~personally known to meoproved to me on the basis of satisfactory evidence , J '" '"m •••••••••••• '" '" m '" m "F STEPHANIE JOYCE@Commission#' 1280329 . ~ ~Notary Public - California ~,- ~Orange County f•.• "".My,;o:m:..~re:.a: 1-:~ to be the person[s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in., his/herltheir authorized capacity(ies),antl i 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' OPTIONAL ----------- Though the infonnation below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of /his form to another document Description of Attached Document Title or Type of Document:_ Document Date:Number of Pages:_ Signer{s) Other Than Named Above:_ Capacity(ies) Claimed by Signer Signer's Name:_ o IndividualoCorporate Officer - TItle(s):o Partner - 0 limited 0 GeneraloAttomey in FactoTrusteeoGuardian or ConservatoroOther:_ Signer Is Representing:_ Top at thumb here "'.b '999Na'""" Nolo.ryAsoocia_'93500••8<l'OA•••.•P.o.80. 2<ll2'cna~. CA.9'J1J.24ll2 •- .•••_ry.0'V J lTATE OF CALIFORNIA ) COUNTY OF ~f;LiJ~ss. /1 oJwt&UrLbefr)~me~4ZV , personallyappeared ~'A~L#--J personally known to me (or proved to we Olithe basis afsatisfuctQry e-MeaGG) to be the person(::I)whose name(~ iSJere-subscn"bed to the within instrument and acknowledged to roe that helshefthey executed the bme in hisilrer/tfieiF- authorized capacity(~),and that by hislherftherr signatures(-s) on the ihstrument the person(,.) or the entity upon behalf of which the person{1!)acted, executed the instrument. Witness my hand and official seal. 1• •n '*-'>7~:I~";;::;~~A't •r {/J {';1J '/ ~ ~~Commissionl13QooJ4 [~_~tJ-..J _ I ~.Notary Public - Carrfomia ~Notary PublicJVenturacou~ty • MYComm.Expir:'.:.~r8,2005[IE &e··.,_.-,-.~ slATE OF CALIFORNIA ) /1-)ss. COUNTYOF~.u ) ~: ·2 ,beforem(;~, =-, personally appeared personally mown to me () to be the person(f)whose name(&) isIa<e"SUbscnbedto thewithinInstrumentand acknowledgedto me that helshe/theyexecutedthe same in mslherflheirauthorized capacity(;",,),and that by _er/their signatures(.) on the ~ent the person(~)or the entity upon behalf of which the person(.g) acted. executed the JD.Strument. Witnessmybandandofficialseal. ~.Notary Public - Califomia ~.- ' Ventura County f[i MyComm.ExpiresApr8,20051~.-.-"'-a..."4"<CJ c ·s ""Qi • ~-Notary Public -.:,\ STATE OF CALIFORNIA ) ) 55. COUNTY OF ) On feg~l)$)""1.e 0'-1,before me, J1/tI../t )6 LLEtJ{ PdTPt.t..~,personally appeared GcOfU;f.,.IC.SAJ<JDk'A-personally Imown to me (or 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 hiSther/their authorized capacity(ies), and that by hislher/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seaL ISTATE OF CALIFORNIA COUNTY OF ) ) 55. ) I On , before me,, personally appeared personally known to~-------~-------------------be (or 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 hislherltheir signatures(s) on the tnstrurnent the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] EXHIBIT A LEGAL DESCRIPTION OF SAKIOKA PROPERTY LOT B AND THAT PORTION OF LOT 1 OF TRACT NO. 10950, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 515, PAGES 1 TO 8 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: PARCEL 2 OF LOT LINE ADWSTMENT NO. LL-90-11 RECORDED APRIL 16, 1991 AS INSTRUMENT NO. 91-178038 OF OFFICIAL RECORDS. LOT 2 OF TRACT NO. 10950, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 515, PAGES I TO 8 mCLUSrvE OF MISCELLANEOUS MAPS, AS AMENDED BY A ,cERTIFICATE OF CORRECTION RECORDED APRIL 23, 1986 AS INSTRUMENT NO. 86- f60488 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA I.EXCEPT THEREFROM THAT PORTION OF SAID LAND AS GRANTED TO THE CITY OF COSTA MESA, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA BY GRANT DEED DATED OCTOBER 10, 1994 AND RECORDED OCTOBER 11, 1994 AS INSTRUMENT NO. 94-604167 OF OFFICIAL RECORDS. Exhibit A .;z'g EXHIBITB LEGAL DESCRll'TION OF RKSS LOT 2 PROPERTY THAt' CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF COSTA MESA, COUNTY OF ORA_N"GE,STATE OF CALrFORNlA, BEING TIIAT PORTION OF LOT 2, TRACT NO. 10950 AS SHOWN ON A MAP THEREOF FINED IN BOOK 515, PAGES 1 THROUGH g INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING SOUTHWESTERLY OF THE FOLLOWING DESCRIDED LINE: COMMENCING AT THE NORTHWESTERLY OF THAT CERTAIN COURSE SHOWN ON SAID MAP AS "NORTH 25°19'40"WEST 75222 FEET" ALONG THE SOUTHWESTERLY LINE OF SAID LOT 2, SAID TERMINUS BEING ON A NON- TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 290.468 METERS, A RADIAL LINE OF SAID CURVE TO SAID TERMINUS BEARS SOUTH 38°03'27" EAST; THENCE SOIJTIIWESTERL Y ALONG SAID CURVE AND THE NORTHWESTERLY LINE OF LOT 3 OF SAID TRACT 20.460 METERS THRbUGH A CENTRAL ANGLE OF 4°02'09" TO THE TRUE POINT OF BEGINNING; THENCE NON- ITANGENT FROM SAID CURVE SOUTH 35°35'40" EAST, 104.306 METERS TO SAID ,SOUTHWESTERLY LINE OF LOT 2; THENCE CONTINUING SOUTH 35°35'40" EAST, 72.408 METERS TO THE BEGINNING OF ACURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 51.400 METERS; THENCE SOUTHERLY ALONG SAID CURVE 50.048 METERS THROUGH A CENTRAL ANGLE OF 55°47'21" TO SAID SOUTHWESTERLY LINE OF LOT 2. I LOT 2 OF TRACT NO 10950, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALrFORNlA, AS PER MAP RECORDED IN BOOK 515, PAGES 1 TO 8 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, ~ALrFORNIA, AND AS CORRECTED BY THAT CERTAIN CERTIFICATE OF ~ORRECTION RECORDED APRIL 23,1986, AS INSTRUMENT NO. 86-160488, OFFICIAL RECORDS OF SAID ORANGE COUNTY, CALrFORNIA. EXCEPTING THEREFROM TIIAT PORTION DESCRIBED IN DEED TO THE CITY 9F COSTA MESA RECORDED OCTOBER 11, 1994, AS INSTRUMENT NO. 94-0604167rOFF1CIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION DESCRIDED IN DEED RECORDED APRIL 10,2000 AS INSTRUMENT NO. 20000182742 OF OmCIAL RECORDS. I ALSO EXCEPTING THEREFROM THAT PORTION DESCRrBED IN DEED TO THE CITY OF COSTA MESA RECORDED MAY 8, 2000, AS INSTRUMENT NO, 20000237233 AND MAY 8, 2000, AS INSTRUMENT NO. 20000237235, BOTH OF OFFICIAL RECORDS. Exhibit B) f},q 1.460 AC 0.249 AC 30.989 AC 0.102 AC 33.023 AC 0.223 AC DAIE: 10/17/02 SCALE:1"~300' IN: 449.0101 3 of 3 9,701 SF 63,580 SF 10,858 SF 1,349,919 SF 4,422 SF 1,438,480 SF A.P. #410-441-13 (PARCEL 101370-2) A.P. #410-441-15~I (PARCEL 101370-1)/' . .®-A.P. #410-441-16 .~ AP. 1410-441-17 MAIN ST.R/W lOT 2 - TR 10950 PARCEl 101370-2 QUITCLAIMOEED INST #20000237235 OR LAND AREA EXHIBIT PORIlONS OF TRACT NO. 10950 for ROY K. SAKIOKA &SONS SUNFLOWER AVENUE 151liVonlumu, SIo100 Iniu, Cililomil 9260e Phone (919)171-1969 FAI (919)171-5315 Land SUrve}'fJnI INFORMATIONPER AMERICAN -'L.COMPANY P8EUMINARYREPORT- 27•.A-27 04/05/02 2720055-27 07/24/02 PARCEl 101370-1 QUITClAIMOEED INST #20000237233 OR I I \,-// MAPPING/449/01/EXHIBITS/LOT2 .1FUSCOEENGINEERING CiffllRn,fueen EXHIBITB '"'2,'"\ -- EXHIBITC LEGAL DESCRJPTION OF SUNFLOWER RESIDENTIAL PROPERTY LOT 1 OF TRACT NO. 10950, IN 1HE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 515, PAGES 1 ~ o 8 INCLUSIVE OF MISCELLANEOUS MAPS, IN 1HE OFFICE OF THE COUNTY CORDER OF SAID COUNTY, AS CORRECTED BY THAT CERTAIN CERTIFICATE CORRECTION RECORDED APRIL 23,1986, AS INSTRUMENT NO. 86-160488 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: I THAT PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT NO. LL-90-1 1, IN (THECITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED APRIL 16, 1991, AS INSTRUMENT NO ..91-178038 OF OFFICIAL RECORDS LYlNG EASTERLY OF 1HE EASTERLY LINE OF THE LAND DESCRIBED IN DEED TO JACK TOSHIKI SAKIOKA k'ID JOHNNY KATSUI SAKIOKA RECORDED JULY 27, /956, IN BO?K 3592, PAGE 553 OF OFFICIAL RECORDS OF SAID COUNTY. Exhibit C- 3/1 --I - B ._--_..- INFORMr ',",j AMERICAN 11TlE COMPANY PREUMI~,"d REPORT -2720056-27 04/02/Q2 2720058-27 04/02/02 2720059-27 04/03/02 SUNFLOWER AVENUE I.MAPPING/449 /01 /EXHIBITS/LOTI ®-A.P. #410-512-02 ~ A.P. #410-512-0;;©-A.P. #410-512-05 PCL 2 -ill 90-11 INST #91-178038 OR 1,393,807 SF 29,999 SF 332,412 SF 1,756,218 SF 31.997 AC 0.689 AC 7.631 AC 40.317 AC FUSCOEENGINEERING ClvillEn{.illeBl'l' . 1m;fOlll1nntD.SIt 100 !nine, c.Jit,nia 92!96 /h,,, (941117H9!I III (949) m--5l15 Li.rld Surveyors LAND AREA EXHIBIT· PORTIONS OF TRACT NO. 10950 for ROY K. SAKIOKA &SONS EXHIBITC 'J,C). OAlE: 10/17/02 SCAlE:1"=300' IN: 449.0101 2 of 3 EXHIBITD LEGAL DESCRlPTION OF PORK CHOP PROPERTY THAT PORTION OF PARCEL TWO OF LOT LINE ADWSTMENT NO. LL-90-11, IN TIffi CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED APRIL 16, 1991 AS INSTRUMENT NO. 91-178038 OF OFFICIAL RECORDS LYING WESTERLY OF THE EASTERLY LINE OF THE LAND DESCRIBED IN DEED TO JACK TOSHIKl SAKIOKA AND JOHNNY KATSUI SAKIOKA RECORDED JULY 27, 1956 IN BOOK 3592 PAGE 553 OF OFFICIAL RECORDS OF SAID COUNTY. \',I Exhibit D2>3 INFORMA~O~'e,{AMERICANTITlE COMPANY PRELIMII,..J REPORT- 2720056-27 04/02/02 2720058-27 04/02/02 2720059-27 04/03/02 SUNFLOWER AVENUE --1- I I ®--A.P. 6410-512-02 . ~ A.P. 6410-512-03®-A.P. 1410-512-05 PCL 2 - LLA 90-11 INST 691-178038 OR 1,393,807 SF 29,999 SF 332,412 SF 1,756,218 SF 31.997 AC 0.689 AC 7.631 AD 40.317 AC DATE: 10/17/D2 SCALE:r .3DD' IN: 449.0101 ·2 of 3 LAND AREA EXHIBIT. PORTIONS OF TRACT NO. 10950 for ROY K. SAKIOKA &SONS EXHIBITD;z,iJ----,. 16m Yon[umu,SilIOO Irrine,Caliloruit P2500 Phon. (ill) 471-1ill rii (i!9) 171-1315 Land SUrvrJyorsCivil RMlllcU'BI I MAPPING/~49/01/EXHIBITS/Lon FUSCOE ENGINEERING ·' 30305099 _9.DOC EXHIBITE AMENDMENTS TO DEVELOPMENT AGREEMENT None. Exhibit E~35" ORDINANCE NO. 2021-xx AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, APPROVING AN AMENDMENT TO AND EXTENSION OF DEVELOPMENT AGREEMENT NO. 99-02 (DA-20-03) BETWEEN THE CITY OF COSTA MESA AND SAKIOKA FARMS AND ROY K. SAKIOKA & SONS WHEREAS, on November 15, 1999 the City of Costa Mesa, adopted Ordinance No. 99- 16, an Ordinance of the City Council of the City of Costa Mesa, California, Approving the Development Agreement Between the City of Costa Mesa and Sakioka Farms and Roy K. Sakioka & Sons, two California general partnerships (“Sakioka”); and WHEREAS, the City and Sakioka, as parties thereto, agree that the Effective Date of the Development Agreement was May 15, 2001, and that the twenty year term thereof expires on May 15, 2021; and WHEREAS, the parties to the Development Agreement desire to extend the term thereof for an additional ten years, commencing on May 15, 2021 and expiring on May 15, 2031, as set forth in the First Amendment to Development Agreement for Sakioka Farms Development Property (“First Amendment to Development Agreement”). NOW, THEREFORE, THE COSTA MESA CITY COUNCIL DOES HEREBY ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Costa Mesa, California, does hereby find and declare as follows: 1. A public hearing has been held before the City Council pursuant to the procedures described in Council Resolution No. 88-53. At the hearing, the City Council considered testimony presented by the public and the Planning Commission's recommendation regarding the proposed extension of and amendment to the Development Agreement between the City of Costa Mesa and Sakioka Farms and Roy K. Sakioka & Sons, two California general partnerships (“Sakioka”), set forth in the First Amendment to the Development Agreement. 2. The amendment to and extension of the Development Agreement between the City of Costa Mesa and Sakioka is consistent with the objectives, policies, general land uses and programs specified in the applicable General Plan. and with the General Plan as a whole and the North Costa Mesa Specific Plan; (b) Compatible with the uses authorized in, and the applicable land use regulations prescribed for, the zoning district in which the real property is and will be located; and (c) Is in conformity with and will promote public convenience, general welfare, and good land use practice. 3. The Development Agreement as amended between the City of Costa Mesa and Sakioka will not: (a) Be detrimental to the health, safety and general welfare; and (b) Adversely affect the orderly development of property or the preservation of property values. 4. The time extension for the existing Development Agreement will provide an opportunity for the development of the project and for the public benefits listed in the Development Agreement to be realized by the City. 5. The City finds that the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15061 (b) (3) (general rule) of the CEQA Guidelines because the amendment is merely a time extension for an existing development agreement and does not change the underlying project. In addition, the relevant environmental analysis contained in the approved 2015-2035 General Plan EIR (SCH No. 2015111053, June 2016) is still valid and applicable to the project such that no further environmental review is required. Section 2. The City Council hereby approves, adopts and enters into the First Amendment to the Development Agreement in the form attached hereto and incorporates it herein by this reference (Attachment A). Upon execution of the First Amendment to the Development Agreement by all parties, the City Clerk is directed to record the Development Agreement pursuant to City of Costa Mesa Development Agreement Procedures and Requirements. Section 3. Effective Date. This Ordinance shall take effect thirty (30) days after its final passage. Section 4. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted in the manner required by law. PASSED AND ADOPTED THIS ____ DAY OF _________, 2021 _________________________ Katrina Foley, Mayor City of Costa Mesa ATTEST: __________________________ Brenda Green, City Clerk City of Costa Mesa APPROVED AS TO FORM: ___________________________ Kimberly H. Barlow, City Attorney City of Costa Mesa STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF COSTA MESA ) I, BRENDA GREEN, City Clerk of the City Council of the City of Costa Mesa, hereby certify that the above and foregoing Ordinance No. 2021-xx was introduced and considered section by section at a regular meeting of said City Council held on the _____ day of ________, 2021 and thereafter passed and adopted as a whole at a regular meeting of said City Council held on the _____ day of ________, 2021 by the following roll call vote: AYES NOES ABSENT IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City of Costa Mesa this _____ day of _________, 2021. ______________________ Brenda Green, City Clerk City of Costa Mesa Draft 3/5/2021 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Costa Mesa 77 Fair Drive Costa Mesa, CA 92626 Attn: City Clerk Space Above This Line Reserved for Recorder’s Use Only FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR SAKIOKA FARMS DEVELOPMENT PROPERTY This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR SAKIOKA FARMS DEVELOPMENT PROPERTY (“Agreement”) is entered into as of [•], 2021, by and between the CITY OF COSTA MESA, a general law city (“City”), and ROY K. SAKIOKA & SONS, a California general partnership (“RKSS”). City and RKSS are collectively referred to herein as the “Parties” and individually as a “Party.” RECITALS A. City, RKSS, and Sakioka Farms, a California general partnership (“Sakioka”) entered into that certain Development Agreement for Sakioka Farms Development Property dated as of November 15, 1999 (the “Development Agreement”), recorded on February 3, 2000 as Instrument No. 20000060847 of the Official Public Records of Orange County, California (the “Official Records”) which contains certain rights, duties, and obligations relating to the development of that certain property located in the City of Costa Mesa, County of Orange, California. B. Pursuant to that certain Assignment and Assumption of Development Agreement for Sakioka Farms Development Property dated as of February 17, 2004 (the “DA Assignment”), recorded on April 2, 2004 as Instrument No. 2004000275186 of the Official Records, Sakioka, together with ISCINA-SUNFLOWER LLC, a California limited liability company, RTS- SUNFLOWER, LLC, a California limited liability company, and MARJACK LLC, a California limited liability company, as successors-in-interest to the Development Agreement, assigned to RKSS all of their rights and interests under the Development Agreement with respect to that certain real property described on Exhibit A attached hereto and incorporated herein by this reference (the “RKSS Lot 2 Property”), including, but not limited to, all vested entitlement and development rights applicable to the RKSS Lot 2 Property. C. Section 8 of the DA Assignment provides that any amendment to the Development Agreement requiring the approval of the “Developer” thereunder, which (a) pertains solely to the development of the RKSS Lot 2 Property and (b) does not modify or reduce the intensity or permissible uses of the real property described on Exhibit B attached hereto and incorporated herein by reference (the “Sunflower Partners Property”), shall only require the approval in writing of RKSS. Draft 3/5/2021 D. The Development Agreement defined the term of the agreement as the period of time from the Effective Date until the date that is twenty (20) years after the Effective Date, unless otherwise extended by the Parties. The Effective Date was conditioned on the occurrence of several conditional events. E. Pursuant to a letter from the City dated as of December 11, 2019, the City has confirmed that the Effective Date of the Development Agreement was May 15, 2001, and accordingly the current term of the Development Agreement expires on May 15, 2021. F. The Parties now desire to modify the term of the Development Agreement solely with respect to the RKSS Lot 2 Property, as more particularly set forth herein. Any capitalized word or term used in this Agreement shall have the definition or meaning ascribed to such word or term as provided in the Development Agreement, unless the word or term is otherwise expressly defined in this Agreement, in which event such word or term shall have the definition or meaning as provided herein. G. The modifications to the Development Agreement set forth herein pertain solely to the development of the RKSS Lot 2 Property, and do not otherwise affect the development, intensity or permissible uses of the Sunflower Partners Property, nor the term of the Development Agreement with respect to the Sunflower Partners Property. AGREEMENT NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by this reference, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. TERM. The first sentence of Section 3.2 of the Development Agreement is hereby deleted in its entirety and replaced with the following: “This Agreement shall be operative commencing on the Effective Date, and continuing thereafter until May 15, 2031, subject to earlier termination upon the completion, performance, and discharge of the obligations hereunder. 2. DEDICATIONS. The Parties hereby acknowledge and agree that as of the date hereof, RKSS has fulfilled the requirements set forth in Sections 2.1(i), 2.1(ii), 2.1(iii), and 2.1(iv) of the Development Agreement with respect to the RKSS Lot 2 Property, and that RKSS shall have no further obligations with respect to the foregoing sections of the Development Agreement, and there are no outstanding defaults or any occurrence or omission that but for the passage of time or the giving of requisite notice (or both) would constitute a default, under any provision of the Development Agreement. 3. MISCELLANEOUS. 3.1 This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed one original. 3.2 Each person executing this Agreement on behalf of each Party warrants and Draft 3/5/2021 represents that he, she, or they have the authority to execute this Agreement on behalf of such Party and warrants and represents that he, she, or they has/have the authority to bind such Party to the performance of its obligations hereunder. 3.3 The Parties intend hereby to amend the Development Agreement only as set forth herein, and the Parties hereby agree that, except as expressly amended hereby, all other terms and conditions of the Development Agreement are hereby confirmed and shall remain in full force and effect. [SIGNATURES CONTAINED ON FOLLOWING PAGE] SIGNATURE PAGE TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR SAKIOKA FARMS DEVELOPMENT PROPERTY IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year set forth below. CITY CITY OF COSTA MESA ______________________________ Dated: ____________________ Katrina Foley Mayor ATTEST: ______________________________ Dated: ____________________ Brenda Green City Clerk APPROVED AS TO FORM: ______________________________ Dated: ____________________ Kimberly Hall Barlow City Attorney [Signatures continued on next page] “RKSS” ROY K. SAKIOKA & SONS, a California general partnership JKS-RKS, LLC, a California limited liability company, General Partner By: Sakioka Company, LLC a Delaware limited liability company By: ____________________________ George M.K. Sakioka, its Manager By: AMS Craig, LLC, a Delaware limited liability company, General Partner By: ________________________________ Craig R. Kaihara, Manager CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT 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, ________________________________________________, Date (Insert Name and Title of the Officer) personally appeared ___________________________________________________________ Name(s) of Signer(s) ____________________________________________________________________________, 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. Place Notary Seal and/or Stamp above Signature: ______________________________________ Signature of Notary Public CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT 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, ________________________________________________, Date (Insert Name and Title of the Officer) personally appeared ___________________________________________________________ Name(s) of Signer(s) ________________________________________________________________________ ____, 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. Place Notary Seal and/or Stamp above Signature: ______________________________________ Signature of Notary Public EXHIBIT A RKSS Lot 2 Property THAT CERTAIN PARCEL OF LAND SITUATED IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING THAT PORTION OF LOT 2, TRACT NO. 10950 AS SHOWN ON A MAP THEREOF FINED IN BOOK 515, PAGES 1 THROUGH 8 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING SOUTHWESTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE NORTHWESTERLY OF THAT CERTAIN COURSE SHOWN ON SAID MAP AS “NORTH 25◌19’40” WEST 752.22 FEET” ALONG THE SOUTHWESTERLY LINE OF SAID LOT 2, SAID TERMINUS BEING ON A NON- TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 290.468 METERS, A RADIAL LINE OF SAID CURVE TO SAID TERMINUS BEARS SOUTH 38◌03’27” EAST; THENCE SOUTHWESTERLY ALONG SAID CURVE AND THE NORTHWESTERLY LINE OF LOT 3 OF SAID TRACT 20.460 METERS THROUGH A CENTRAL ANGLE OF 4◌02’09” TO THE TRUE POINT OF BEGINNING; THENCE NON-TANGENT FROM SAID CURVE SOUTH 35◌35’40” EAST, 104.306 METERS TO SAID SOUTHWESTERLY LINE OF LOT 2; THENCE CONTINUING SOUTH 35◌35’40” EAST, 72.408 METERS TO THE BEGINNING OF A CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 51.400 METERS; THENCE SOUTHERLY ALONG SAID CURVE 50.048 METERS THROUGH A CENTRAL ANGLE OF 55◌47’21” TO SAID SOUTHWESTERLY LINE OF LOT 2. LOT 2 OF TRACT NO 10950, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA AS PER MAP RECORDED IN BOOK 515, PAGES 1 TO 8 INCLUSIVE OF MISCELLANEOUS MAPS; RECORDS OF ORANGE COUNTY, CALIFORNIA, AND AS CORRECTED BY THAT CERTAIN CERTIFICATE OF CORRECTION RECORDED APRIL 23, 1986, AS INSTRUMENT NO. 86-160488, OFFICIAL RECORDS OF SAID ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THAT PORTION DESCRIBED IN DEED TO THE CITY OF COSTA MESA RECORDED OCTOBER 11, 1994, AS INSTRUMENT NO. 94- 0604167 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN DEED RECORDED APRIL 10, 2000 AS INSTRUMENT NO. 20000182742 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN DEED TO THE CITY OF COSTA MESA RECORDED MAY 8, 2000, AS INSTRUMENT NO. 20000237233 AND MAY 8, 2000, AS INSTRUMENT NO. 20000237235, BOTH OF OFFICIAL RECORDS. EXHIBIT B Sunflower Partners Property LOT 1 OF TRACT NO. 10950, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 515, PAGES 1 TO 8 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS CORRECTED BY THAT CERTAIN CERTIFICATE CORRECTION RECORDED APRIL 23, 1986, AS INSTRUMENT NO. 86-160488 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: THAT PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT NO. LL-90-11, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED APRIL 16, 1991, AS INSTRUMENT NO. 91-178038 OF OFFICIAL RECORDS LYING EASTERLY OF THE EASTERLY LINE OF THE LAND DESCRIBED IN DEED TO JACK TOSHIKI SAKIOKA AND JOHNNY KATSUI SAKIOKA RECORDED JULY 27, 1956, IN BOOK 3592, PAGE 553 OF OFFICIAL RECORDS OF SAID COUNTY. From: Kathy Esfahani <kathy.esfahani@gmail.com> Sent: Tuesday, April 6, 2021 12:39 PM To: CITY CLERK Cc: STEPHENS, JOHN; DEARAKAL, BYRON; Cesar Convarubias; Richard Walker Subject: public comment on public hearing #1 Attachments: CMAHC Letter to city council on Sakioka Lot 2 Dev Agreement.doc Please include the attached letter from the Costa Mesa Affordable Housing Coalition as our public comment on public hearing #1 , proposed extension of Sakioka Farms Development Agreement, on tonight's agenda. Thank you, Kathy Esfahani Costa Mesa Affordable Housing Coalition April 6, 2021 Mayor John Stephens and Members of the City Council City of Costa Mesa 77 Fair Drive Costa Mesa, CA 92626 Re: Proposed Extension of the Sakioka Farms Development Agreement Dear Mayor Stephens and Council Members: The Costa Mesa Affordable Housing Coalition strongly opposes the proposed extension of the Sakioka Farms Development Agreement established for Sakioka Lot 2. The original 20-year Development Agreement was adopted in May 2001 and is set to expire in May of this year. In the intervening 20 years, no development activities have occurred at the 33-acre site and it remains as an agricultural use. We urge the City Council to reject the proposed 10-year extension of this creaky, 20-year old Development Agreement. In its place, the City should negotiate a new development agreement which better meets Costa Mesa's housing --especially its affordable housing --needs of today and the future. We support the Planning Commission's decision which attempts to set the table for such an agreement. Now it is up to you, our City Council, to take the lead and negotiate the agreement we need. With the current 2021-2029 1 lousing Element update, the City's Regional Housing Needs Assessment (RHNA) allocation is 11,760 units. Of that number, 4,713 units are required for very low and low income households. To meet this incredibly steep challenge, the City must make wise land use choices, especially regarding a large tract of vacant land, a rarity in our city. The City should recognize that the 33-acre Sakioka Lot 2 site is uniquely positioned to assist the City in meeting its RHNA requirements. We believe the expiration of the Development Agreement for Sakioka Lot 2 provides a great opportunity for the City to reevaluate the site's maximum potential for accommodating high density rental housing which can help Costa Mesa achieve its RHNA, especially its lower income RHNA. We urge the City to deny the applicant's request and negotiate a new agreement which includes the following key features: 1) The applicant must set aside 20 percent of the residential units on Lot 2 to be affordable to extremely low-, very low- and low-income households. As an alternative, the applicant could donate land (e.g., 2 acres of the 33-acre site) for affordable housing and partner with a non-profit affordable housing developer to build a 100 percent affordable housing development on those 2 acres. A 100% affordable development would allow the developing partners to be more competitive in applying for low income housing tax credits and leveraging more funding towards building affordable housing. Page 1 of 2 2) The City should scrap the existing Development Agreement's limitations on the number of residential units and the "total building intensity" allowed on the 33-acre site. A cap of 660 units on a 33-acre site unduly constrains the developer from maximizing the site's potential for meeting our RHNA numbers and developing affordable housing. We urge the City to allow at least 60 units per acre at the site and to allow a far greater number of total units on the 33-acre parcel. The development limitations adopted 20 years ago no longer make sense in light of our RHNA numbers and our residents' undeniable need for affordable housing. Thank you for considering our input on this crucial issue. We look forward to partnering with you to increase affordable housing in Costa Mesa. Please let us know if you have any questions. Sincerely, /�at�� E�a�a�ri Kathy Esfahani, on behalf of the Costa Mesa Affordable Housing Coalition cc: Byron de Arakal and Planning Commission Members Cesar Covarrubias, Kennedy Commission Richard Walker, Public Law Center Page 2 of 2