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HomeMy WebLinkAbout38 - PH-3 - Attachment 1a - 6/15/2021 DEVELOPMENT AGREEMENT NO. [_____] A DEVELOPMENT AGREEMENT BETWEEN CITY OF COSTA MESA and INTERNATIONAL ASSET MANAGEMENT HOLDING GROUP, LLC a [______] -1- DEVELOPMENT AGREEMENT NO. [_____] This Development Agreement (hereinafter “Agreement”) is entered into as of this ___ day of ___________, 2020 by and between the City of Costa Mesa, California (hereinafter “CITY”), and International Asset Management Holding Group, LLC (hereinafter “OWNER”): RECITALS WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code; and WHEREAS, This Agreement constitutes a current exercise of CITY’s police powers to provide predictability to OWNER in the development approval process by vesting the permitted uses, density, intensity of use, and timing and phasing of development consistent with the Development Plan in exchange for OWNER’s commitment to provide significant public benefits to CITY as set forth in Section 4, below. WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, the City Council hereby finds and determines that this Agreement is of major significance because it will enable the development of a mixed-use project with residential, commercial, creative office and open space uses and provide the CITY with additional funds that could be used for CITY facilities and will therefore implement numerous general plan and other public policies of the CITY; and WHEREAS, the provision by OWNER of these aforementioned public benefits allows the CITY to realize significant economic, and social benefits; and WHEREAS, the physical effects, if any, of the Project and this Agreement have been analyzed pursuant to the California Environmental Quality Act (“CEQA”) (Pub. Res. Code section 21000 et seq.); and WHEREAS, this Agreement and the Project are consistent with the Costa Mesa General Plan, as amended, and any specific plan, as amended, applicable thereto; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the -2- orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Section 65864, et seq. of the Government Code are intended. COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. DEFINITIONS AND EXHIBITS. 1.1 Definitions. The following terms when used in this Agreement shall be defined as follows: 1.1.1 “Agreement” means this Development Agreement. 1.1.2 “CITY” means the City of Costa Mesa, a California municipal corporation. 1.1.3 “City Council” means the duly elected city council of the City of Costa Mesa. 1.1.4 “Commencement Date” means the date the Term of this Agreement commences. 1.1.5 “Development” means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof. 1.1.6 “Development Approvals” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to: (a) general plan, general plan amendments, specific plans and specific plan amendments; (b) tentative and final subdivision and parcel maps; (c) conditional use permits and master plans; (d) zoning, zoning map amendments, and zoning text amendments; and, -3- (e) grading and building permits. 1.1.7 “Development Exaction” means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests. 1.1.8 “Development Impact Fee” a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include park “in lieu” fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, or fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4. 1.1.9 “Development Plan” means the plan for development of the Property as set forth in the vested entitlements listed in Exhibit “C”. (a) “Director” means the Director of the City’s Development Services Department, including his or her designee. 1.1.10 “Effective Date” means the date the ordinance approving and authorizing this Agreement becomes effective. 1.1.11 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing: (a) the conduct of businesses, professions, and occupations; (b) taxes (special or general) and assessments; (c) the control and abatement of nuisances; (d) the granting of encroachment permits and the conveyance of rights and interests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain. -4- 1.1.12 “OWNER” means the persons and entities listed as OWNER on page 1 of this Agreement and their successors in interest to all or any part of the Property. 1.1.13 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns. 1.1.14 “Project” means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement. 1.1.15 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement. 1.1.16 “Public Benefit” refers to those benefits provided to the CITY and the community by OWNER pursuant to Section 4 below. 1.1.17 “Reservation of Rights” means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.3 of this Agreement. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit “A” – Legal Description of the Property. Exhibit “B” – Map showing Property and its location. Exhibit “C” – Development Plan. Exhibit “D” – Development Impact Fees 2. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby fully vested and authorized and shall be carried out in substantial accordance with the terms of the Development Plan and this Agreement. 2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to, or has an equitable interest in, the Property or a portion thereof. 2.3 City Council Findings. The City Council finds that: 2.3.1 This Agreement is consistent with the CITY’s General Plan, as amended. 2.3.2 This Agreement ensures a desirable and functional community environment, provides effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project and enhances effective utilization of resources within the CITY. -5- 2.3.3 This Agreement provides public benefits to the City. 2.3.4 This Agreement strengthens the public planning process, encourages private participation in comprehensive planning and reduces costs of development and government. 2.3.5 The best interests of the citizens of the CITY and the public health, safety, and welfare will be served by entering into this Agreement. 2.4 Term. The term of this Agreement shall commence on the date (the “Commencement Date”) that is the Effective Date, and shall continue for a period of twenty five (25) years thereafter, unless this term is modified or extended pursuant to the provisions of this Agreement. Thereafter, the OWNER shall have no vested right under this Agreement, regardless of whether or not OWNER has paid any Development Impact Fee. 2.5 Assignment. 2.5.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.) to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent: (a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. (b) Concurrent with any such sale, transfer or assignment, OWNER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement (“Assignment and Assumption Agreement”), in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein th at the purchaser, transferee or assignee expressly and unconditionally assumes all the duties, obligations, agreements, covenants, waivers of OWNER under this Agreement, including, without limitation, the covenants not to sue and waivers contained in Sections 7.2 and 8.4 hereof. Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.5.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. 2.5.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement with respect to the transferred Property or any transferred portion thereof, unless such transferring -6- OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring OWNER of the following conditions: (a) OWNER no longer has a legal or equitable interest in all or any part of the Property subject to the transfer. (b) OWNER is not then in default under this Agreement. (c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.5.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder. 2.5.3 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section. 2.5.4 Utilities. The Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project, prior to the issuance of a certificate of occupancy for any portion of the Project. 2.5.5 Sale to Public and Completion of Construction. The provisions of Subsection 2.5.1 shall not apply to the sale or lease (for a period longer than one year) of any lot or condominium that has been finally subdivided and is individually (and not in "bulk") sold or leased to a member of the public or other ultimate user. This Agreement shall terminate with respect to any lot/condominium and such lot/condominium shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions: (a) The lot/condominium has been finally subdivided and individually (and not in "bulk") sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and (b) A certificate of occupancy has been issued for a building on the lot/condominium, and the fees for such lot set forth in this Agreement have been paid. 2.6 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. 2.7 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the stated term of this Agreement as set forth in Section 2.4. -7- (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement. (c) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications. Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement that has occurred prior to such termination or with respect to any obligations that are specifically set forth as surviving this Agreement. Upon such termination, any Development Impact Fees paid by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY. 2.8 Notices. (a) As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows: If to CITY: City of Costa Mesa 77 Fair Drive Costa Mesa, CA 92627 (714) 754-5245 Attn: City Manager Copy to: Jones & Mayer 3777 N Harbor Blvd. Fullerton, CA (714) 446-1400 Attn: Kimberly Hall Barlow -8- If to OWNER: Rose Equities, as agent for International Asset Management Holding Group, LLC 8383 Wilshire Boulevard, Suite 632 Beverly Hills, CA 90211 Attn: Brent Stoll Telephone: (323) 782-4300 Copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92694 Attn: John A. Ramirez Telephone: (714) 662-4610 (c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. 3. DEVELOPMENT OF THE PROPERTY. 3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservation of Rights, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, this Agreement. Except as expressly provided otherwise herein, the Project shall remain subject to all Land Use Regulations and Development Approvals in effect on the Effective Date that are required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Land Use Regulations and Development Approvals in effect on the Effective Date or, if consented to by OWNER, those subsequently adopted or amended. OWNER shall comply with all mitigation measures required to be undertaken pursuant to any document prepared in compliance with the California Environmental Quality Act with respect to the Project. 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservation of Rights, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Land Use Regulations and Development Approvals in effect on the Effective Date. In connection with any subsequently adopted Development Approvals and except as specifically provided otherwise herein, CITY may exercise its di scretion in accordance with the Land Use Regulations then in effect, as provided by this Agreement, including, but not limited to, the Reservation of Rights. CITY shall accept for processing, review and action all -9- applications for subsequent development approvals, and such applications shall be processed expeditiously. 3.3 Reservation of Rights. 3.3.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following regulations shall apply to the development of the Property: (a) Processing fees and charges of every kind and nature imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including, without limitation, all uniform codes adopted by the City and any local amendments to those codes adopted by the CITY, including, without limitation, the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Grading Ordinance. (d) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, ei ther throughout the CITY or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in Section 4 of this Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Agreement to the extent such fees fulfill the same purposes. (e) Regulations that may be in material conflict with this Agreement but that are reasonably necessary to protect the residents of the project or the immediate community from a condition perilous to their health or safety. To the extent possible, any such regulations shall be applied and construed so as to provide OWNER with the rights and assurances provided under this Agreement. (f) Regulations that are not in material conflict with this Agreement or the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to materially conflict with the Development Plan and shall therefore not be applicable to the development of the Property. (g) Regulations that are in material conflict with the Development Plan; provided OWNER has given written consent to the application of such regulations to -10- development of that Property in which the OWNER has a legal or equitable interest. (h) Regulations that impose, levy, alter or amend fees, charges, or Land Use Regulations relating to consumers or end users, including, without limitation, trash can placement, service charges and limitations on vehicle parking. (i) Regulations of other public agencies, including Development Impact Fees adopted or imposed by such other public agencies, although collected by CITY. 3.3.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on subsequent development approvals and to the same extent it would otherwise be authorized to do so absent this Agreement, from applying subsequently adopted or amended Land Use Regulations that do not materially conflict with this Agreement and do not impose increased costs on OWNER. 3.3.3 Modification or Suspension by State or Federal Law. In the event that State, County or Federal laws or regulations, enacted after the Effect ive Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining pr ovisions impractical to enforce. 3.4 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY may possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. 3.5 Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties in that case to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parties’ agreement, it is the specific intent of the Parties to provide for the timing of the Project in this Agreement. To do so, the Parties acknowledge and provide that Owner shall have the right, but not the obligation, to complete the Project in such order, at such rate, at such times, and in as many development phases and sub-phases as Owner deems appropriate in its sole subjective business judgment. 3.6 Conditions, Covenants and Restrictions. Owner shall have the ability to reserve and record such covenants, conditions, and restrictions (CC&Rs) against the Property as Owner deems appropriate, in its sole and absolute discretion. Such CC&Rs may not conflict with this Agreement or the General Plan. Before recording any CC&Rs, Owner shall provide a copy of the CC&Rs to the City for review and approval by the City Attorney. The City Attorney’s review shall be limited to determining if the CC&Rs substantially comply with this Agreement. Within thirty (30) days after receiving a copy of the proposed CC&Rs from Owner, the City Attorney shall provide Owner with either (i) a statement that the CC&Rs comply with this Agreement (“CC&R Approval”) or (ii) written comments identifying each aspect of the -11- CC&Rs which the City Attorney believes not to be in compliance with this Agreement (a “Statement of Non-Compliance”). If the City Attorney fails to provide Owner with either CC&R Approval or a Statement of Non-Compliance within thirty (30) days following a written request by Owner, City shall be deemed to have approved the CC&Rs and Owner may record the CC&Rs against the Property. If the City Attorney provides a Statement of Non -Compliance, Owner shall have thirty (30) days in which to respond to the Statement of Non-Compliance. Upon submittal of Owner’s response, the procedure described above for the initial submittal and City Attorney review of proposed CC&Rs shall again be followed. This procedure shall be followed until Owner either (1) receives CC&R Approval, (2) submits the compliance issues to binding arbitration pursuant to the rules of the American Arbitration Association, (3) files an action for declaratory relief in Orange County Superior Court seeking a judicial determination of the compliance of the proposed CC&Rs, or (4) an agreement is otherwise reached between the Parties allowing for the recording of the CC&Rs. The CC&Rs may run with the land and bind Owner’s successors and assigns. Except as provided above, any dispute between the Parties regarding the City’s approval or rejection of the CC&Rs shall be subject to immediate and binding arbitration pursuant to the rules of the American Arbitration Association. 4. PROJECT BENEFITS & COMMITMENTS 4.1 Public Benefits: The Project will serve to redevelop an industrial site, will provide on-site infrastructure upgrades; and will provide additional housing opportunities to residents of the City. In addition, the Project will improve the City’s open space and recreational facilities by providing the following: 4.1.1 Public Open Space: The Project will include the construction, ongoing maintenance and management of a 1.5-acre passive open space area that will be made available to the general public through dedication of a public access easement to the CITY; 4.1.2 Community Center: The Project will also include construction, ongoing maintenance and management of a 1,500-square-foot community room located in Building B that will be made available for use to the CITY at no cost and to the general public subject to the same cost and schedule availability applicable to Project residents (subject to commercially reasonable rules regarding access, insurance requirements, security, etc.,); 4.1.3 Sunflower Avenue Improvements: The Project will include off-site improvements to Sunflower Avenue that would include, but not be limited to, wider pedestrian sidewalks, street furniture, lighting, wayfinding and public art, pedestrian signal, pedestrian and bike crossings, improved bicycle lanes (beyond the Class II facilities required along the Project frontage) with identification and separation from vehicles, new landscaped street median pockets, and striped on-street parking along the south side of Sunflower Avenue; 4.1.4 Maintenance of Off-Site Improvements: The CITY will maintain pavement, curb and gutter; the OWNER is to maintain offsite landscaping, irrigation and other features; -12- 4.1.5 Advancement of Development Impact Fees: OWNER shall pay all development impact fees identified in Section 4.3 to the CITY prior to the issuance of the first building permit; 4.1.6 Funding for Public Safety: prior to issuance of first building permit OWNER shall pay to CITY the sum of two million dollars ($2,000,000.00) to be used, in the City’s sole and absolute discretion, to enhance the operations of the CITY’s Police and Fire departments, including, but not limited to updates to the firing range, replacement Fire apparatus, and other public safety related projects and/or expenses; 4.1.7 Funding for Community Infrastructure Improvements: prior to issuance of first building permit OWNER shall pay to CITY the sum of one million dollars ($1,000,000.00) to be used, in the City’s sole and absolute discretion, to be used toward City-wide roadway and trail improvements (e.g. Adams Avenue improvements and Citywide bike trail improvements); 4.1.8 Economic Recovery and Community Enhancement Fund: prior to issuance of first building permit OWNER shall pay to CITY the sum of three million dollars ($3,000,000.00) to be used by the City, in its sole and absolute discretion, to assist community initiatives enhancement programs and projects related to economic sustainability and recovery, and/or to support essential governmental functions impacted during states of emergency and/or recovery therefrom, and/or other community enhancement efforts such as park and open space acquisition, rehabilitation, refurbishment or enhancement (e.g. Shalimar Community Center, Ketchum-Libolt park improvements, etc.). 4.1.9 Gisler Avenue/Garfield Avenue Bridge: OWNER agrees to support CITY’s objections to and actions to remove the planned Gisler/Garfield Avenue Santa Ana River crossing from the OCTA’s Master Plan of Arterial Highways (“OCMPAH”). 4.2 Affordable Housing. It is the intent of CITY to consider and adopt a citywide affordable housing program to require the inclusion of affordable housing, or fees in- lieu thereof, in conjunction with all new residential development. The Project shall provide one hundred six (106) of its units at rates that are affordable to lower-income families; of the total units, sixty-seven (67) units shall be reserved for very low-income and thirty-nine (39) units for low-income tenants. The Project shall not satisfy this requirement by payment of fees in-lieu thereof. The provisions of this Section 4.2 shall continue to apply in the event of a condominium conversion. Affordable units shall be deed restricted in a form approved by the Director and maintained in for a period of not less than forty (40) years from the date of the last certificate of occupancy of the Project at the affordability levels described in this section. Such units shall be evenly distributed throughout the Project and shall be identical to all other similarly sized units at the Project in terms of design, construction, access and OWNER provided amenities. Construction of affordable units will be proportional throughout the development of the Project, such that a proportional share of affordable units will be included in each phase of development, i.e., if the first phase of the Project is 25% of the total residential units, then approximately 25% of the total affordable units must be completed in that first phase, etc. In addition, the sizes of the affordable units shall be proportionate to the sizes of all other units within the Project, i.e., if the Project is -13- comprised of 40% one-bedroom, 50% two-bedroom and 10% three-bedroom, then the bedroom count for the affordable units shall be similarly allocated. If OWNER determines to record a Final Tract Map and convert the apartment units to condominium units, and notwithstanding any provision of Section 2.5.5 of this Agreement to the contrary, Owner shall either: maintain the residential rental units as rental units at the then current income and affordability levels described in this section; market for sale and thereafter sell the units based on the then current income and affordability levels described in this section; or, if applicable, relocate any and all tenants residing in affordable units under the terms imposed by applicable law and/or the citywide affordable housing program in existence at the time of relocation and sell the former rental units at the then current income and affordability levels described in this section. 4.3 Development Impact Fees. 4.3.1 Parkland Impact Fee. The Project will be subject to the park impact fee for apartment units at $5,000.00 per unit and shall be paid to the CITY prior to the issuance of the first building permit. The project includes a subdivision for condominium purposes that OWNER indicates may or may not be exercised. Should the OWNER determine to record a Final Tract Map and convert the apartment units to condominium units, OWNER shall pay the difference in fees between the initial $5,000.00 per unit park impact fee and the fee in place at the time of Map recordation for condominium units. The Tentative Tract Map shall remain valid for the term of this agreement and expire coterminous with this agreement if not exercised. 4.3.2 Traffic Impact Fee. The Project will be subject to the traffic impact fee for all additional vehicle trips generated by the Project at the rate in place at the time of approval of the Project (currently two hundred thirty-five dollars ($235.00) per additional vehicle trip) and shall be paid to the CITY prior to the issuance of the first building permit. The Project will generate a total of six thousand eight hundred (6,800) vehicle trips. 4.3.3 Open Space and Public Park Impact Fee (Measure Z). The Project is subject to the Open Space and Public Park Impact Fee (also known as Measure Z) at the fee established by Resolution of the City Council at the time of issuance of the first building permit up to $1.50 per square foot. The fee shall be paid to the CITY prior to the issuance of the first building permit. 4.3.4 Fire Protection System Development Impact Fee. The intent of the parties is that the Project shall be subject to the most current Fire Protection System Development Impact Fee. Accordingly, the Project is subject to a Fire Protection System Development Impact fee in an amount calculated to be the equivalent of the North Costa Mesa Fire Fee study; provided, however, that if a new citywide Fire Protection System Development Impact Fee study is adopted after issuance of first building permit, the Project shall then be subject to this new fee. 4.3.5 Time of Payment. Except as described in Subsection 4.3, the fees required shall be paid to CITY in accordance with the terms of the implementing ordinance(s)as specified in Exhibit D. 4.4 Dedication of On-Site Easements and Rights of Way. OWNER shall dedicate to CITY all on-site rights of way and easements deemed necessary for public improvements, in -14- CITY's sole discretion, within 15 days of receipt of written demand from CITY. 5. FINANCING OF IMPROVEMENTS. If deemed appropriate by CITY, CITY and OWNER shall cooperate in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for the construction and/or maintenance and operation of public or private improvements required as part of the Development Plan and/or payment of any Development Impact Fees. Without limiting the generality of the foregoing, for the purposes of this paragraph, included within the definition of public improvements are street improvements, sewer improvements, drainage improvements, water improvements, other utility improvements, park improvements, trail improvements, pedestrian or bicycle improvements and open space. To the extent any such district or other financing entity is formed and sells bonds in order to finance such reimbursements, OWNER may be reimbursed to the extent that OWNER spends funds or dedicates land for the establishment of public improvements. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds. 6. REVIEW FOR COMPLIANCE. 6.1 Periodic Review. The CITY may review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the compliance by OWNER with the terms of the Agreement. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the Director, within thirty (30) days after written notice from the CITY. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council. 6.2 Special Review. The City Council may order a special review of compliance with this Agreement at any time. The Director, or his or her designee, shall conduct such special reviews. 6.3 Procedure. (a) During either a periodic review or a special review, OWNER shall be required to demonstrate good faith compliance with the terms of the Agreement. The burden of proof on this issue shall be on OWNER. (b) Upon completion of a periodic review or a special review, the Director, or his or her designee, may submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by OWNER with the terms of this Agreement and his or her recommended finding on that issue. (c) If the Planning Commission finds and determines on the basis of substantial evidence that OWNER has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded. (d) If the Planning Commission finds and determines on the basis of -15- substantial evidence that OWNER has not complied in good faith with the terms and conditions of this Agreement, the Commission may recommend to the City Council modification or termination of this Agreement. Notice of default as provided under Section 7.3 of this Agreement shall be given to OWNER prior to or concurrent with proceedings under Section 6.4 and Section 6.5. 6.4 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.3, CITY determines to proceed with modification or termination of this Agreement, CITY shall give written notice to OWNER of its intention so to do. The notice shall be given at least ten (10) calendar days prior to the scheduled hearing and shall contain: (a) The time and place of the hearing; (b) A statement as to whether or not CITY proposes to terminate or to modify the Agreement; and, (c) Such other information that the CITY considers necessary to inform OWNER of the nature of the proceeding. 6.5 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, OWNER shall be given an opportunity to be heard. OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council finds, based upon substantial evidence, that OWNER has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the CITY. The decision of the City Council shall be final. 6.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon request by OWNER, issue a Certificate of Agreement Compliance (“Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Director and City Council that: (1) this Agreement remains in effect; and (2) OWNER is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Director or City Council. 7. DEFAULT AND REMEDIES. -16- 7.1 Remedies in General. It is acknowledged by the Parties that neither CITY nor OWNER would have entered into this Agreement if either were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except damages. 7.2 Release. Except for non-monetary remedies, OWNER, for itself, its successors and assignees, hereby releases CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth and Fourteenth Amendments to the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon CITY because it entered into this Agreement or because of the terms of this Agreement. OWNER hereby acknowledges that it has read and is familiar with the provisions of California Civil Code Section 1542, which is set forth below: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” By initialing below, OWNER hereby waives the provisions of Section 1542 in connection with the matters that are the subject of the foregoing waivers and releases. _______________ Owner’s Initials 7.3 Termination or Modification of Agreement for Default of OWNER. CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default"); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has as determined by the Director failed to commence the actions necessary to cure such default within such sixty (60) day period and to diligently proceed to complete such actions and cure such default. 7.4 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within sixty (60) -17- days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day period and to diligently proceed to complete such actions and cure such default. 8. LITIGATION. 8.1 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement, or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any claim, action, proceeding or determination included within this Section 8.1, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such cl aim, action, proceeding or determination, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action, proceeding or determination. 8.2 Environmental Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action. 8.3 Reservation of Rights. With respect to Section 8.1 and Section 8.2 herein, CITY reserves, the right to either (1) approve the attorney(s) that the indemnifying party selects, hires or otherwise engages to defend the indemnified party hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that the indemnifying party shall reimburse the indemnified party forthwith for any and all reasonable expenses incurred for such defense, including attorneys’ fees, upon billing and accounting therefor. 8.4 Challenge to Existing Land Use Approvals. By accepting the benefits of this Agreement, OWNER, on behalf of itself and its successors in interest, hereby expressly agrees and covenants not to sue or otherwise challenge any land use approval affecting the Property and in effect as of the Effective Date. Such agreement an d covenant includes, without limitation, the covenant against any direct suit by OWNER or its successor in interest, or any participation, encouragement or involvement whatsoever that is adverse to CITY by OWNER or its successor in interest, other than as part of required response to lawful orders of a court or other body of competent jurisdiction. OWNER hereby expressly waives, on behalf of itself and its successors in interest, any claim or challenge to any land use approval affecting the Property and in effect as of the Effective Date. In the event of any breach of the covenant or waiver -18- contained herein, CITY shall, in addition to any other remedies provided for at law or in equity, be entitled to: (a) impose and recover (at any time, including after sale to a member of the public or other ultimate user) from the party breaching such covenant or waiver, the full amount of Development Impact Fees that the breaching party would have been required to pay in the absence of this Development Agreement; and (b) impose any subsequently adopted land use regulation on those land use approvals for which the breaching party had not, as of the time of such breach, obtained a building permit. OWNER hereby acknowledges that it has read and is familiar with the provisions of California Civil Code Section 1542, which is set forth below: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” By initialing below, OWNER hereby waives the provisions of Section 1542 in connection with the matters that are the subject of the foregoing waivers and releases. _______________ Owner’s Initials 8.5 Survival. The provisions of Sections 8.1 through 8.4, inclusive, shall survive the termination of this Agreement. 9. MORTGAGEE PROTECTION. The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges: (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the -19- Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER's obligations under this Agreement. (c) If CITY timely receives a request from a mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement , CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER's obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY's performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.5 of this Agreement. 10. MISCELLANEOUS PROVISIONS. 10.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Orange County Recorder by the Clerk of the City Council within ten (10) days after the City enters into the Agreement, in accordance with Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement, or if the CITY terminates or modifies this Agreement as provided herein for failure of the OWNER to comply in good faith with the te rms and conditions of this Agreement, the City Clerk shall have notice of such action recorded with the Orange County Recorder. 10.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 10.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Project Benefits & Commitments set forth in Section 4 of this Agreement, including the payment of the Development Impact Fees set forth therein, are -20- essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event any such provision is determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever. 10.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof. 10.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 10.6 Singular and Plural. As used herein, the singular of any word includes the plural. 10.7 Joint and Several Obligations. If at any time during the Term of this Agreement the Property is owned, in whole or in part, by more than one OWNER, all obligations of such OWNERS under this Agreement shall be joint and several, and the default of any such OWNER shall be the default of all such OWNERS. Notwithstanding the foregoing, no OWNER of a single lot that has been finally subdivided and sold to such OWNER as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as expressly provided for herein. 10.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 10.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 10.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 10.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party's control, (including the party's employment force), government regulations, court actions and pending litigation (such as lawsuits seeking to overturn the project approvals, restraining orders or injunctions), or other causes beyond the party's control. If any such events shall occur, the Term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, -21- provided that the Term of this Agreement shall not be extended under any circumstances for more than five (5) years. 10.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party. 10.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof. 10.14 Counterparts. 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 the same instrument. 10.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 10.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property. 10.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 10.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain. -22- 10.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Director and the City Clerk, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. 10.20 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below. OWNER International Asset Management Holding Group, LLC ____________________________________ Brent Stoll, [Title] Dated: _______________ CITY CITY OF COSTA MESA, a California municipal corporation _________________________________ Katrina Foley, Mayor Dated: _______________ ATTEST _________________________________ Brenda Green, City Clerk -23- APPROVED AS TO LEGAL FORM ____________________________________ Kimberly Hall Barlow, City Attorney -24- EXHIBIT “A” (Legal Description of the Property) Parcel 1, in the City of Costa Mesa, County of Orange, State of California, as shown on map filed in Book 73, Pages 11 and 12 of Parcels Maps, in the office of the County Recorder of said County. APN: 13-031-62 and 139-651-14 -25- EXHIBIT “B” -26- EXHIBIT “C” (Development Plan) General Plan Amendment No. 20-01 Specific Plan No. 20-01 Zone Change No. 20-01 Tract Map No. 19015 Master Plan No. 19-19 -27- EXHIBIT “D” (Development Impact Fees) CITY OF COSTA MESA DEVELOPMENT IMPACT FEES Fee Type Fee Amount Time of Payment Park Impact Fee $5,000 per unit Apartment Project: Prior to the issuance of the first building permit Condominium Project: Prior to Final Tract Map approval, payment for the difference in fees between the initial $5,000.00 per unit park impact fee and the fee in place at the time of Map recordation for condominium units Traffic Impact Fee $235 for additional trips Prior to the issuance of the first building permit; The project will generate a total of 6,800 vehicle trips Open Space and Public Park Impact Fee (Measure Z) $1.50 per SF per City Council Resolution 17-19 Prior to issuance of the first building permit Fire Protection System Development Impact Fee Equivalent to North Costa Mesa Specific Plan ($0.28 per square foot of new development and $469.35 per new residential unit) or fee in effect as a result of a new citywide fire fee study Prior to issuance of the first building permit Drainage Fees Fees effective at the time of building permit issuance (currently $5,026.00 per acre) Prior to building permit issuance OTHER AGENCY DEVELOPMENT IMPACT FEES Newport-Mesa Unified School District Fees effective at the time of building permit issuance (currently 1.84 per SF) Payment of non-city fees are required prior to building permit issuance or as otherwise required by the implementing agency. Costa Mesa Sanitary District Plan check and permit fees effective at the time of building permit issuance Mesa Water District Plan check and permit fees effective at the time of building permit issuance San Joaquin Hills Transportation Corridor Fees Fees effective at the time of building permit issuance (currently $2,664 for multi-family)