HomeMy WebLinkAbout07 2ND AMENDMENT TO DDA-TUSTIN GATEWAY HOTEL/RETAIL DEVELOPMENTAgenda Item 7
Reviewed:
AGENDA REPORT City Manager
Finance DirectorN A
MEETING DATE: APRIL 16, 2013
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: JOHN A. BUCHANAN, PROGRAM MANAGER
SUBJECT: TUSTIN GATEWAY HOTEL AND RETAIL DEVELOPMENT -
2ND AMENDMENT TO DISPOSITION AND DEVELOPMENT
AGREEMENT (DDA)
SUMMARY:
Approval is requested to amend the DDA to: 1) allow a single "drive-through" on the
southern pad of the retail parcel in connection with a Class A retail use, 2) modify the
schedule of performance for completing the retail development, and 3) obtain the
agreement of the Developer to fund one-third of the installation of a traffic signal on
Newport Avenue adjacent to the site.
RECOMMENDATION:
Authorize the City Manager to execute the following attached documents: (a) 2nd
Amendment to the DDA (b) Memorandum of Amendment No. 2 to DDA and (c) First
Amendment to Declaration of Reciprocal Easements, Covenants, Conditions and
Restrictions, each by and among the City of Tustin, R.D. Olson Development
(Developer) and three development entities TUSTIN GATEWAY RI SPE, LLC, TUSTIN
GATEWAY FIS SPE, and TUSTIN RETAIL SPE, LLC, (Developer Owners) subject to
any non -substantive modifications as may be deemed necessary and/or recommended
by the City's special real estate counsel or the City Attorney.
FISCAL IMPACT:
The Developer has agreed to pay for a portion (approximately 33%) of the cost of
installing a traffic signal. The Developer has agreed to pay the legal costs associated
with the drafting and processing of this proposed amendment.
BACKGROUND:
In July 2011, the City entered into a DDA with Olson Real Estate Group, Inc. (dba R.D.
Olson Development) for the development of two hotels and approximately 16,000
square feet of retail development on approximately 8.3 acres located east of and
adjacent to State Route 55. Subsequent to the execution of the DDA, R.D. Olson
Development created three separate development entities, for Parcel A ("Marriott
Residence Inn"), Parcel B ('Retail Parcel") and, Parcel C ("Fairfield Inn and Suites"). In
July 2012, the City conveyed each of the three parcels, through separate quitclaim
Agenda Report — 2nd Amendment to DDA with Tustin Gateway Development Entities
April 16, 2013
Page 2 of 3
deeds, to the above entities pursuant to the terms of the DDA. The Marriott Residence
Inn and the Fairfield Inn are under construction with completion scheduled for summer
of this year.
The 1St Amendment to the DDA, approved in December 2011, allowed for the inclusion
of the Fairfield Inn and Suites as an acceptable hotel brand. The proposed 2nd
Amendment to the DDA does the following: a) modifies the project definition for retail
development to range from 10,000 to 16,000 square feet to allow for more flexibility in
attracting tenants, b) releases restrictions on drive-through uses by allowing for a single
drive-through for the southern retail pad only in conjunction with a Class A retail use, c)
requires the Developer to participate in funding a traffic signal on Newport Avenue
adjacent to the site, and d) modifies the schedule on the southern retail pad to allow
construction to commence no later than December 5, 2013 and to be completed by
December 5, 2014 and on the northern retail pad to allow construction to commence no
later than December 5, 2014 and to be completed by July 5, 2015.
On March 27, 2013, the Developer submitted the requested discretionary approvals
which are being presented as a comprehensive and concurrent application for the
Planning Commission's consideration on April 23, 2013. The Planning Commission will
be considering the following: a) a Conditional Use Permit (CUP) for drive-through
service to support a Starbuck's Coffee Shop on the southern retail pad; and, b) the
modification of a previously approved Master Sign Program to allow an additional
freeway -oriented pylon sign. The Planning Commission must approve the above
actions for implementation of the 2nd Amendment to the DDA.
Environmental Documentation
On December 17, 1990, the Tustin City Council certified Final Environmental Impact
Report (FEIR) 90-1 for the Pacific Center East Specific Plan, and adopted Supplement
#1 to Final EIR 90-1 for the Pacific Center East Specific Plan on May 5, 2003. The
FEIR is a Program EIR under the California Environmental Quality Act ("CEQA."). The
FEIR considered the potential environmental impacts associated with the development
of the Pacific Center East Specific Plan.
On July 5, 2011, the Tustin City Council approved Resolution No. 11-48 approving
Disposition and Development Agreement 2011-01 for the purposes of constructing
approximately 300 hotel rooms and 16,000 square feet of retail space located within the
project site. Proposed 2ND Amendment to DDA 2011-01 is a project under the CEQA.
Pursuant to Section 15061(b)(3) the activity proposed is covered by the general rule
that CEQA applies only to projects with the potential for causing a significant effect on
Agenda Report — 2nd Amendment to DDA with Tustin Gateway Development Entities
April 16, 2013
Page 3 of 3
the environment. Proposed 2nd Amendment to DDA 2011-01 is only intended to clarify
stipulations and provisions of the DDA and will not cause or permit significant increases
of development potential on the site. Therefore, it can be seen with certainty that there
is no possibility that the activity in question may have a significant effect on the
environment. All potentially significant effects 1) have been analyzed adequately in an
earlier EIR pursuant to applicable standards, and 2) have been avoided or mitigated
pursuant to that earlier EIR, including revisions or mitigation measures that are imposed
upon the proposed project. Future implementation activities will continue to be required
to comply with applicable conditions of approval and mitigation measures associated
with the project.
AMENDMENT NO. 2 TO
DISPOSITION AND DEVELOPMENT AGREEMENT 2011-01
(TUSTIN GATEWAY PROJECT)
This AMENDMENT NO. 2 TO DISPOSITION AND DEVELOPMENT AGREEMENT
2011-01 (TUSTIN GATEWAY PROJECT) (this "Second Amendment") is entered into as of
April 16, 2013 (the "Second Amendment Effective Date") by and among the CITY OF
TUSTIN, a municipal corporation of the State of California (the "City"), Olson Real Estate
Group Inc., dba R.D OLSON DEVELOPMENT, a California Corporation ("Olson"), TUSTIN
GATEWAY RI SPE, LLC, a California limited liability company ("RI Developer"), TUSTIN
GATEWAY FIS SPE, LLC, a California limited liability company("FIS Developer"), and
TUSTIN RETAIL SPE, LLC, a California limited liability company ("Retail Developer';
collectively with the RI Developer and the FIS Developer, the "Developer Owners", and
collectively with Olson, "Developer"). The City, Olson and the Developer Owners are
sometimes referred to herein individually as a "Party" and collectively as the "Parties."
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such
terms in the DDA.
RECITALS
A. The City and Olson entered into that certain Tustin Legacy Disposition and
Development Agreement 2011-01 (Tustin Gateway Project) dated as of July 5, 2011 as amended
by that certain Amendment No. 1 to Disposition and Development Agreement 2011-01 (Tustin
Gateway Project) dated December 6, 2011 (collectively, the "Original DDA") pursuant to
which, among other things, the City agreed to sell, and Olson agreed to purchase, the Property
(defined below) and Olson and the City agreed to a schedule of performance and a scope of
development for the Project to be constructed by Olson upon the Property. Initially capitalized
terms not defined herein shall have the respective meanings assigned to such terms in the
Original DDA.
B. The Original DDA was memorialized in that certain Memorandum of Disposition
and Development Agreement 2011-01 (Tustin Gateway Project) executed by the Parties on July
25, 2012 and recorded on July 31, 2012 in the Official Records of Orange County, California
("Official Records"), as Instrument No. 2012000436476 (the "Original Memorandum of
DDA"). Approximately concurrently therewith, the City executed and recorded against the
Property that certain Declaration of Reciprocal Easements, Covenants, Conditions, and
Restrictions Including Environmental Restrictions pursuant to Civil Code Section 1471 executed
by the City on July 25, 2012 and recorded in the Official Records on July 31, 2012 as Instrument
No. 2012000436469 as subsequently amended by that certain First Amendment to Declaration of
Reciprocal Easements, Covenants, Conditions, and Restrictions Including Environmental
Restrictions pursuant tb Civil Code Section 1471 by and among the Parties dated of even date
herewith and recorded in the Official Records immediately following the recordation of this
Memorandum of Amended DDA (as amended, the "Declaration") and thereafter conveyed a
portion of the Property to each of the Developer Owners as further described below.
C. Although Olson assigned its rights as "Developer" under the DDA (including its
rights to acquire and develop the Property) to the Developer Owners, each of which is a
Developer Affiliate, under the terms of the DDA, Olson was not released by the City from its
obligations under the DDA and remains fully liable for all obligations and liabilities of
Developer under the DDA, the Declaration and the Entitlements.
D. The "Development Parcels" affected by the DDA consists of the following
properties (also denominated in the Original DDA as Parcel A, Parcel B and Parcel C,
respectively):
(1) The "RI Hotel Property" consisting of approximately 3.43 acres of land legally
described in and conveyed by the City to the RI Developer pursuant to that certain
Quitclaim Deed dated July 25, 2012 and recorded in the Official Records on July 31,
2012 as Instrument No. 2012000436470 (the "RI Hotel Quitclaim Deed"),
(2) The "Retail Property" consisting of approximately 1.81 acres of land legally
described in and conveyed by the City to the Retail Developer pursuant to that certain
Quitclaim Deed dated July 25, 2012 and recorded in the Official Records on July 31,
2012 as Instrument No. 2012000436472 (the "Retail Property Quitclaim Deed"),
(3) The "FIS Hotel Property" consisting of approximately 2.29 acres of land, legally
described in and conveyed by the City to the FIS Developer pursuant to that certain
Quitclaim Deed dated July 25, 2012 and recorded in the Official Records on July 31,
2012 as Instrument No. 2012000436471 (the "FIS Hotel Quitclaim Deed'; and
collectively with the RI Hotel Quitclaim Deed and the Retail Property Quitclaim Deed,
the "Quitclaim Deeds"),
but expressly reserving from each such Quitclaim Deed: (i) certain water and oil and mineral
rights explicitly reserved to the City pursuant to such Quitclaim Deed and (ii) street and public
utility rights-of-way and any of the land to be dedicated by the Developer to and/or reserved by
the City for any purpose. The Parcels, excluding the foregoing rights and interests and such
other rights and interests explicitly reserved to the City in the Quitclaim Deeds, and together with
certain improvements and personal property as more fully described in the DDA and certain
easement rights more fully described in the Declaration, are more specifically described in the
DDA as the "Property." The DDA also affects certain property referred to therein as the Water
Well Parcel, as legally described in the Original Memorandum of DDA, which is owned by the
City. The Development Parcels, together with the Water Well Parcel, are depicted on
Attachment No. 3A to this Second Amendment.
E. The RI Developer and the FIS Developer have each commenced construction of
the hotels comprising a portion of the Project, on Parcel A and Parcel C, respectively.
F. The City and Developer desire to further amend the Original DDA in order: (i) to
extend the time period for commencement and completion of construction of the retail buildings
on the Northern Pad and the Southern Pad (each as defined below and depicted on Attachment
No. 3A to this Second Amendment) of Parcel B and (ii) to amend the description of the Project
and the Scope of Development to permit (x) development of a maximum of one (1) "Class A"
drive-through use the Southern Pad, (y) development of between 10,000 and 16,000 square feet
of Retail Space on Parcel B and (z) an amendment to the sign program to add an additional pylon
sign and certain other modifications (collectively, the "Amended Project Elements") and for
the other purposes set forth below. The Original DDA as amended by this Amendment is
referred to herein as the "Agreement."
AGREEMENT
NOW THEREFORE, in consideration of the foregoing Recitals, which are hereby
incorporated in the operative provisions of this Amendment by this reference, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties further agree as follows:
1. Modifications to Attachment No. 1 (Glossary of Defined Terms).
The following terms shall be added to Attachment No. 1 (Glossary of Defined Terms) in
alphabetical order:
"Additional Entitlements" shall have the meaning set forth in Section 8.3.7 of the Agreement.
"Amended Project Elements" shall have the meaning set forth in Recital E of the Second
Amendment.
"Developer Owners" shall have the meaning set forth in the Second Amendment to the DDA.
"FIS Developer" shall have the meaning set forth in the Second Amendment to the DDA.
"Northern Pad" shall mean the portion of Parcel B (i.e., the Retail Property) located to the north
of the primary site access road and upon which a sit-down restaurant may be located.
"Retail Developer" shall have the meaning set forth in the Second Amendment to the DDA.
"RI Developer" shall have the meaning set forth in the Second Amendment to the DDA.
"Second Amendment" shall mean the Second Amendment to the DDA.
"Southern Pad" shall mean the portion of Parcel B (i.e., the Retail Property) located to the south
of the primary site access road upon which the drive-through retail use and other Retail Spaces
are proposed to be located.
2. Modification to Section 1.2.2 of the Original DDA.
Section 1.2.2 of the Original DDA is hereby deleted and replaced with the following:
"The "Project" consists of construction and installation of (a) two high-quality
"flag" hotels: The Marriott Residence Inn or a comparable hotel flag acceptable
to the City as described in Attachment No. 6 (Scope of Development) containing
approximately 140 rooms and the Fairfield Inn & Suites by Marriott or a
comparable hotel flag acceptable to the City as described in Attachment No. 6
(Scope of Development) containing approximately 140 rooms with
approximately 170,000 square feet of building area for the hotels, including a
set of accompanying amenities as defined and more fully described in the
Scope of Development, and (b) upon approval by the City of the Additional
Entitlements, the Amended Project Elements, including approximately 10,000 to
16,000 square feet of supporting retail and/or restaurant and conference space
(with one drive-through for a "Class A" retail use as part of such use) and
signage as permitted by the sign program approved by the City in its
Governmental Capacity. The Parties intend that the Project will function as the
centerpiece for the southern portion of the City bordering on and having
prominent visibility from the 55 Freeway. No more than one drive-through retail
use shall be permitted on the Property."
3. Modification to Section 1.3.1(c) of the Original DDA.
The following is added at the end of the paragraph below clause (c) of Section 1.3.1:
""Parcel A", "Parcel B" (including the Northern Pad and the Southern Pad) and
"Parcel "C" are each depicted on Attachment No. 3A to the Agreement."
4. Modification to Section 8 of the Original DDA.
(a) Section 8.3 of the Original DDA is hereby modified by adding the following at the
end thereof:
"8.3.7 Required Entitlements for Drive -Through and Other Retail Use.
Subsequent to approval by the City of the Entitlements described in Section
8.3.4, the Retail Developer, in conjunction with and with the approval of the
other Developer Owners and Olson, has proposed various changes to the
retail buildings comprising a portion of the Project and proposed to be
developed on Parcel B. Specifically, the Retail Developer, in conjunction
with and with the approval of the other Developer Owners and Olson, has
requested (a) a conditional use permit and Concept Plan and Design Review
approvals in order to accommodate one (1) drive-through "Class A" retail
use on Parcel B and to revise the Scope of Development to permit between
10,000 and 16,000 square feet of Retail Space and (b) an amendment to the
Sign Program to add an additional pylon sign and certain other modifications
(the "Additional Entitlements"). The Additional Entitlements shall be
processed by the City in its Governmental Capacity at the sole cost and
expense of the Retail Developer and shall be subject to all provisions of the
Agreement, including without limitation, Section 8.1.2 and Section 8.3,
governing approval of Entitlements. The Developer Owners and Olson
acknowledge that a traffic signal may be required by the City at the Project
entrance and that the Developer may, among other things, be required, as a
condition of approval of the Additional Entitlements, to pay one-third of the
cost of installation and maintenance of such traffic signal."
(b) Section 8.5 of the Original DDA is hereby modified by adding the following at the
end thereof:
"8.5.11 Amended Project Elements. In addition to design review in the
Governmental Capacity of the City, the Amended Project Elements shall be
subject to review and approval by the City in its Proprietary Capacity at the
sole cost and expense of the Developer in accordance with the requirements of
Section 8.5. of the Agreement. Upon (i) approval by the City of in its
Governmental Capacity of the Amended Entitlements as described in this
Article 8: (ii) approval by the City in its Proprietary Capacity of the Basic
Concept Plan for the Amended Project Elements and (iii) approval of
construction level drawings for the Amended Project Elements by the City in
its Governmental Capacity, then such approved plans and drawings shall be
deemed to be part of the "Approved Project Plans" (as defined in Section
8.5.7 of the Agreement) and subject to all requirements of the Agreement
governing Approved Project Plans."
5. Modification to Attachment No. 3 to the Original DDA (Lot Line Adjustment).
The document labeled "Attachment No. 3A" and attached to this Second Amendment is
hereby incorporated by reference into the Agreement as though set forth immediately
following Attachment No. 3.
6. Modification to Attachment No. 5 to the Original DDA (Schedule of Performance).
Items 5.1) and 5.E of the Schedule of Performance are hereby deleted and replaced with
the following:
"D.
RI Developer commences vertical
On or before March 5, 2013
construction on Parcel A (i.e., the RI Hotel
Property) and the FIS Developer commences
vertical construction on Parcel C (i.e., the
FIS Hotel Property)
E.
The Retail Developer commences vertical
On or before December 5, 2013
construction on the Southern Pad of Parcel B
F.
The Retail Developer commences vertical
On or before December 5, 2014
construction on the Northern Pad of Parcel B
G.
Completion of construction of (a) all
No later than eighteen (18) months
Infrastructure Improvements required by the
following issuance of the first
Agreement, including as generally described
building permit for Improvements
in Section 2.1.3 of the Scope of
on Parcel A or Parcel C.
Development and (b) the Vertical
Improvements on Parcel A and Parcel C
comprising two high quality "Class A" hotels
and accompanying amenities, as generally
described in the Scope of Development
Sections 2.1.1 and 2.1.2
H.
Completion of construction of retail
On or before December 5, 2014
Improvements on the Southern Pad
1.
Completion of construction of retail
On or before July 5, 2015
Improvements on the Northern Pad
7. Modification to Attachment No.6 to the Original DDA (Scope of Development).
(a) The first sentence of Section 2.1.1 of the Scope of Development is hereby deleted
and replaced with the following:
"2.1.1 Improvements. Developer shall complete the development of the
Vertical Improvements to consist of construction and installation of two high
quality "Class A" hotels and approximately 10,000 to 16,000 square feet of
Retail Space."
8. Modification to Attachment No. 13 (Prohibited Uses and Users)
(a) The following Prohibited Uses set forth on Attachment No. 13 are hereby modified
to read as follows:
"recreational vehicle or boat sales or rentals"
"drive-through retail uses e?ieept these at approved leeations as shewn on the
unless approved by the City as part of
the Amended Entitlements: provided that no more than one drive-through
retail use shall be permitted at any time."
"animal boarding, but not including overnight boarding of animals in
connection with the rendering of veterinarian services by an ......_, ved ",r...,._
9. Assumption of Obligations. Each of the Developer Owners hereby agrees for the
benefit of the City and Olson that it hereby does, effective as of the conveyance to it of a
Parcel (the "Conveyed Property"), assume and agree to be subject to all of the
obligations, conditions, limitations and restrictions to which Developer and/or the
Conveyed Property is subject by reason of the DDA, the Memorandum of DDA, the
Declaration and the Entitlements (the "DDA Documents") and to pay and perform all
obligations of Developer set forth in the DDA Documents that relate to the Conveyed
Property, including without limitation the following obligations: (i) the obligations,
conditions, limitations and restrictions to which Developer and/or the Conveyed Property
is subject under or by reason of the Declaration and the DDA, including without
limitation the provisions of the release set forth in Section 4.4.3 of the DDA and the
indemnities set forth in Article 10 of the DDA; (ii) the obligation to construct the
Improvements to be constructed on the Conveyed Property in accordance with the Scope
of Development and within the time period specified in the Schedule of Performance; and
(iii) the obligation to pay all sums required to be paid by Developer under the DDA
Documents in connection with the ownership and./or development of the Conveyed
Property, to the extent such amounts have not been paid as of the date of the conveyance
by the City to Developer Owner of the Conveyed Property. Further, each Developer
Owner agrees that it shall remain fully responsible to perform and satisfy all of the
obligations and liabilities assumed by it regardless of any of the facts or conditions
described in Section 4.4.2 of the DDA. Olson acknowledges and agrees that the
foregoing assumption by the Developer Owners does not release it from its obligations
under the DDA Documents and Olson agrees that Developer is not released form, and
remains fully liable, for all obligations and liabilities accruing under the DDA
Documents, whether arising or due before or after the date of conveyance of the
Conveyed Property.
10. Miscellaneous.
(a) Agreement Ratified. Except as specifically amended or modified herein, each and
every term, covenant, and condition of the Original DDA as amended is hereby
ratified and shall remain in full force and effect. Each and every reference to the
"Agreement" in the Original DDA shall be deemed to refer to the Original DDA as
amended by this Second Amendment.
(b) Governing Law. This instrument shall be interpreted and construed in accordance
with the laws of the State of California.
(c) Binding Agreement. This Second Amendment shall be binding upon and inure to
the benefit of the Parties hereto and their respective heirs, representatives,
successors and permitted assigns.
(d) Counterparts. This Second Amendment may be executed in two or more
counterparts, each of which .shall be deemed an original, but all of which together
shall constitute one and the same document.
(e) City Cost Reimbursement. Developer shall reimburse the City for all costs and
expenses, including attorneys' fees, third party fees and staff costs, incurred by the
City in connection with the preparation, processing and approval of the Basic
Concept Plan, this Second Amendment, the amendment to the Declaration and the
Additional Entitlements.
IN WITNESS WHEREOF, the City and the Developer have executed this Second Amendment
as of the Second Amendment Effective Date.
(signatures on following page)
Dated:
ATTEST
By:
Dated:
APPROVED AS TO FORM
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
M
Amy E. Freilich, Special Counsel
Date:
"City"
City of Tustin, California
M
Jeffrey Parker, City Manager
(signatures continued on following page}
Olson Real Estate Group, Inc.
(dba R.D. Olson Development)
M
Robert D. Olson
TUSTIN GATEWAY FIS SPE, LLC,
a California limited liability company
By: TUSTIN GATEWAY FIS, LLC,
a California limited liability company,
its sole member
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company, its
sole member
By: OLSON REAL ESTATE GROUP, INC,
a California corporation,
its Manager
In
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC.,
a California corporation, its Manager
La
Name: Joseph Martelli
Title: President
(signatures continued on following page)
TUSTIN GATEWAY RI SPE, LLC,
a California limited liability company
By: TUSTIN GATEWAY RI, LLC,
a California limited liability company,
its sole member
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company, its
sole member
By: OLSON REAL ESTATE GROUP, INC.,
a California corporation,
its Manager
IN
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC.,
a California corporation,
its Manager
UA
Name: Joseph Martelli
Title: President
{signatures continued on following page)
TUSTIN RETAIL SPE, LLC,
a California limited liability company,
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company,
its sole member
By: OLSON REAL ESTATE GROUP, INC,
a California corporation, its Manager
M
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC, a California
corporation, its Manager
2
Name: Joseph Martelli
Title: President
CITY OF TUSTIN OFFICIAL
BUSINESS REQUEST
DOCUMENT TO BE
RECORDED AND TO BE
EXEMPT FROM RECORDING
FEES PER GOVERNMENT
CODE 6103 AND 27383.
Recording requested by and
when recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
MEMORANDUM OF AMENDMENT NO. 2 TO DISPOSITION AND DEVELOPMENT
AGREEMENT 2011-01 (TUSTIN GATEWAY PROJECT)
This MEMORANDUM OF AMENDMENT NO. 2 TO DISPOSITION AND
DEVELOPMENT AGREEMENT ("Memorandum of Amended DDA") is made as of
April 16, 2013 (the "Second Amendment Effective Date") by and among the CITY OF
TUSTIN, a municipal corporation of the State of California (the "City"), Olson Real Estate
Group Inc., dba R.D OLSON DEVELOPMENT, a California Corporation ("Olson'),
TUSTIN GATEWAY RI SPE, LLC, a California limited liability company ("RI
Developer"), TUSTIN GATEWAY FIS SPE, LLC, a California limited liability
company("FIS Developer"), and TUSTIN RETAIL SPE, LLC, a California limited liability
company ("Retail Developer"; collectively with the RI Developer and the FIS Developer,
the "Developer Owners," and collectively with Olson, "Developer"). The City, Olson and
the Developer Owners are sometimes referred to herein individually as a "Party" and
collectively as the "Parties." Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the DDA.
RECITALS
A. The City and Olson entered into that certain Tustin Legacy Disposition and
Development Agreement 2011-01 (Tustin Gateway Project) dated as of July 5, 2011 as amended
by that certain Amendment No. 1 to Disposition and Development Agreement 2011-01 (Tustin
Gateway Project) dated December 6, 2011 (collectively, the "Original DDA"), pursuant to
which, among other things, the City agreed to sell, and Olson agreed to purchase, the Property
(defined below) and Olson and the City agreed to a schedule of performance and a scope of
development for the Project to be constructed by Olson upon the Property. Initially capitalized
terms not defined herein shall have the respective meanings assigned to such terms in the
Original DDA.
B. The Original DDA was memorialized in that certain Memorandum of Disposition
and Development Agreement 2011-01 (Tustin Gateway Project) executed by the City and the
Development Owners on July 25, 2012 and recorded on July 31, 2012 in the Official Records of
Orange County, California ("Official Records"), as Instrument No. 2012000436476 (the
"Original Memorandum of DDA"). Approximately concurrently therewith, the City executed
and recorded against the Property that certain Declaration of Reciprocal Easements, Covenants,
Conditions, and Restrictions Including Environmental Restrictions pursuant to Civil Code
Section 1471 executed by the City on July 25, 2012 and recorded in the Official Records on July
31, 2012 as Instrument No. 2012000436469, as subsequently amended by that certain First
Amendment to Declaration of Reciprocal Easements, Covenants, Conditions, and Restrictions
Including Environmental Restrictions pursuant to Civil Code Section 1471 by and among the
Parties dated of even date herewith and recorded in the Official Records immediately following
the recordation of this Memorandum of Amended DDA (as amended, the "Declaration") and
thereafter conveyed a portion of the Property to each of the Developer Owners as further
described below..
C. Although Olson assigned its rights as "Developer" under the DDA (including its
rights to acquire and develop the Property) to the Developer Owners, each of which is a
Developer Affiliate, under the terms of the DDA, Olson was not released by the City from its
obligations under the DDA and remains fully liable for all obligations and liabilities of
Developer under the DDA, the Declaration and the Entitlements.
D. The Parties have further amended the Original DDA pursuant to that certain
Amendment No. 2 to Disposition and Development Agreement 2011-01 (Tustin Gateway
Project) dated April 16, 2013 (the "Second Amendment'; and together with the Original DDA,
the "DDA") and have entered into this Memorandum of Amended DDA to memorialize the
execution by the Parties of the Second Amendment.
1. Property Affected by the DDA. The "Development Parcels" affected by the
DDA consists of the following properties (also denominated in the Original DDA as Parcel A,
Parcel B and Parcel C, respectively) as legally described in the Original Memorandum of DDA:
(a) The "RI Hotel Property" consisting of approximately 3.43 acres of land legally
described in and conveyed by the City to the RI Developer pursuant to that certain Quitclaim
Deed dated July 25, 2012 and recorded in the Official Records on July 31, 2012 as Instrument
No. 2012000436470 (the "RI Hotel Quitclaim Deed"),
(b) The "Retail Property" consisting of approximately 1.81 acres of land legally
described in and conveyed by the City to the Retail Developer pursuant to that certain Quitclaim
Deed dated July 25, 2012 and recorded in the Official Records on July 31, 2012 as Instrument
No. 2012000436472 (the "Retail Property Quitclaim Deed"), and
(c) The "FIS Hotel Property" consisting of approximately 2.29 acres of land, legally
described in and conveyed by the City to the FIS Developer pursuant to that certain Quitclaim
Deed dated July 25, 2012 and recorded in the Official Records on July 31, 2012 as Instrument
No. 2012000436471 (the "FIS Hotel Quitclaim Deed'; and collectively with the RI Hotel
Quitclaim Deed and the Retail Property Quitclaim Deed, the "Quitclaim Deeds");
but expressly reserving from each such Quitclaim Deed: (i) certain water and oil and mineral
rights explicitly reserved to the City pursuant to such Quitclaim Deed and (ii) street and public
utility rights-of-way and any of the land to be dedicated by the Developer to and/or reserved by
the City for any purpose. The Parcels, excluding the foregoing rights and interests and such
other rights and interests explicitly reserved to the City in the Quitclaim Deeds, and together with
certain improvements and personal property as more fully described in the DDA and certain
easement rights more fully described in the Declaration, are more specifically described in the
DDA as the "Property." The DDA also affects certain property referred to therein as the Water
Well Parcel, as legally described in the Original Memorandum of DDA, which is owned by the
City.
2. Effect of DDA. The DDA, the Original Memorandum of DDA, this
Memorandum of Amended DDA and all covenants, conditions, restrictions and obligations set
forth therein, in the Quitclaim Deeds and in the Declaration shall be binding on the Property and
shall govern the use and development of the Property by the owners thereof and their respective
successors and assigns owning all or any portion thereof for the benefit of the City and the Water
Well Parcel and the successors and assigns of the City owning all or any portion thereof.
3. Effect of Second Amendment. The Second Amendment provide certain
modifications to the definition of the Project and to the Scope of Development and Schedule of
Performance attached to the Original DDA and impose certain further obligations, agreements,
covenants, conditions and restrictions with respect to the Property and the Developer's
acquisition, entitlement development, use, operation and ultimate disposition thereof, that run
with the Property.
4. Effect on Mortgages; Right To Encumber. Notwithstanding any other
provision of the DDA, each Developer Owner shall have the right to encumber the fee title to
portions of the Property owned by it with a single Permitted Mortgage made by a Permitted
Mortgagee; provided that such Permitted Mortgage and such Permitted Mortgagee are in
compliance with the terms, conditions and limitations set forth in Articles 2 and Article 16 of the
DDA. All Mortgages shall be subject and subordinate to the DDA, including, without limitation,
the City's Right of Reversion and Right of Purchase contained therein.
5. DDA and Memorandum of DDA Run With the Land. The DDA and this
Memorandum of Amended DDA, including, without limitation, the provisions described above,
and all other obligations, agreements, covenants, conditions and restrictions set forth in the DDA
and this Memorandum of Amended DDA are hereby agreed to by the Developer and the City to
be covenants running with the land and enforceable as equitable servitudes against the Property
and are hereby declared to be and shall be binding upon the Property and the Developer and their
respective successors and assigns (who may own all or any portion of the Property) for the
benefit of the Water Well Parcel and the City and the successors and assigns of the City owning
all or any portion of the Water Well Parcel.
6. Public Documents. The documents constituting the DDA are public documents
and may be reviewed at the official offices of the City.
7. Interpretation; Notice. This Memorandum of Amended DDA is prepared for
recordation and notice purposes only and in no way modifies the terms, conditions, provisions
and covenants of the DDA. In the event of any inconsistency between terms, conditions,
provisions and covenants of this Memorandum of Amended DDA and the DDA, the terms,
conditions, provisions and covenants of the DDA shall prevail.
8. Attachments. The Attachments attached to this Memorandum of Amended DDA
are hereby incorporated by this reference into this Memorandum of Amended DDA as though
fully set forth in this Section.
IN WITNESS WHEREOF. the Parties have executed this Memorandum of Amended
DDA as of the Second Amendment Effective Date.
"CITY"
CITY OF TUSTIN, CALIFORNIA
By:
ATTEST: Dat
Pamela Stoker
City Clerk
APPROVED AS TO FORM
By:
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
By:
Amy E. Freilich, Special Counsel
Jeffrey Parker
City Manager
(signatures continue on following page}
Olson Real Estate Group, Inc.
(dba R.D. Olson Development)
A
Robert D. Olson
TUSTIN GATEWAY FIS SPE, LLC,
a California limited liability company
By: TUSTIN GATEWAY FIS, LLC,
a California limited liability company,
its sole member
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company, its sole
member
By: OLSON REAL ESTATE GROUP, INC,
a California corporation.
its Manager
0
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC.,
a California corporation, its Manager
22
Name: Joseph Martelli
Title: President
{signatures continued on following page}
TUSTIN GATEWAY RI SPE, LLC,
a California limited liability company
By: TUSTIN GATEWAY RI, LLC,
a California limited liability company,
its sole member
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company, its sole
member
By: OLSON REAL ESTATE GROUP, INC.,
a California corporation,
its Manager
M
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC.,
a California corporation,
its Manager
Name: Joseph Martelli
Title: President
(signatures continued on following page}
TUSTIN RETAIL SPE, LLC,
a California limited liability company,
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company,
its sole member
By: OLSON REAL ESTATE GROUP, INC,
a California corporation, its Manager
By:
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC,
a California corporation, its Manager
Name: Joseph Martelli
Title: President
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On before me, ,
e ere nse mean i e o eOfficer
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
ure of Miary PuBlic
(SEAL)
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On , before me, ,
Me Here InSert NaMe2nde i er
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
mgna ure o E IN o ary runue
(SEAL)
Exhibits to Memorandum of DDA
Exhibit No. 1 Legal Description of Water Well Parcel and Parcel A,
Parcel B and Parcel C
Exhibit No. 2 City Owned Parcels
DECLARATION OF RECIPROCAL EASEMENTS, COVENANTS, CONDITIONS
AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTIONS
Recording Requested By
And When Recorded, Return To:
Tustin City Hall
300 Centennial Way
Tustin, CA 92780
Attention: Assistant City Manager
Space Above For Recorder's Use Only
FIRST AMENDMENT TO DECLARATION OF RECIPROCAL
EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS,
INCLUDING ENVIRONMENTAL RESTRICTIONS PURSUANT TO
CIVIL CODE SECTION 1471
(Tustin, California)
This First Amendment to Declaration of Reciprocal Easements, Covenants, Conditions and
Restrictions, Including Environmental Restrictions ("Amended Declaration") is made as of
April 16, 2013 (the "First Amendment Effective Date") by and among the CITY OF TUSTIN,
a municipal corporation of the State of California (the "City" or "Declarant"), Olson Real Estate
Group Inc., dba R.D OLSON DEVELOPMENT, a California Corporation ("Olson"), TUSTIN
GATEWAY RI SPE, LLC, a California limited liability company ("RI Developer"), TUSTIN
GATEWAY FIS SPE, LLC, a California limited liability company("FIS Developer"), and
TUSTIN RETAIL SPE, LLC, a California limited liability company ("Retail Developer';
collectively with the RI Developer and the FIS Developer, the "Developer Owners", and
collectively with Olson, "Developer") in order to amend that certain Declaration of Reciprocal
Easements, Covenants, Conditions and Restrictions, including Environmental Restrictions
pursuant to Civil Code section 1471 executed by the City on July 25, 2012 and recorded in the
Official Records of Orange County California on July 31, 2012 as Instrument No.
2012000436469 (the "Original Declaration", and, as amended by this Amended Declaration,
the "Declaration"). Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Original Declaration.
RECITALS
A. The City is the owner of that certain real property located in the City of Tustin,
County of Orange, California referred to in the Original Declaration as the "Water Well
Parcel", and legally described therein and was, as of the Declaration Effective Date, the owner
of certain additional real property referred to in the Declaration as Parcel A, Parcel B and Parcel
C.
B. Subsequent to the execution of the Original Declaration, the City conveyed by
quitclaim deed, all of its right, title and interest in and to Parcel A to the RI Developer, in and to
Parcel B to the Retail Developer and, in and to Parcel C to the FIS Developer pursuant to the
terms of the DDA.
C. Retail Developer has requested certain amendments to the DDA and to the Original
Declaration including (a) to modify the definition of the Project in the DDA and to the Scope of
Development and Schedule of Performance attached to the DDA and (b) to release certain
restrictions on the placement of a drive-through retail establishment on Parcel B as set forth in
the DDA and the Original Declaration.
D. In order to effectuate the requested modifications, the City and Developer have
concurrently entered into a Second Amendment to the DDA and have agreed to modify the
Original Declaration as set forth below:
NOW, THEREFORE the City and the Developer hereby declare that the covenants, conditions
and restrictions set forth below shall be effective in the manner and subject to the terms and
conditions of this Declaration. All of the covenants and restrictions set forth herein shall run
with the land, shall be enforceable as equitable servitudes, and shall be binding upon and for the
benefit of the Development Parcels and all parties having or acquiring any right, title or interest
in the Development Parcels, the Buildings and/or the Water Well Facilities.
Section 1. Modification to Exhibit G (Class A Uses and Prohibited Uses). The following
Prohibited Uses set forth on Exhibit G to the Declaration are hereby modified to read as follows:
"I animal boarding, but not including overnight boarding of animals in
connection with the rendering of veterinarian services
"9. recreational vehicle or boat sales or rentals"
"12. "drive-through" re it uses except these at a ,.d ,',.bons as s,.,..-.. aft th
n_,.r_..:..,.i.. PIAN .._ "-A r.Bti emei4- unless approved by the City in it
permitted at any time."
Section 2. Miscellaneous.
(a) Agreement Ratified. Except as specifically amended or modified herein, each and
every term, covenant, and condition of the Original Declaration as amended is
hereby ratified and shall remain in full force and effect. Each and every reference
to the "Declaration" in the Original Declaration shall be deemed to refer to the
Original Declaration as amended by this Amended Declaration.
(b) Governing Law. This instrument shall be interpreted and construed in accordance
with the laws of the State of California.
(c) Binding Agreement. This Amended Declaration shall be binding upon and inure
to the benefit of the City and the Developer and their respective heirs,
representatives, successors and permitted assigns.
(d) Counterparts. This Amended Declaration may be executed in two or more
counterparts, each of which .shall be deemed an original, but all of which together
shall constitute one and the same document.
IN WITNESS WHEREOF, the City and the Developer have signed this Amended Declaration as
of the Fust Amendment Effective Date.
Executed as of the date first written above.
"DECLARANT"
CITY OF TUSTIN, CALIFORNIA
By:
Jeffrey Parker
City Manager
ATTEST:
Pamela Stoker
City Clerk
APPROVED AS TO FORM
By:
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
By:
Amy E. Freilich, Special Counsel
(signatures continued on following page)
Olson Real Estate Group, Inc.
(dba R.D. Olson Development)
M
Robert D. Olson
TUSTIN GATEWAY FIS SPE, LLC,
a California limited liability company
By: TUSTIN GATEWAY FIS, LLC,
a California limited liability company,
its sole member
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company, its sole
member
By: OLSON REAL ESTATE GROUP, INC,
a California corporation,
its Manager
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC.,
a California corporation, its Manager
Name: Joseph Martelli
Title: President
(signatures continued on following page)
TUSTIN GATEWAY RI SPE, LLC,
a California limited liability company
By: TUSTIN GATEWAY RI, LLC,
a California limited liability company,
its sole member
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company, its sole
member
By: OLSON REAL ESTATE GROUP, INC.,
a California corporation,
its Manager
Un
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC.,
a California corporation,
its Manager
By:
Name: Joseph Martelli
Title: President
(signatures continued on fallowing page}
TUSTIN RETAIL SPE, LLC,
a California limited liability company,
By: TUSTIN GATEWAY SPE, LLC
a California limited liability company,
its sole member
By: OLSON REAL ESTATE GROUP, INC, a
California corporation, its Manager
0
Name: Robert D. Olson
Title: President
By: JOSEPH MARTELLI REAL ESTATE
INVESTMENTS, INC,
a California corporation, its Manager
Name: Joseph Martelli
Title: President
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On before me,
Date Here Insert Name and Title of the Officer
personally appeared
Name(s) ofSigner(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.
Signature:
(SEAL)
Signature of Notary Public