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HomeMy WebLinkAbout02 PC REPORTG1�.A -PIP, AG NDA R PORT MEETING DATE: SEPTEMBER 9, 2014 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT ITEM #2 SUBJECT: DEVELOPMENT AGREEMENT (DA) 2014 -001 (FIFTH AMENDMENT TO EAST TUSTIN DEVELOPMENT AGREEMENT) APPLICANTS: PETER K. PIRZADEH, P.E. PIRZADEH & ASSOCIATES, INC. 30 EXECUTIVE PARK, SUITE 270 IRVINE, CA 92614 CITY OF TUSTIN 300 CENTENNIAL WAY TUSTIN, CA 92780 PROPERTY OWNER: THE IRVINE COMPANY LLC 550 NEWPORT CENTER DRIVE NEWPORT BEACH, CA 92660 LOCATION: 2982 -3030 EL CAMINO REAL GENERAL PLAN: PLANNED COMMUNITY COMMERCIAUBUSINESS ZONING: EAST TUSTIN SPECIFIC PLAN (SP 8) - PLANNED COMMUNITY MIXED -USE DESIGNATION EXISTING LAND USE: COMMERCIAL SHOPPING CENTER ENVIRONMENTAL: THIS PROJECT HAS BEEN DETERMINED TO BE EXEMPT PURSUANT TO CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) SECTION 15061 (13)(3) IN THAT CEQA APPLIES ONLY TO PROJECTS WHICH HAVE THE POTENTIAL FOR CAUSING A SIGNIFICANT EFFECT ON THE ENVIRONMENT. IF ADOPTED, PROPOSED DA 2014 -001 WOULD ALLOW FOR THE CONTINUATION OF AN ASSEMBLY USE (COMMUNITY FACILITIES WITHIN A FORMER THEATER) AND ALLOW DEVELOPMENT RIGHTS TO BE TRANSFERRED TO OTHER POTENTIAL IN -FILL DEVELOPMENT PROJECT SITES WHICH WOULD BE SUBJECT TO SEPARATE CEQA REVIEW. THE DA HAS NO POSSIBILITY FOR CAUSING A SIGNIFICANT EFFECT ON THE ENVIRONMENT; THEREFORE, THE PROJECT IS NOT SUBJECT TO CEQA. Planning Commission Report DA 2014 -001 September 9, 2014 Page 2 REQUEST: DEVELOPMENT AGREEMENT (DA) 2014 -001, AN AMENDMENT TO THE EAST TUSTIN DEVELOPMENT AGREEMENT (ETDA) TO ALLOW THE CONVERSION OF UP TO 23,445 SQUARE FEET OF THE FORMER EDWARDS THEATER LOCATED AT 2982 -3030 EL CAMINO REAL TO A CITY OF TUSTIN COMMUNITY CENTER AND TO ALLOW THE TRANSFER OF DEVELOPMENT RIGHTS OF THE THEATER SPACE TO OTHER POTENTIAL DEVELOPMENT SITES WITHIN THE TUSTIN MARKET PLACE COMMERCIAL CENTER. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4266, recommending that the City Council approve DA 2014 -001, the Fifth Amendment to the ETDA to allow the conversion of up to 23,445 square feet of the former Edwards Theater located at 2982 -3030 El Camino Real to a City of Tustin Community Center and to allow the transfer of development rights of the theater space to other potential development sites within The Tustin Market Place commercial center. APPROVAL AUTHORITY: Pursuant to Tustin City Code (TCC) Section 9607, the Planning Commission shall consider the DA and make a recommendation thereon to the City Council. The Planning Commission shall forward its recommendation to the City Council within thirty (30) days of the time specified for the public hearing. Pursuant to TCC Section 9613, after the City Council completes the public hearing and considers the recommendation of the Planning Commission, the City Council may accept, modify or disapprove the DA. Pursuant to TCC Section 9614, the DA shall be approved by the adoption of an ordinance. BACKGROUND AND DISCUSSION: To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the California Legislature adopted the DA Statute of the Government Code. Pursuant to the Statute, the City may enter into an agreement with any person having a legal or equitable interest in real property and to provide for the development of such property and to establish certain development rights therein. The ETDA was originally adopted by the City Council on November 3, 1986, as a required element of the East Tustin Specific Plan. To date, the ETDA has been amended four (4) times. Under the ETDA (as amended), the Tustin portion of The Market Place commercial center, the Tustin Ranch Plaza commercial center, and the commercial center at Tustin Ranch Road and Bryan Avenue (see Figure 1) have been approved for the development of 1,143,000 square feet of retail floor area, 1,129,032 square feet of which has been developed. 13,968 square feet of retail floor area remains available for development, 3,162 of which is available to the Tustin portion of The Market Place, and 10,806 square feet of which is available to the other two (2) commercial centers. The Tustin portion of The Market Place has been developed as a Planning Commission Report DA 2014 -001 September 9, 2014 Page 3 retail /commercial center entitled for up to 736,575 square feet of floor area, and retail improvements comprising 733,413 square feet of floor area have been constructed at the Property. A theater complex was developed within the Tustin portion of The Market Place, but was recently vacated. A portion of this theater complex has been reconfigured to provide Community Facilities for use by the public. Pursuant to the provisions of the East Tustin Specific Plan, the Community Development Director has determined that the Community Facilities are a continuation of a pre- existing assembly use, would operate similarly to other allowed assembly uses, and are a permitted use in the Mixed -Use land use designation of the East Tustin Specific Plan. Figure 1 — ETDA Commercial Centers Planning Commission Report DA 2014 -001 September 9, 2014 Page 4 Development Agreement 2014 -001 DA 2014 -001 (Fifth Amendment to the ETDA) would allow the conversion of up to 23,445 square feet of the former theater complex to Community Facilities (City of Tustin Community Center at The Market Place) available for use by the public and would allow the transfer of development rights of the theater space to other potential development sites within the Tustin portion of The Market Place commercial center. DA 2014 -001 (Attachment B) delineates the terms, the appropriate uses of the Community Facilities, the responsibilities of the City of Tustin and The Irvine Company LLC, the costs to use the Community Facilities, and other general provisions and requirements. The substantive terms of the agreement are as follows: • Allowed activities would include City sponsored meetings and events and activities allowed in other community facilities, such as parties, receptions, ceremonies, seminars, non- commercial classes, dances, performances, etc. • The City would program the facility and provide The Irvine Company with a written weekly schedule. • The City would establish the hours of use, other than 7 -9 a.m. and 4 -6 p.m. (off peak hours only). • The City would establish the rules and regulations. • The Irvine Company would maintain the facility and be reimbursed for maintenance costs through hourly usage fees and administrative fees charged for the use of the facility. • Twelve (12) City events per year, and reasonable number of smaller City meetings not requiring heating or air conditioning, would be exempt from use fees, if the City handles the set -up and clean -up. • When scheduling events, the City would have the option to require The Irvine Company to set -up and clean -up and have the user pay fees that will reimburse The Irvine Company for such work, or the City would obligate itself to set -up and clean -up. • The Irvine Company would retain all keys to the facility and have control over access. • Third parties using the facility would be required to obtain at least one million dollars in insurance that names the City and The Irvine Company as additional insureds. • The Irvine Company would be able to develop other sites (23,622 additional square feet in place of the theater) in the Tustin portion of The Market Place. • New development would be subject to site development review, building permits, any applicable conditional use permits, etc., and could be disapproved if localized impacts are not mitigated by project design features. Planning Commission Report DA 2014 -001 September 9, 2014 Page 5 • The Irvine Company would no longer be able to charge the owners of the other Tustin Ranch commercial centers fees for further developing those centers, provided the City approves the new development through the normal entitlement process. A more in -depth discussion of the use of the Community Facilities, the development of other sites within the Tustin portion of The Market Place, and the waiver of restrictions on other commercial sites is provided below. Community Facilities The types of uses allowed in the Community Facilities would include: official City sponsored meetings, activities, functions and events, as well as activities allowed by the City in other community facilities such as family parties, wedding receptions, quinceneras, memorial services, banquets /luncheons, award ceremonies, craft fairs, health fairs, expos, meetings, trainings /seminars /workshops, presentations, non - commercial classes, dances, community gatherings, youth /teen programs, fundraisers, movie nights, musical performances, lecture series, educational programs, conferences and childhood development programs. Uses that are specifically prohibited are listed in Exhibit E of DA 2014 -001. It should be noted that certain training and educational facilities are prohibited pursuant to existing lease agreements, but the types of educational activities allowed in the City's other community facilities could take place at the proposed Community Facilities. The City would program and establish the hours of use for the Community Facilities which will be during hours other than 7 am to 9 am and 4 pm to 6 pm Monday through Friday (off peak), and establish and enforce non - discriminatory rules and regulations concerning the use of the Community Facilities. The use of the Community Facilities will be limited to off peak hours to ensure that there are no parking impacts to the Tustin portion of The Market Place commercial center if and when the transfer of development rights is exercised and additional potential development sites are completed. The attached letter (Attachment C) was prepared to demonstrate that the number of parking spaces provided will accommodate parking demand. The property owner, The Irvine Company LLC, would be responsible for the ongoing maintenance of the Community Facilities, and would be reimbursed for its costs through fees charged by the City for the use of the facilities. A maximum of twelve (12) official City sponsored events per calendar year and a reasonable number of informal, short -term City events such as small staff meetings that do not require heating or air conditioning would be exempt from the fees, provided the City handles the set -up and clean -up of the facility. Development of Other Sites Within The Market Place Pursuant to DA 2014 -001, the dedication of 23,445 square feet of existing floor area for community use to the City of Tustin for its sole use and programming will enable The Irvine Company, LLC to develop other sites within the Tustin portion of The Market Place commercial center. However, site development review(s), grading plan(s), building permit(s), assessment(s) to confirm compliance with entitlement approvals, and any applicable conditional use permits would be required for the new development. Further, the City would retain the right to Planning Commission Report DA 2014001 September 9, 2014 Page 6 disapprove an application for the new development if the localized impacts of the additional floor area are not mitigated by project design features. Waiver of Land Use Restrictions Existing land use restrictions limit the amount of commercial square footage that may be developed at the two other commercial centers within Tustin Ranch, with the option to pay additional fees for excess square footage. This restriction has hampered the expansion of the other centers within Tustin Ranch, unless these significant fees are paid to The Irvine Company. DA 2014 -001 would require The Irvine Company LLC to waive its rights with respect to the development of the other centers within Tustin Ranch, including the ability to charge the owners of the other centers any fees for developing the other centers, provided that the additional development at the other centers is approved by the City through the normal entitlement and development process. Section 3.3 of DA 2014 -001 addresses a limitation to the modification of the existing land use restrictions (Restrictive Declarations), which staff believes is unnecessary and recommends that Section 3.3 be deleted from DA 2014 -001. DA 2014 -001 will ensure the implementation of the East Tustin Specific Plan, eliminate uncertainty in planning, provide for the orderly development of the Tustin portion of The Market Place commercial center, allow the installation of necessary and desirable improvements, provide a venue for public and private events, generally serve the public interest within the City and the surrounding region, and comply with the TCC. a Environmental Review This project has been determined to be exempt pursuant to CEQA Section 15061(b)(3) in that CEQA applies only to projects which have the potential for causing a significant effect on the environment. If adopted, proposed DA 2014 -001 would allow for the continuation of an assembly use (Community Facilities within a former theater) and allow development rights to be transferred to other potential in -fill development project sites which would be subject to separate CEQA review. The DA has no possibility for causing a significant effect on the environment; therefore, the project is not subject to CEQA. FINDINGS: A decision to approve DA 2014 -001 may be supported by the following findings: 1. DA 2014 -001 is consistent with the objectives, policies, general land uses, and programs specified in the General Plan and East Tustin Specific Plan in that the project is consistent with Tustin General Plan Land Use Element Policies 9.1, 9.2, and 9.3, and would further the goals and objectives of the City and the Tustin portion of The Market Place commercial center by providing for orderly development envisioned at the project site, as follows: Policy 9.1: Ensure the compatibility of development in East Tustin adjacent to existing developed areas. Planning Commission Report DA 2014 -001 September 9, 2014 Page 7 Policy 9.2: Provide for supporting land uses in East Tustin, including neighborhood commercial centers, park and recreational facilities, and schools, to serve the residential community. Policy 9.3: Continue development phasing which provides incremental growth that is coordinated with the existing adjacent development, infrastructure and market opportunities 2. DA 2014 -001 is consistent with the East Tustin Specific Plan. Any future development and uses within the Tustin portion of The Market Place commercial center will be further analyzed at the time of development proposals for consistency with the East Tustin Specific Plan. 3. DA 2014 -001 is in conformance with the public necessity, public convenience, general welfare, good land use practices, and the orderly development of property, in that the establishment of Community Facilities within the former theater space will provide a venue that is available to the public for private and public events; and, allowing the transfer of development rights to other potential development sites would allow for more efficient and rational planning of the Tustin portion of The Market Place commercial center pursuant to the East Tustin Specific Plan. 4. An environmental analysis has been conducted and determined that there will not be any detrimental effect to the health, safety, and welfare with the implementation of DA 2014 -001 in that the Community Facilities will be used during off peak hours, and future potential in -fill development project sites would be subject to separate review. In addition, DA 2014 -001 complies with all applicable Federal, State, and Local rules and regulations. 5. DA 2014 -001 will have a positive fiscal impact on the City in that it will provide Community Facilities to the City and allow for potential development that would provide sales tax and property tax revenue to the City. CONCLUSION: Proposed DA 2014 -001 is consistent with the East Tustin Specific Plan and the General Plan and would provide facilities for public use while allowing for a transfer of development rights. Accordingly, staff recommends that the Planning Commission recommend that the City Council approve DA 2014 -001. 1:� 1&4e,� 6c� Ail L Scott Reekstin Elizabeth A. Binsack Principal Planner Director of Community Development Attachments: A. Location Map B. Development Agreement 2014 -001 C. Parking Analysis D. Planning Commission Resolution No. 4266 Draft Ordinance No. 1449 ATTACHMENT A OCATION MAP LOCATION MAP DA 2014 -001 2982 -3030 EL CAMINO REAL y{ ty .. �r ATTACHMENT B DEVELOPMENT AGREEMENT 2014 -001 DEVELOPMENT AGREEMENT - 2014 -001 THIS DEVELOPMENT AGREEMENT 2014 -001 is entered into by the CITY OF TUSTIN, a California municipal corporation ("CITY'% and THE IRVINE COMPANY LLC, a Delaware limited liability company ( "OWNER'S, to be effective as of the "Effective Date" (as defined in Section 1 below). CITY and OWNER are collectively referred to herein as the "Parties" and individually as a "Party". RECITALS A. OWNER is the owner of the "Property" (as defined in Section 1 below). B. The Property and the "Other Centers" (as defined in Section 1 below) are subject to the East Tustin Development Agreement, as amended. C. Under the East Tustin Development Agreement (as amended), the Property and the Other Centers have been approved for the development of 1,143,000 square feet of retail floor area, 1,129,032 square feet of which has been developed as of the Effective Date. As of the Effective Date, 13,968 square feet of retail floor area remains available for development, 10,806 square feet of which is available to the Other Centers and 3,162 of which is available to the Property. D. The Property has been developed as a retail /commercial center entitled for up to 736,575 square feet of floor area under the East Tustin Development Agreement (as amended) and the other "Existing Entitlement Approvals" (as defined in Section 1 below), and retail improvements comprising 733,413 square feet of floor area have been constructed at the Property as of the Effective Date. E. A portion of the Property has been developed as a theater complex which is now vacant. A portion of such theater complex will become "Community Facilities" (as defined in Section 1 below). F. To enable OWNER to redevelop portions of Property without exceeding the Maximum Floor Area, OWNER wishes to dedicate the Community Facilities to public use and therefore remove the floor area of the Community Facilities from the computation of Maximum Floor Area. AGREEMENT 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 sufficiency of which is 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: SDH\ 30209 -0429\ 469207.13 8/26/2014 -1- 1.1.1 "Agreement" means this Development Agreement 2014 -001. 1.1.2 "Community Facilities" means that portion of the former Regal Edwards Theater space at the Property which is generally depicted on Exhibit "A" attached hereto. The Community Facilities will be used for Community Uses. The Community Facilities may also be referred to as the City of Tustin Community Center at The Market Place. 1.1.3 "Community Facilities Floor Area" means 23,622 square feet consisting of approximately 23,445 square feet of floor area of the Community Facilities and approximately 177 square feet of floor area of the management space within the former theater complex which is allocated for management services associated with the Community Facilities. 1.1.4 "Community Uses" means official CITY sponsored meetings, activities, functions and events, as well as activities allowed by the City in other community facilities as such family parties (i.e. baptisms, birthdays, anniversaries), wedding receptions, quinceaneras, memorial services, banquets /luncheons, award ceremonies (i.e. eagle scout), craft fairs, health fairs, expos (i.e. travel, school assembly), meetings of 20+ people, trainings /seminars /workshops, presentations, non - commercial classes Oazzercise, fitness, youth martial arts), dances (teen, disabled), community gatherings, youth/teen programs, fundraisers, movie nights, musical performances, lecture series, educational programs, conferences and childhood development programs. 1.1.5 "Effective Date" means the date on which this Agreement has been fully executed by the CITY and OWNER. 1.1.6 "Existing Entitlement Approvals" means all existing land use approvals and entitlements, including all conditions of approvals, legally required by CITY or any other governmental authority as a condition of subdivision of the Property, development of the Property, and construction of improvements on the Property, including, without limitation, the East Tustin Development Agreement, as amended. 1.1.7 "Maximum Floor Area" means 736,575 square feet of floor area. 1.1.8 "Other Centers" means the commercial /retail centers described and /or depicted in Exhibit "B" hereto. 1.1.9 "Property" means the real property in the City of Tustin described and /or depicted in Exhibit "C" hereto. 1.1.10 "Project" means OWNER'S (a) redevelopment of a portion of OWNER'S retail space into a the Community Facilities in accordance with this Agreement, and (b) development of up to 23,622 square feet of additional floor area on the Property for restaurant and /or other retail uses. 1.1.11 "Restrictive Declaration (s) "means the following declarations affecting the Other Centers: Declaration of Special Land Use Restrictions, Mortgage Lien and Option to Repurchase recorded in the Official Records of Orange County, California, on September 30, 1993, as Instrument No. 93- 662265; the Declaration of Special Land Use Restrictions, Mortgage SDH\ 30209 -0429\ 469207.13 8/26/2014 -2- Lien and Option to Repurchase recorded in the Official Records of Orange County, California, on June 15, 1992, as Instrument No. 92-402309; the Declaration of Special Land Use Restrictions recorded in the Official Records of Orange County, California, on March 31, 1995, as Instrument No. 95- 0137203; the Declaration of Special Land Use Restrictions, Mortgage Lien and Option to Repurchase recorded in the Official Records of Orange County, California, on June 12, 1992, as Instrument No. 92- 399355; and the Declaration of Special Land Use Restrictions recorded in the Official Records of Orange County, California, on May 6, 1999, as Instrument No. 1999033185 1 , as any of the foregoing have been amended. 1.2 Exhibits. The following exhibits are attached to this Agreement and incorporated herein by this reference: Exhibit "A" -- Community Facilities Exhibit "B" -- Description/Depiction of Other Centers Exhibit "C" -- Description/Depiction of the Property 2. DEVELOPMENT OF PROPERTY AND USE OF COMMUNITY FACILITIES. 2.1 Computation of Maximum Floor Area; Further Development. The Community Facilities are hereby dedicated for Community Uses in accordance with this Agreement. Therefore, the Community Facilities Floor Area shall not be considered as floor area in determining the Maximum Floor Area developed at the Property under the Existing Entitlement Approvals. As a result, as of the Effective Date, 709,968 square feet of the Maximum Floor Area has been developed on the Property leaving an additional 26,607 square feet of floor area that may be developed on the Property by OWNER ("Additional Floor Area "). No further environmental impact report, traffic study or similar reports or studies shall be required for the development of the Additional Floor Area, which may be developed by OWNER within the Property. CITY approvals /permits required for the development of the Additional Floor Area shall include site development review(s), grading plans(s), building permit(s), initial assessment to confirm compliance with the Existing Entitlement Approvals (which may include an Environment Assessment Form concerning CEQA compliance), and conditional use applications pursuant to the applicable requirements of the CITY zoning code. The foregoing shall not limit the right of the CITY to disapprove any application or request as part of its normal review and approval process if localized impacts of additional floor area are not mitigated by Project design features. 2.2 Use of Community Facilities. The Community Facilities will be used for Community Uses in accordance with the following: 2.2.1 CITY shall have the right to establish hours of use for the Community Facilities which will be during hours other than 7 am to 9 am and 4 pm to 6 pm Monday through Friday, and to establish and enforce non - discriminatory rules and regulations concerning the use of the Community Facilities; SDH\ 30209 -0429\ 469207.13 8/26/2014 -3- 2.2.2 OWNER, at its cost and expense, will make modifications to the Community Facilities, as determined by OWNER in its sole discretion, to make the Community Facilities usable for the purposes of this Agreement; 2.2.3 The OWNER shall refer to the CITY members of the public wishing to use the Community Facilities; 2.2.4 The CITY shall schedule events and use of the Community Facilities and shall provide OWNER with a written schedule of events for each week no later than two (2) business days prior to the first day of such week, however OWNER shall retain all keys to the Community Facilities and will have control over access to same in accordance with events scheduled by CITY; provided that OWNER will provide the CITY with a 7 day a week 24 -hour phone number if the CITY needs immediate access to the Community Facilities ; 2.2.5 Except as otherwise provided in Sections 2.2.6, 2.2.7 and 2.2.8 below, OWNER, at its cost, shall be responsible for maintenance of the Community Facilities; 2.2.6 Except as otherwise provided in Sections 2.2.7 and 2.2.8 below, all users of the Community Facilities shall be charged and obligated to pay a fee that is payable to OWNER for the use of the Community Facilities. Such fee shall include two components: a per hour cost reimbursement to OWNER to reimburse OWNER for those costs listed on Exhibit "D " hereto ("Reimbursed Costs "), plus the administrative cost described on Exhibit "D " to reimburse OWNER for its overhead expenses (the "Administration Fee "). The Reimbursed Costs shall be updated by OWNER and the CITY on an annual basis to reflect increases, if any, in such costs; 2.2.7 Each calendar year, the CITY shall be entitled to hold up to 12 official CITY sponsored events (i.e., an event organized by the CITY and attended by one or more CITY employees or consultants) (a "CITYEvent") without paying the fee described in Section 2.2.6 above, except that the CITY shall be responsible for set -up and clean -up in accordance with Section 2.2.8 below. The CITY shall also be entitled to hold a reasonable number of informal, short -term CITY Events from time to time that do not require heating or air conditioning (such as small staff meetings) and which shall not be counted toward the 12 free annual CITY Events described in the preceding sentence; such informal City Events shall also be permitted without paying the fee described in Section 2.2.6 above, exce t that the CITY shall be responsible for set -up and clean -up in accordance with Section 2.2.8 below. For all other CITY Events not covered by the preceding two sentences, the CITY shall be obligated to pay Reimbursed Costs only, and shall not be obligated to pay the Administration Fee; 2.2.8 Each user of the Community Facilities shall be responsible for the set -up and clean -up of its particular event. When scheduling an event at the Community Facilities, the CITY shall have the option of either (a) requiring the user to have OWNER perform such work on the user's behalf (in which event the charges for such services, plus the Administration Fee calculated on such charges, shall be as set forth in Exhibit "D "), or (b) obligating itself (i.e., the CITY) to perform the set -up and clean -up with respect to the event in question, in which case the Reimbursed Costs that Owner is entitled to recover for such event shall not include a set -up fee or cleaning fee; SDM 30209 -0429\ 469207.13 8/26/2014 -4- 2.2.9 OWNER will maintain the Community Facilities in good condition and repair. The costs of such maintenance will be included in Reimbursable Costs unless extraordinary repair and /or clean -up costs caused by a user, including the CITY, are incurred, in which case the extraordinary costs shall be the responsibility of the applicable user. If OWNER fails or neglects to commence any repair required to maintain the Community Facilities in good condition the following shall apply: (a) If such repair is of a non "health- safety" (as defined below) or "minor" nature and such failure continues for ten (10) business days after receipt of the CITY's written notice stating the repairs required to be made (unless the repair is such that by nature it cannot reasonably be completed within 10 business days, in which case OWNER shall be in compliance with this Agreement if it diligently prosecutes the repair to completion as soon as reasonably possible and the following language regarding the CITY's second notice shall not apply), then the CITY may proceed as follows: the CITY may give OWNER a second written notice specifying the nature of OWNER's failure to repair the Community Facilities as required by this Agreement, the further remedial action reasonably deemed necessary by the CITY, and that if such remedial action is not undertaken within five (5) days after OW`NER's receipt of such second notice, the CITY will have the right to enter the Property and make the necessary repairs for the account of OWNER and, following the CITY's completion of the work, OWNER shall promptly reimburse the CITY for expenses actually and reasonably incurred by the CITY for such repairs following OW'NER's receipt of paid invoices. Except as provided in subsection (b) of this Section, in no event shall the CITY have the right to undertake any repairs or otherwise modify any structural elements of the Community Facilities or any building systems serving the Community Facilities. (b) If such repair is of "health- safety" nature, "health- safety" meaning that failure to repair promptly will involve an immediate and material risk to the health and /or safety of persons (such as carpet tears which may cause an fall, plumbing problems which would prevent use of bathrooms and /or air conditioning or heating failures that could preclude the use of the Community Facilities), and such failure is not cured within a reasonable time period given the nature of the repair, the timing and nature of upcoming scheduled events and circumstances or conditions beyond the reasonable control of OWNER and after receipt of the CITY's written notice stating the repairs required to be made, then the CITY may provide written notice to OWNER and immediately thereafter enter the Property and remedy such failure as provided in Section (a) above, in which case the CITY shall be entitled to reimbursement as provided in (a) above. (c) If such repair is of a "minor" nature, "minor" meaning a repair that does require special and /or advance order of materials and or labor (such as the replacement of light bulbs) and such failure is not cured within three (3) business days after receipt of the CITY's written notice stating the repairs required to be made as such time period maybe extended due to circumstances or conditions beyond the reasonable control of OWNER, then the CITY may provide written notice to OWNER and if such repair is not made within one (1) business day after delivery of such notice to Owner, CITY may then enter the Property and remedy such failure as provided in Section (a) above in which case the CITY shall be entitled to reimbursement as provided in (a) above. SDH\ 30209 -0429\ 469207.13 8/26/2014 -5- 2.2. 10 In no event shall the Community Facilities be used for any use which (a) would not be permitted under zoning ordinances applicable to the Property in effect on the date of such use as determined by the CITY, or (b) are listed on Exhibit E hereto. 2.2.11 OWNER shall provide identification signage above the entrance to the Community Facilities and directional signage at the building in which the Community Facilities are located in locations designated by OWNER, and all such signage shall conform with OWNER's sign criteria for the Property. 2.2.12 Third parties wishing to use the Community Facilities shall be required to obtain insurance in an amount of not less than one million dollars ($1,000,000) per occurrence, and to name both the CITY and OWNER as additional insureds on each such policy. Third parties shall be required to provide the CITY with endorsements demonstrating compliance with this requirement. In addition, to the extent that the CITY requires persons or entities using the Community Facilities to sign waivers of liability in favor of the CITY, said forms shall be modified to also include waivers of liability against the OWNER. 3. DEVELOPMENT OF OTHER CENTERS. 3.1 Impact of Restrictive Declarations. The Restrictive Declarations were created by OWNER or an affiliate of OWNER in connection with the sale by OWNER of the Other Centers. The Restrictive Declarations, among other things, limit the retail /commercial square footage that may be developed on the Other Centers without the approval of OWNER. 3.2 Waiver by OWNER. In consideration of the CITY'S execution of this Agreement, except as provided below, OWNER hereby waives all of its rights under the Restrictive Declarations, with respect to the development on the Other Centers by the owners thereof including, without limitation, the right to charge any owners of the Other Centers any fees for developing the Other Centers under the Restrictive Declarations so long as (a) any additional development thereon is approved by the CITY through its normal entitlement and development process, and (b) the 23,622 square feet of retail space available as a result of the Community Facilities being dedicated for Community Uses and the remaining unused 3,162, square feet of floor area authorized for retail use remain allocated solely for development of the Property by OWNER. Notwithstanding the foregoing, the foregoing waiver (i) applies only to OWNER'S rights under the Restriction Declarations and does not constitute a wavier of by OWNER of any of its rights or remedies at law or otherwise as an adjacent land owner with respect to any Other Centers and (ii) does not apply to OWNER'S rights of architectural approval which will be exercised in a good faith and in a manner consistent with OWNER'S review of other similar projects. The Parties agree that the nature of any damages the CITY would suffer as a result of OWNER'S breach of any portion of this Section 3.2 would be extremely difficult to fix. The Parties therefore agree that in the event that OWNER breaches this Agreement by attempting to enforce any provision of any of the Restrictive Declaration(s) waived by the Owner in Section 3.2, OWNER shall pay liquidated damages to the CITY in an amount equal to the amount OWNER claims in fees under said Restrictive Declaration(s) for developing the Other Centers under the Restrictive Declarations. The liquidated damages provided for in this provision shall be in addition to any other legal or equitable remedy available to the CITY. SD11\ 30209 -0429\ 469207.13 8/26/2014 -6- 3.3 Limitation. Except as otherwise provide in Section 3.2 above, this Agreement does not amend or modify the Restrictive Declarations in any way, and the agreement of OWNER under Section 3.2 above shall not in any way apply to or constitute a waiver or limitation of any other rights, remedies or authorizations of OWNER (a) under the Restrictive Declarations including, without limitation, rights to approve design, location, type and uses of improvements on the Other Centers, (b) under any other documents or agreements, whether or not of record, or (c) as an owner of property in the vicinity of the Other Centers. 4. DEFAULT, REMEDIES, AND TERMINATION. 4.1 Default Procedure. Except as otherwise provided in Section 2.2.9, a non - defaulting Party (the "Non- Defaulting Party') at its discretion may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of any other Party ( "Defaulting Party ") to perform any material duty or obligation of said Defaulting Party in accordance with the terms of this Agreement. However, the Non - Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by the Defaulting Party to cure such breach or failure. The Defaulting Party shall be deemed to be in "default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take action and cure the default within ten (10) days after the date of such notice (for monetary defaults) or within thirty (3 0) days after the date of such notice (for non - monetary defaults). If, however, a non - monetary default cannot be cured within such thirty (30) day period, as long as the Defaulting Party does each of the following: 4. 1.1 notices the Non - Defaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period; 4.1.2 notifies the Non - Defaulting Party in writing of the Defaulting Party's proposed course of action to cure the default; 4.1.3 promptly commences to cure the default within the thirty (30) day period; 4.1.4 makes periodic written reports to the Non - Defaulting Party as to the progress of the program of cure, and: 4.1.5 diligently prosecutes such cure to completion, then the Non - Defaulting Party shall grant in writing the Defaulting Party such additional time as determined by the Non - Defaulting Party as reasonably necessary to cure such default. 4.2 Default Remedies. Except as otherwise provided in Section 2.2.9, after complying with Section 4. 1, in the event of an uncured default, the Non - Defaulting Party, at its option, may institute legal action to cure, correct or remedy such default, enjoining any threatened or attempted violation, enforce the terms of this Agreement by specific performance, or pursue any other legal or equitable remedy. Furthermore, the CITY, in addition to or as an alternative to exercising the remedies in this Section 4.2, in the event of a material default by SDH\ 30209 -0429\ 469207.13 8/26/2014 -7- OVvTNER, may give notice of its intent to terminate or modify this Agreement, in which event the matter shall be scheduled for consideration and review by the City Council. 4.3 OWNER's Waiver of Damages. OWNER agrees and covenants on behalf of itself and it successors and assigns, not to sue CITY for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application or effect of this Agreement, or for consequential damages arising out of or connected with any dispute, controversy, or issues regarding this Agreement. OWNER acknowledges that the CITY would not have entered into this Agreement if the CITY could be held liable for general, special or compensatory damages for any default or breach arising out of this Agreement and that OWNER has adequate remedies other than general, special or compensatory damages, to secure the CITY's compliance with its obligations under this Agreement. Therefore, OWNER agrees that the CITY, its officers, employees and agents shall not be liable for any general, special or compensatory damages and that this section shall apply to any successor, assignee or transferee of the OWNER. 4.4 Third Party Legal Challenges. In the event of any legal action instituted by a third Party challenging the validity or enforceability of any provision of this Agreement ("Third Party Challenge"), OWNER shall, at its sole expense, defend any Third Party Challenge. OWNER, in defending any Third Party Challenge shall further have the right to settle such Third Party Challenge, provided that nothing herein shall authorize OWNER to settle such Third Party Challenge on terms that would constitute an amendment or modification of this Agreement or the East Tustin Development Agreement or the Existing Entitlement Approvals or impose any material obligation on the CITY unless such amendment, modification or obligation is approved by the CITY in accordance with applicable legal requirements, and the CITY reserves its full legislative discretion with respect thereto. Provided that the OVNNER promptly provides the defense required hereunder, and provided further that said defense is not undertaken in a manner that the CITY determines, in its reasonable judgment to be materially detrimental to the CITY, the CITY shall not incur any costs or take any actions to defend such Third Party Challenge without OWNER's approval. OWNER shall also indemnify and hold harmless the CITY and its agents, officials and employees from and against all claims, losses, or liabilities assessed or awarded against the CITY by way of judgment, settlement, or stipulation as a result of any successful Third Party Challenge; provided however that if the Third Party Challenge and /or the result thereof may have a material adverse impact on the CITY, OWNER will not agree to any settlement of same without the written approval of the CITY which shall not be unreasonably withheld. 5. INDEMNITY. 5.1 BY OWNER. OWNER agrees to indemnify, defend, and hold harmless CITY, CITY's designees, and their respective elected and appointed officials, boards, commissions, agents, contractors, and employees from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorney's fees and costs) which may arise, directly or indirectly, from the acts, omissions, or operations of OWNER or OWNER's agents, contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any loss resulting from the intentional misconduct or active negligence of the CITY, CITY's designee, or each of their respective elected and appointed SDH\ 30209 -0429\ 469207.13 8/26/2014 -8- officials, boards, commissions, officers, agents, contractors, and employees. OWNER shall select and retain counsel reasonably acceptable to the CITY to defend any such action or actions and OWNER shall pay the cost thereof. 5.2 BY CITY. CITY agrees to indemnify, defend, and hold harmless OWNER, its agents, contractors, and employees from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorney's fees and costs) caused by the active negligence or intentional wrongful acts or omissions of the CITY or its officers, agents or employees relating to the CITY's use of the Community Facilities. CITY shall select and retain counsel reasonably acceptable to the OWNER to defend any such action or actions and CITY shall pay the cost thereof. 5.3 Survival. The indemnity provisions set forth in this Agreement shall survive termination of the Agreement. 6. GENERAL PROVISIONS. 6.1 Public Benefits. This Agreement provides certain public benefits to the CITY, including without limitation, making additional community facilities available to members of the public. 6.2 Mutual Objectives. Development of the Project in accordance with this Agreement will provide for the orderly development of the Property and Other Centers in accordance with the objectives set forth in the General Plan, will eliminate uncertainty in planning for and securing orderly development of the Property, assure attainment of maximum efficient resource utilization within the CITY at the least economic cost to its citizens. 6.3 Applicability of the Agreement. This Agreement does not: (1) grant density or intensity in excess of that otherwise established in the Existing Entitlement Approvals; (2) eliminate future discretionary actions relating to the Property if applications requiring such discretionary action are initiated and submitted by OWNER with respect to the Property after the Effective Date; or (3) amend the Specific Plan or the CITY's General Plan. 6.4 Binding Effect. The Property is hereby made subject to this Agreement. The Project is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 6.5 Assi ent. 6.5.1 Right to Assign. The rights, interests and obligations conveyed and provided herein to OWNER benefit and are appurtenant to the Property. OWNER has the right to sell, assign and transfer any and all of its rights and interests and to delegate any and all of its duties and obligations hereunder. Upon any sale or transfer of the Property, the rights and obligations of OWNER as to the Property or applicable portion thereof shall be deemed assigned to and assumed by the transferee of the Property. 6.5.2 Subject to Terms of Agreement. Following an assignment or transfer of any of the rights and interests of OWNER set forth in this Agreement in accordance with this SDH\ 30209 -0429\ 469207.13 8/26/2014 -9- Section 2.2, the assignee's exercise, use, and enjoyment of the Property shall be subject to the terms of this Agreement to the same extent as if the assignee or transferee were OWNER. 6.6 Notices, Demands and Communications between the Parties. All notices, demands, consents, requests and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the other Party; (b) five (5) business days after such notice has been sent by United States mail via certified mail, return receipt requested, postage prepaid, and addressed to the other Party as set forth below; or (c) two (2) business days after such notice has been deposited with a national overnight delivery service reasonably approved by the Parties (FedEx, UPS and U.S. Postal Service are deemed approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as set forth below with next business day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows: If to CITY: Tustin City Hall 300 Centennial Way Tustin, CA 92780 Attention: City Manager and Attention: Director of Community Development If to OWNER: The Irvine Company LLC 101 Innovation Irvine, CA 92617 Attention: General Counsel, Retail Properties With a copy to: Pirzadeh & Associates, Inc. 30 Executive Park, Suite 270 Irvine, CA 92614 -4726 Attention: Peter K. Pirzadeh Any Party may by written notice to the other Party in the manner specified in this Agreement change the address to which notices to such Party shall be delivered. 6.7 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties with respect to the matters set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. 6.8 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the internal laws of the State of California without reference to choice of law or conflicts of law provisions. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the SDH\ 30209 -0429\ 469207.13 8/26/2014 -10- 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. 6.9 Section Headiness. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 6.10 Singular and Plural. As used herein, the singular of any word includes the plural. 6.11 Time of Essence. Subject to the following sentence, time is of the essence in the performance of each provision of this Agreement. Whenever action must be taken (including the giving of notice or the delivery of documents) under this Agreement during a certain period of time or by a particular date that ends or occurs on a non - business day, then such period or date shall be extended until the immediately following business day. As used herein, "business day" means any day other than Saturday, Sunday or a federal or California state holiday. 6.12 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. 6.13 No Third Party Beneficiaries. Except as otherwise specifically provided in this Agreement, 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. 6.14 Attorneys' Fees. If legal action is commenced to enforce or to declare the effect of any provision of this Agreement, the prevailing Party shall be entitled to recover from the non - prevailing Party actual and reasonable attorneys' fees and other litigation costs. In addition to the foregoing award of attorneys' fees and other litigation costs to the prevailing Party, the prevailing Party in any lawsuit or reference proceeding on this Agreement shall be entitled to its attorneys' fees and other litigation costs incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 6.15 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, the Parties and their respective successors and assigns. 6.16 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. 6.17 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 SDH\ 30209 -0429\ 469207.13 8/26/2014 -11- the County of Orange, State of California, or the United States District Court for the Central District of California, Santa Ana Division. 6.18 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 OWNER of such property. 6.19 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, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary 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. 6.20 Estoppel Certificate. Any Party hereunder, may at any time, deliver a written notice to the other Party requesting such Party to certify in writing that, to the best knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Party; (ii) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the date and nature of the amendments to this Agreement, but it remains in full force and effect as modified, and a continuing binding obligation of the Party; and (iii) the certifying Party has no knowledge of the requesting Party's default in performance of its obligations set forth in the Agreement, or if the certifying Party has knowledge of such a default, provide a description thereof of the nature of such default(s). A Party receiving a request hereunder shall execute and return such certificate within thirty (30) days following receipt thereof. Any third party, including a mortgagee shall be entitled to rely on the certificate. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates. 6.21 Authority to Execute. The person or persons executing this Agreement on behalf of each Party warrants and represents that he or she /they have the authority to execute this Agreement on behalf of such Party and warrants and represents that he or she /they has /have the authority to bind such Party to the performance of its obligations hereunder. 6.22 Casualty. In the event of a casualty resulting in the demolition of the building in which the Community Facilities are located (the "Building"), a comparable replacement facility shall be constructed in a building to be located (i) within the current footprint of the Building or (ii) at another location within the Property that is mutually acceptable to the parties. [SIGNATURES CONTAINED ON FOLLOWING PAGE] SDH\ 30209 -0429\ 469207.13 8/26/2014 -12- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. ATTEST: Name: Title: APPROVED AS TO FORM: Office of the City Attorney Lan David E. Kendig, Esq. "CITY" CITY OF TUSTIN, California MO Name: Title: "0)7vrNER" THE IRVINE COMPANY LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: SDH\ 30209 -0429\ 469207.13 8/26/2014 -13- EXHIBIT "A" COMMUNITY FACILITIES [SEE ATTACHED DIAGRAM] SDH\ 30209 -0429\ 469207.13 8/26/2014 % A %o E I it U u tl ao C EXHIBIT A ID w Z) (n c4-- n v) (n LO N m (D 00 Cr} cyi L6 N N IN ON", a) a> U u co m a. ca.. q3 v CD a) .r— X—' cz 4-j 4-a E E E E 0 0 U C C: w cn 0 0 0 E C: CU Cif LO T— LO C? N co (1) F- 0 �Q EXHIBIT "B" DESCRIPTION /DEPICTION OF OTHER CENTERS The "Tustin Ranch Plaza" and the "Tustin Ranch/Bryan (Costco) Center," both as generally depicted on the diagram attached hereto. SDH\ 30209 -0429\ 469207.13 8/26/2014 ►r�lrr., r �9L ip j?� TUSTIN RANCH/BRYAN (COSTCO) CENTER (f , I TUSTIN MARKET PLACE (PROPERTY) ♦ 0� �O EXHIBIT B • San a low W M� F m� of of of • r .a., • a TUSTIN RANCH PLAZA (1( �o (i) OTHER CENTERS EXHIBIT "C" DESCRIPTION /DEPICTION OF THE PROPERTY The Market Place located in the City of Tustin, California, as generally depicted on the diagram attached hereto. SDH\ 30209 -0429\ 469207.13 8/26/2014 00169? zIV as V y t Q rcp X V3 z + C 0 o c a � � �• GG 0' 0 � 0 p � � � OC 4 CC Ol 4 Y it a o c coo ^ � � �. y °� �"'r •--- •...., -r._ . I �'• a•n o o .• i ` i I e: itioOk , , cm Q i tom• y d' G � C 4 � 1 I EXHIBIT C EXHIBIT "D" REIMBURSED COSTS SDH\ 30209 -0429\ 469207.13 8/26/2014 Base Charge Additional Charge for every hour after 4 hours CLEANING AND SET UP $200 $50 /hour UTILITIES Auditorium A $120 N/A Auditorium B $110 N/A Meeting Room A or B $100 N/A *SECURITY $120 $30 /hour *If required by contract or if reasonably determined as necessary by Owner AUDIO VISUAL SERVICE (OPTIONAL) $420 $105 /hour ATTENDANT /PORTER SERVICE (OPTIONAL) Auditorium A Auditorium B Meeting Room A Meeting Room B ADMINISTRATION FEE For each use of the Community Facilities, Owner shall also be entitled to charge the user an Administrative Fee equal to fifteen percent (15 %) of the total charges incurred for such use as calculated above $325 $80 /hour $280 $70 /hour $255 $65 /hour $230 $60 /hour EXHIBIT "E" PROHIBITED USES SDH\ 30209 -0429\ 469207.13 8/26/2014 Prohibited Uses The Community Facilities shall not be used for retail purposes. Further, pursuant to existing lease agreements between owner and certain tenants, no part of the Property shall be used for: (i) a purpose which creates strong, unusual or offensive odors, or unusual fumes, dust or vapors, or which creates unusual fire, explosive or other hazards that are not covered by insurance; (ii) a cemetery; (iii) a mortuary; (iv) a book store or establishment engage in the principal business of selling, renting, exhibiting or delivering pornographic or obscene materials; (v) a so- called head shop; (vi) an off -track betting parlor; (vii) a junkyard; (viii) any industrial manufacturing uses; (lx) a school; (x) a house of worship; (xi) a stockyard; (xii) a flea market; (xiii) a training or educational facility, which means a beauty school, barber college, classroom, reading room, place of instruction, or any other operation catering primarily to students or trainees, as opposed to training or educational facilities incidental to the conduct and operation of a non - training and non - educational type of business being conducted in any premises in the Shopping Center; (xiv) a funeral parlor; (xv) a massage parlor; (xvi) any use not compatible with a first -class retail shopping center; (xvii) bowling alley; (xviii) a tavern or bar which is not a part of a full kitchen service restaurant; (xix) any mobile home park, trailer court, or labor camp; (xx) any dumping, disposing, incineration, or reduction of garbage; (xxi) any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation; (xxii) any automobile, truck, trailer or R.V. sales, leasing, display or repair; (xxiii) any living quarters, sleeping apartments, or lodging rooms; (xxiv) any production, manufacturing, industrial or storage use of any kind or nature, except for storage and /or production of products incidental to the retail sale thereof from the Shopping Center; (x,xv) any use which materially increases fire, explosion or radioactive hazards; (xxvi) "second hand" or thrift stores (provided the foregoing shall not preclude the sale of closeouts or seconds as an incidental part of any tenant's business nor shall the foregoing preclude the operation of a first -class vintage or antique retail store or a store selling as a part of its business first -class vintage clothing or merchandise or antiques); ( xxvii) pawn shop, or recycling facility; (xxviii) oil development operations, oil refining operations, quarry or mining operations of any kind, oil wells, tunnels, or mineral excavations or shafts (on the surface or within 500 feet below the surface of any portion of the Shopping Center), decks or other structures designed for use in boring for water, oil, natural gas or other minerals; or (xxix) any so- called "dollar store" (or similar discount store) where the majority of merchandise are advertised for sale at a single price of Five Dollars ($5.00) or less; (xxx) primarily as an unfinished furniture store; (xxxi) any living quarters, sleeping apartments or lodging rooms; (xxxii) the performance of any illicit sexual activity, lewd or obscene performance, including by way of illustration, but not by way of limitation, prostitution, peep shows, topless restaurants or performances and the like; (xxxiii) any use which is illegal, any use which creates an unreasonable risk of fire or explosion hazard or gun range; and (xxxiv) any storage or for any assembling, distilling, refining, smelting, agricultural or mining operation. ATTACHMENT C PARKING ANALYSIS Pi"-- tr ?7adeh .AO W-OFEW"W7 & A S S (") CI A T F S, I N C., September 3, 2014 Ms. Elizabeth Binsack Community Development Director City of Tustin 300 Centennial Way Tustin, CA 92780 Subject: Tustin Community Facility at Tustin Market Place Dear Ms. Binsack: 30 Executive Park 0949) 851-1367 Suite 270 fi- (949) 851-5179 Irvine, CA 92614-4726 www.pirzadeh.com The proposed Community Facility at Tustin Market Place will be located in the former Regal Theaters space just south of West Drive and west of Jamboree Road. The traffic impacts of Tustin Market Place and the Tustin Specific Plan Development were addressed in the Environmental Impact Report certified for this development area. The peak hours of traffic activity on roadways are generally 7 AM to 9 AM and 4 PM to 6 PM during week days. Therefore, the use of the Community Facility outside of these time periods will not have an adverse impact on the circulation system in the vicinity of the site. Furthermore, the parking supply at Tustin Market Place exceeds the applicable code requirements by 700 spaces. The parking demand associated with the Community Facility can be accommodated at the Center since the area of use would be similar to the former theaters. Furthermore, significant excess parking will remain available throughout the Center for other existing and future uses. Please call me if you have any questions or require further information regarding the subject project. Sincerely, S e o. 35283 z Peter K. Pirzadeh, P.E. 19 LU Exp m Principal Civil. ��.� c: Ms. Justina, Willkom, City of Tustin f- CAI-I Mr. John Murphy, Irvine Company Retail Properties .. PAS 1363-TMP-09032014-EBinsack-CommunityFacihtyTraffic-Itr.pkp Pmjecl Mazzagemeni TfunspRoolion Plannir%- & Erkgim-eiing Govemment Liaison ATTACHMENT D RESOLUTION NO. 4266 RESOLUTION NO. 4266 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE TUSTIN CITY COUNCIL ADOPT ORDINANCE NO. 1449 AND APPROVE DEVELOPMENT AGREEMENT 2014 -001, THE FIFTH AMENDMENT TO THE EAST TUSTIN DEVELOPMENT AGREEMENT BETWEEN THE CITY OF TUSTIN AND THE IRVINE COMPANY LLC, TO ALLOW THE CONVERSION OF UP TO 23,445 SQUARE FEET OF THE FORMER EDWARDS THEATER LOCATED AT 2982 -3030 EL CAM I N O REAL TO A CITY OF TUSTIN COMMUNITY CENTER AND TO ALLOW THE TRANSFER OF DEVELOPMENT RIGHTS OF THE THEATER SPACE TO OTHER POTENTIAL DEVELOPMENT SITES WITHIN THE TUSTIN MARKET PLACE COMMERCIAL CENTER. The Planning Commission of the City of Tustin does hereby resolve as follows: I. The Planning Commission finds and determines as follows: A. That The Irvine Company LLC wishes to convert up to 23,445 square feet of the former Edwards Theater located at 2982 -3030 El Camino Real to Community Facilities available to the public and to allow the transfer of development rights of the theater space to other potential development sites within the Tustin Market Place commercial center. B. That the Community Development Director has determined that the Community Facilities are a continuation of a pre- existing assembly use, would operate similarly to other allowed assembly uses, and are a permitted use in the Mixed -Use land use designation of the East Tustin Specific Plan. C. That the City of Tustin (the City) and The Irvine Company LLC propose to enter into a development agreement to delineate the terms, the appropriate uses of the Community Facilities, the responsibilities of the City of Tustin and The Irvine Company LLC, the costs to use the Community Facilities, and other general provisions and requirements. D. That the Community Facilities would be used for official City sponsored meetings, activities, functions and events, as well as activities allowed by the City in other community facilities such as family parties, wedding receptions, quinceneras, memorial services, banquets /luncheons, award ceremonies, craft fairs, health fairs, expos, meetings, trainings /seminars /workshops, presentations, non - commercial classes, dances, community gatherings, youth /teen programs, fundraisers, movie nights, musical performances, 1001525.1 Resolution No. 4266 DA 2014 -001 Page 2 lecture series, educational programs, conferences and childhood development programs. E. That the City would program and establish the hours of use for the Community Facilities which will be during hours other than 7 am to 9 am and 4 pm to 6 pm Monday through Friday (off peak), and establish and enforce non - discriminatory rules and regulations concerning the use of the Community Facilities. F. That the dedication of 23,445 square feet of existing floor area for community use to the City of Tustin for its sole use and programming will enable The Irvine Company, LLC to develop other sites within the Tustin portion of The Market Place commercial center. However, site development review(s), grading plan(s), building permit(s), assessment(s) to confirm compliance with entitlement approvals, and any applicable conditional use permits would be required for the new development. Further, the City would retain the right to disapprove an application for the new development if the localized impacts of the additional floor area are not mitigated by project design features. G. That The Irvine Company LLC agrees to waive its rights with respect to the development of the other commercial centers within Tustin Ranch, including the ability to charge the owners of the other centers any fees for developing the other centers, provided that the additional development at the other centers is approved by the City through the normal entitlement and development process. H. That a public hearing was duly called, noticed, and held on said application on September 9, 2014, by the Planning Commission. I. That this project has been determined to be exempt pursuant to California Environmental Quality Act (CEQA) Section 15061(b)(3) in that CEQA applies only to projects which have the potential for causing a significant effect on the environment. If adopted, proposed Development Agreement (DA) 2014 -001 would allow for the continuation of an assembly use (Community Facilities within a former theater) and allow development rights to be transferred to other in -fill development project sites which would be subject to separate CEQA review. The DA has no possibility for causing a significant effect on the environment; therefore, the project is not subject to CEQA. J. That the proposed Fifth Amendment to the East Tustin DA 2014 -001 will ensure the implementation of the East Tustin Specific Plan, eliminate uncertainty in planning, provide for the orderly development of the Tustin portion of The Market Place commercial center, allow the installation of necessary and desirable improvements, provide a venue for public and private events, generally serve the public interest within the City and the Resolution No. 4266 DA 2014 -001 Page 3 surrounding region and otherwise comply with Section 9611 of the Tustin City Code as follows: 1. DA 2014 -001 is consistent with the objectives, policies, general land uses, and programs specified in the General Plan and East Tustin Specific Plan in that the project is consistent with Tustin General Plan Land Use Element Policies 9.1, 9.2, and 9.3, and would further the goals and objectives of the City and the Tustin portion of The Market Place commercial center by providing for orderly development envisioned at the project site as follows: Policy 9.1: Ensure the compatibility of development in East Tustin adjacent to existing developed areas. Policy 9.2: Provide for supporting land uses in East Tustin, including neighborhood commercial centers, park and recreational facilities, and schools, to serve the residential community. Policy 9.3: Continue development phasing which provides incremental growth that is coordinated with the existing adjacent development, infrastructure and market opportunities 2. DA 2014 -001 is consistent with the East Tustin Specific Plan. Any future development and uses within the Tustin portion of The Market Place commercial center will be further analyzed at the time of development proposals for consistency with the East Tustin Specific Plan. 3. DA 2014 -001 is in conformance with the public necessity, public convenience, general welfare, good land use practices, and the orderly development of property, in that the establishment of Community Facilities within the former theater space will provide a venue that is available to the public for private and public events; and, allowing the transfer of development rights to other potential development sites would allow for more efficient and rational planning of the Tustin portion of The Market Place commercial center pursuant to the East Tustin Specific Plan. 4. An environmental analysis has been conducted and determined that there will not be any detrimental effect to the health, safety, and welfare with the implementation of DA 2014 -001 in that the Community Facilities will be used during off peak hours, and future potential in -fill development project sites would be subject to separate review. In addition, DA 2014 -001 complies with all applicable Federal, State, and Local rules and regulations. Resolution No. 4266 DA 2014 -001 Page 4 5. DA 2014 -001 will have a positive fiscal impact on the City in that it will provide Community Facilities to the City and allow for potential development that would provide sales tax and property tax revenue to the City. II. The Planning Commission hereby recommends that the City Council adopt Ordinance 1449 approving DA 2014 -001 (Fifth Amendment to the East Tustin DA) attached hereto as Exhibit A. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 9th day of September, 2014. JEFF R. THOMPSON Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4266 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 9th day of September, 2014. PLANNING COMMISSIONER AYES: PLANNING COMMISSIONER NOES: PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: ELIZABETH A. BINSACK Planning Commission Secretary EXHIBIT A TO RESOLUTION NO. 4266 DRAFT ORDINANCE NO. 1449 DRAFT ORDINANCE NO. 1449 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING AMENDMENT #5 TO THE EAST TUSTIN DEVELOPMENT AGREEMENT (DA 2014 -001) BETWEEN THE CITY OF TUSTIN AND THE IRVINE COMPANY LLC, TO ALLOW THE CONVERSION OF UP TO 23,445 SQUARE FEET OF THE FORMER EDWARDS THEATER LOCATED AT 2982 -3030 EL CAMINO REAL TO A CITY OF TUSTIN COMMUNITY CENTER AND TO ALLOW THE TRANSFER OF DEVELOPMENT RIGHTS OF THE THEATER SPACE TO OTHER POTENTIAL DEVELOPMENT SITES WITHIN THE TUSTIN MARKET PLACE COMMERCIAL CENTER. The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council finds and determines as follows: A. That The Irvine Company LLC wishes to convert up to 23,445 square feet of the former Edwards Theater located at 2982 -3030 El Camino Real to Community Facilities available to the public and to allow the transfer of development rights of the theater space to other potential development sites within the Tustin portion of The Market Place commercial center. B. That the Community Development Director has determined that the Community Facilities are a continuation of a pre- existing assembly use, would operate similarly to other allowed assembly uses, and are a permitted use in the Mixed -Use land use designation of the East Tustin Specific Plan. C. That the City and The Irvine Company LLC propose to enter into a development agreement to delineate the terms, the appropriate uses of the Community Facilities, the responsibilities of the City of Tustin and The Irvine Company LLC, the costs to use the Community Facilities, and other general provisions and requirements. D. That the Community Facilities would be used for official City sponsored meetings, activities, functions and events, as well as activities allowed by the City in other community facilities such as family parties, wedding receptions, quinceneras, memorial services, banquets /luncheons, award ceremonies, craft fairs, health fairs, expos, meetings, train ings /seminars /workshops, presentations, non - commercial classes, dances, community gatherings, youth /teen programs, fundraisers, movie nights, musical performances, lecture series, educational programs, conferences and childhood development programs. Ordinance No. 1449 DA 2014 -001 Page 2 E. That the City would program and establish the hours of use for the Community Facilities which will be during hours other than 7 am to 9 am and 4 pm to 6 pm Monday through Friday (off peak), and establish and enforce non - discriminatory rules and regulations concerning the use of the Community Facilities. F. That the dedication of 23,445 square feet of existing floor area for community use to the City of Tustin for its sole use and programming will enable The Irvine Company, LLC to develop other sites within the Tustin portion of The Market Place commercial center, without having to provide further environmental studies for the development of the new floor area. However, site development review(s), grading plan(s), building permit(s), assessment(s) to confirm compliance with entitlement approvals, and any applicable conditional use permits would be required for the new development. Further, the City would retain the right to disapprove an application for the new development if the localized impacts of the additional floor area are not mitigated by project design features. G. That The Irvine Company LLC agrees to waive its rights with respect to the development of the other commercial centers within Tustin Ranch, including the ability to charge the owners of the other centers any fees for developing the other centers, provided that the additional development at the other centers is approved by the City through the normal entitlement and development process. H. That a public hearing was duly called, noticed, and held on said application on September 9, 2014, by the Planning Commission. The Planning Commission adopted Resolution No. 4266 recommending that the City Council adopt Ordinance No. 1449. I. That a public hearing was duly called, noticed, and held on said application on October 7, 2014) by the City Council. J. That this project has been determined to be exempt pursuant to California Environmental Quality Act (CEQA) Section 15061(b)(3) in that CEQA applies only to projects which have the potential for causing a significant effect on the environment. If adopted, proposed DA 2014 -001 would allow for the continuation of an assembly use (Community Facilities within a former theater) and allow development rights to be transferred to other in -fill development project sites which would be subject to separate CEQA review. The DA has no possibility for causing a significant effect on the environment; therefore, the project is not subject to CEQA. K. That the proposed Amendment #5 to the East Tustin Development Agreement (DA 2014 -001) will ensure the implementation of the East Tustin Specific Plan, eliminate uncertainty in planning, provide for the Ordinance No. 1449 DA 2014 -001 Page 3 orderly development of the Tustin portion of The Market Place commercial center, allow the installation of necessary or desirable improvements, provide a venue for public and private events, generally serve the public interest within the City and the surrounding region, and otherwise comply with Section 9611 of the Tustin City Code as follows: 1. DA 2014 -001 is consistent with the objectives, policies, general land uses, and programs specified in the General Plan and East Tustin Specific Plan in that the project is consistent with Tustin General Plan Land Use Element Policies 9.1, 9.2, and 9.3, and would further the goals and objectives of the City and the Tustin portion of The Market Place commercial center by providing for orderly development envisioned at the project as follows: Policy 9.1: Ensure the compatibility of development in East Tustin adjacent to existing developed areas. Policy 9.2: Provide for supporting land uses in East Tustin, including neighborhood commercial centers, park and recreational facilities, and schools, to serve the residential community. Policy 9.3: Continue development phasing which provides incremental growth that is coordinated with the existing adjacent development, infrastructure and market opportunities 2. DA 2014 -001 is consistent with the East Tustin Specific Plan. Any future development and uses within the Tustin portion of The Market Place commercial center will be further analyzed at the time of development proposals for consistency with the East Tustin Specific Plan. 3. DA 2014 -001 is in conformity with the public necessity, public convenience, general welfare, good land use practices, and the orderly development of property, in that the establishment of Community Facilities within the former theater space will provide a venue that is available to the public for private and public events; and, allowing the transfer of development rights to other potential development sites would allow for more efficient and rational planning of the Tustin portion of The Market Place commercial center pursuant to the East Tustin Specific Plan. 4. An environmental analysis has been conducted and determined that there will not be any detrimental effect to the health, safety, and welfare with the implementation of DA 2014 -001 in that the Community Facilities will be used during off peak hours, and future potential in -fill development project sites would be subject to Ordinance No. 1449 DA 2014 -001 Page 4 separate review. In addition, DA 2014 -001 complies with all applicable Federal, State, and Local rules and regulations. 5. DA 2014 -001 will have a positive fiscal impact on the City in that it will provide Community Facilities to the City of Tustin and allow for potential development that would provide sales tax and property tax revenue to the City of Tustin. SECTION 2. The City Council hereby approves DA 2014 -001, attached hereto as Exhibit A, and authorizes the City Manager to execute, subject to final approval of the City Attorney, as to form. SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this day of , 2014. E LWY N A. MURRAY Mayor JEFFREY C. PARKER City Clerk Ordinance No. 1449 DA 2014 -001 Page 5 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) ORDINANCE NO. 1449 JEFFREY C. PARKER, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1449 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the 7th day of October, 2014 and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the 21St day of October, 2014 by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: JEFFREY C. PARKER City Clerk Published: