HomeMy WebLinkAbout02 THE IRVINE COMPANY DEVELOPMENT AGREEMENTAgenda Item
AGENDA REPORT UyMaannager
Finance Director N A
MEETING DATE: OCTOBER 7, 2014
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR
SUBJECT: DEVELOPMENT AGREEMENT (DA) 2014 -001 (FIFTH AMENDMENT TO E -AST
TUSTIN DEVELOPMENT AGREEMENT)
SUMMARY:
The project is a proposed agreement between the City of Tustin and The Irvine Company LLC
that would modify the East Tustin Development Agreement (ETDA) to allow the conversion of
up to 23,662 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 Market Place commercial
center.
On September 9, 2014, the Planning Commission adopted Resolution No. 4266, recommending
that the City Council approve the proposed Development Agreement. (Applicants: Peter K.
Pirzadeh, P.E. on behalf of The Irvine Company, and the City of Tustin.)
RECOMMENDATION.
That the City Council introduce and have first reading of Ordinance No. 1449, approving
Amendment, 5 to the E_TDA (DA 2014 -001) between the City of Tustin and The Irvine Company
LLC, to allow the conversion of up to 23,662 square feet of the former Edwards Theater located
at 2982 -300 ['1 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, and set a second reading for the next City Council meeting.
FISCAL IMPACT:
DA 2014 -001 is a partnership between the City and The Irvine Company LLC. The fees
associated with processing the application for the Development Agreement have been paid by The
Irvine Company LLC. Further, 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.
CORRELATION TO THE STRATEGIC PLAN:
The proposed project Iurthers the objectives of the following Strategic Plan goals:
CiFy Council Report
October 7, 2014
DA 2014 -001
Page 2
• Goal A: Economic and Neighborhood Development — The proposed project would
enable business, development, and job opportunities and would enhance the vibrancy
and quality of life in the community.
• Goal A Strategy #6 - The proposed project would provide an opportunity to expand the
City's recreational activities.
• Goal B: Public Safety and Protection of Assets — The proposed project would ensure
Tustin is an attractive, safe and well maintained community n which people feel pride.
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, a,ter the City Council completes the public hearing and
considers the recommendation of the Planning Commission, the City Council may accept,
modify or d sapprove 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 Q,lifornia 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 int -;rest in real property and to provide
for the development of such property and to establish certa'n 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, 1,130,715 square feet of which has been developed. 12,285 square feet of
retail floor area remains available for development, 1,479 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
retail /commercial center entitled for up to 736,575 square feet of floor area, and retail
,mprovements comprising 735,096 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 opera- a sim larly to other
City Council Report
Ociober7, "?014
DA 1014 -001
Page 3
allowed assembly uses, and are a permitted use in the Mixed -Use land use designation of the
Last Tustin Specific Plan.
Figure 1— ETDA Commercial Centers
Development Agreement 2014 -001
DA 2014 -001 (Fifth Amendment to the ETDA) would allow the conversion of up to 23,662
square feet of the former theater complex to Community Facilities (City of Tustin Community
Center a 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 (Exhibit A of Attachment D) 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:
City Council Report
October 7, 2014
DA �1 014 -001
Page 4
• 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 writtt�_n 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 maint-iin the facility and be reimbursed for maintenance costs
through hourly usage fees and adm nistrative 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 p{ y 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 mitiga ed by project design features.
• 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, qu :nceneras, memorial
services, banquets/luncheons, award ceremonies, craft fairs, health fairs, expos, meetings,
trainingstseminarstworkshops, presentations, non - commercial classes, dances, commun -ty
City Council Report
October 7, 2014
DA 2014 -001
Page 5
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 Commun ty 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 pots —ndal
development sites are completed. The attached letter (Attachment B) was prepared to
demonstrate that the number of parking spaces provided will accommoda-e 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 lacilities. 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 stiff 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 23,662 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 Tusm portion of The Market Place commercial
center. However, site development review(s), grading plan(s), build ng permit(s), assessment(s)
to conf�rm compliance with entitlement approvals, and any appl cable conditional use permit.;
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.
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 Tusk n Ranch, with the option to pay
add- tional fees for excess square footage. This restrict.on has hampered the expansion of the
other centers within Tustin Ranch, unless these significant fees are paid to The Inane 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 bel eves 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
City Coundl Report
Oci obey 7, 2014
DA 2 014 -001
Page 6
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.
ENVIRONMENTAL:
Th's 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 saes which would be subject co 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 ACTION:
Following the public hearing on September 9, 2014, the Planning Commission considered the
project and adopted Resolution No. 4266, recommending that the City Council approve the
proposed project (Attachment C).
Please note that some of the square footage numbers included in the Planning Commission
Resolution No. 4266 and proposed Ordinance No. 1449 differ due to refinement In the calculation
of overall theater space (23,445 square feet plus 177 square feet of management office space for
City staff) and recent demolition and construction activity that has occurred within the Tustin portion
of The Market Place while :he Development Agreement was under review. These revisions are
included in DA 2014 -001(E xhibit A of Ordinance No. 1449).
FINDINGS:
A decis on 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 program,
specified in the General Plan and East Tustin Specific Plan in that the project i� consistent
with Tustin General Plan Land Use Element Polices 9.1, 9.2, rt nd 9.3. and would further the
goals and objectives of the City and the Tustin portion of The Market Place commerc _fI
center by providing for orderly development envisioned at the project site, as follows:
Policy 9.1: Ensure the comp4tibiliLy of development in East Tustin adjacent to existing
developed areas.
Policy 9.2: Provide or supporting land uses in East Tustin, including neighborhood
commercial i-enters, 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 ex:sting adjacent development, infrastructure and market opportun,ties
2 DA 2014 -001 is consistent with the East Tustin Specif c Plan. Any future development and
uses within the Tust. n portion of The Market Place commerc al center w,11 be further
City Council Report
October 7, 2014
CA 2014 -001
Page 7
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 pe,-.k 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 City Council approve DA 2014 -001.
Scott Reekstin Elizabeth A. Binsack
Principal Planner Director of Community Development
Attachments:
A. Location Map
B. Parking Analysis
C. Planning Commission Minutes of September 9, 2014, and Resolution No. 4266
D. Ordinance No. 1449 and DA 2014 -001
ATTACHMENT A
LOCATION MAP
LOCATION MAP
DA 2014 -001
2982 -3030 EL CAMINO REAL
r
r
ATTACHMENT B
PARKING ANALYSIS
-° Pirzadeh
f.4 -�
e AS50 f.l AT ES, IYf,.
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 c (949) 851 -1367
Suite 270 f. (949) 851 -5179
Irvine, CA 92614 -4726 w .pi adeh.wm
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,
Peter K. Pirzadeh, P.E.
Principal
c: Ms. Justina Willkom, City of Tustin
Mr. John Murphy, Irvine Company Retail Properties
PAI 1363 TMP- 09032014- EBimack- CommunityFacilityT4aflic ltr.pkp
P a 1lunuge��e.0 T nvlanotion Pkm w, & Engivanng Cmemmety Lima..
ATTACHMENT C
PLANNING COMMISSION MINUTES OF SEPTEMBER 9, 2014
AND
RESOLUTION NO. 4266
I•IIM1jLX.9
REGULAR MEETING
TUSTIN PLANNING COMMISSION
SEPTEMBER 9, 2014
7:00 p.m. CALL TO ORDER
Given INVOCATION /PLEDGE OF ALLEGIANCE: Commissioner Altowaiji
ROLL CALL:
Present: Chairperson Thompson
Chairperson Pro Tern Lumbard
Commissioners Altowaiji, Kozak, Smith
None. PUBLIC CONCERNS:
Approved. CONSENT CALENDAR:
APPROVAL OF MINUTES — AUGUST 26, 2014, PLANNING
COMMISSION MEETING.
RECOMMENDATION:
That the Planning Commission approve the minutes of the August 26,
2014 meeting as provided.
Motion. It was moved by Kozak, seconded by Altowaiji, to approve the August 26,
2014 Minutes. Motion carried 5 -0.
PUBLIC HEARING:
Adopted Reso. 2. DEVELOPMENT AGREEMENT (DA) 2014 -001 (FIFTH
No. 4266, as AMENDMENT TO EAST TUSTIN DEVELOPMENT AGREEMENT)
amended.
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.
APPLICANT: 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
Minutes — Planning Commission — September 9, 2014 — Page 1 of 8
PROPERTY
OWNER: The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
LOCATION: 2982 -3030 El Camino Real
ENVIRONMENTAL:
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 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.
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.
Reekstin Presentation given.
Smith Smith questioned the issue related to the deletion of Section 3.3 from the
DA and wanted confirmation that the City Attorney's perspective on leaving
Section 3.3 in the DA would not compromise the City's position in any way.
Bobak Bobak's response to Smith's questions, generally included: The Irvine
Company's definition is designed to make sure the waiver of the rights is
specifically limited to what is in the DA, which is in Section 3.2; the City
Attorney's Office did not see a need for that section but having it in the DA
does not preclude a recommendation of approval; and Bobak's concern is
having two (2) sections referring to the waiver limitation of the restrictive
covenants; and that there may be some possibility in the future for conflict
on what each provision meant; therefore suggested Section 3.3 be deleted
but The Irvine Company (TIC) wanted extra protection they thought
Section 3.3 gave them.
Altowaiji Altowaiji asked if the other two (2) commercial centers at the Market Place
were owned by TIC. He questioned Section 2.1 of the DA —"Computation
Minutes — Planning Commission — September 9, 2014 — Page 2 of 8
of Maximum Floor Area — Further Development" where it states "No further
EIR, traffic study or similar reports or studies shall be required....."
Reekstin In response to Altowaiji's question, Reekstin stated that TIC does not own
the other two (2) commercial centers.
Thompson Thompson's questions /concerns generally included: He asked Staff to
explain the "notification process "; he requested affirmation that the
Commission's action had to do with what was being presented, "rezoning ",
not looking at what was done in the past; he also asked about the 23,000
plus square foot and the past approvals - would a conditional use permit
(CUP) be necessary and an explanation of the process; future approval on
the parking; the intent of the development; and parking.
Binsack Binsack's response to Thompson's questions /concerns generally included:
She referred to Exhibit A of the DA, which identified a 300' radius for public
hearing notification from the property line (i.e. the building footprint is the
property line); clarified to the Commission the entitlement is not a rezone,
but a development agreement and that the Commission would be
recommending an ordinance approval to the City Council; the occupancy
is not changing, most significant would be the transfer of development
rights; depending on the future project and what the request is, will
determine if a CUP, design review, or variance would be needed; Binsack
gave an example that TIC might not be able to develop all 26,000 square
feet in one (1) quadrant of the center, which may not necessarily have the
adequate parking to support the use and /or they might have an impact on
an intersection; and, more than likely the 26,000 square feet would need to
be dispersed throughout the center.
Bobak Bobak's response to the Commission's questions /concerns generally
included: The discussion with City Staff and TIC - a list or an identification
of where they anticipated developing the additional 23,000 square feet,
which TIC could not provide, and is why a process of future approvals was
included in the DA; reserving the City's right to review City approvals
pursuant to whatever the development standards are in place, including
the power of authority to deny the project if there was an adverse effect to
parking or traffic impacts to offset the development plans; the City can
allow the initial review to assess traffic impacts, per CEQA, and if it
showed there was a need for an EIR and TIC decided not to an
environmental analysis, the City could deny them; however, TIC is not
mandated to do an EIR; and the City anticipates development will be
covered under the East Tustin Specific Plan.
Lumbard Lumbard wanted to clarify to the Commission that the DA is an
amendment to the East Tustin Development Agreement and asked Staff
and legal counsel if the DA contained "report requirements" and if
C additional reports are required.
Bobak In response to Lumbard's question, Bobak stated additional reports are
required only for the additional square footage.
Minutes — Planning Commission — September 9, 2014 — Page 3 of 8
7:28 p.m. Public Hearing opened.
Pirzadeh Peter K. Pirzadeh, representing The Irvine Company, spoke in favor of the
project. He commended Staff for their hard work on the project ( "joint effort
between the City and TIC "). His response to Commission's
questions /concerns generally included: Background information on the
closure of the former theater and the proposed plans of the community
center; CEQA analysis - Mr. Pirzadeh stated all required mitigation
measures under the DA were put into place; parking would not be
impacted since the use of the center would be during non -peak hours;
currently no issue with parking at the Market Place; the use of square
footage would be spread throughout the community center; the
architectural review is important to TIC and the integrity of the
neighborhood would be in line with the architecture; and additional square
footage would bring more revenue, more shoppers, and would be an asset
to the City of Tustin.
Altowaiji Altowaiji was concerned with the restriction on the hours of operation and
asked if an analysis was done. He asked if a statement should be added
to the DA, "except for special events approved by the City ".
Pirzadeh Mr. Pirzadeh's response to Altowaiji's concern generally included: In
keeping with the impact analysis of the Specific Plan, EIR and outside
mitigations would remain in place; the restriction does not prevent staff
from allowing special use /event permit; and protection of keeping the
potential impacts outside the peak hours would keep the DA and integrity
of the analysis and mitigation measures.
Binsack Binsack clarified to the Commission that the City's desire is to have
ongoing programming for these facilities as we do for other facilities
throughout Tustin (i.e. Columbus Tustin Gymnasium, Senior Center, etc.).
There would not be programming for this facility during the peak hours
unless it was a special event. An environmental analysis was not
conducted; therefore, revising the DA could be problematic.
7:42 p.m. Public Hearing closed.
Lumbard Lumbard reminded the Commission that the City was recommending the
Commission approve the item based on the current contract and legal
counsel's advice.
Thompson Thompson referred the Commission to Resolution No. 4266, Page 2, Item
E with regards to hours of operation in order to not cause traffic and
parking impacts which reinforces why, in the future, an EIR is not needed.
In response to Commissioner Altowaiji's comments and desire to modify
Section 2.1, Chair Thompson noted his hesitation about making changes
to the wording or intent in Section 2.1.
Kozak Kozak had concerns with Section 2.1 and suggested removing "no" and
replacing with "may" to then read "may be required ".
Minutes — Planning Commission — September 9, 2014 — Page 4 of 8
Altowaiji Altowaiji requested the Public Hearing be re- opened in order to ask Mr.
Pirzadeh further questions regarding Section 2.1.
7:47 p.m. Public Hearing re- opened.
Pirzadeh Mr. Pirzadeh stated that TIC would not accept changes be made to the
DA. TIC is not in a position to renegotiate or modify the DA.
7:49 p.m. Public Hearing closed.
Kozak Kozak requested further comment from Staff and /or legal counsel
reassuring there would be, if necessary, adequate environmental review
for the expansion.
Bobak Bobak stated the DA does not put the City in a position to be forced to
approve a project that the City believes has unmitigated environmental
impacts.
Binsack Binsack reiterated to the Commission the length of time spent with Staff
and Mr. Pirzadeh regarding Section 2.1. Nothing would preclude the City
from requiring an environmental analysis. Her response to the
Commission's concerns generally included what was previously discussed
by the Commission and Staff. Both the City and TIC have equal
protections.
Bobak Bobak requested a sentence be added to Resolution No. 4266 that the
purpose of the hours of operation restriction is to minimize potential
impacts on parking and circulation within the Market Place.
Motion: It was moved by Smith, seconded by Kozak, to adopt Resolution No. 4266,
as amended. Motion carried 5 -0.
3. ZONE CHANGE 2014 -002 AND CONDITIONAL USE PERMIT
2014 -17, A REQUEST TO REZONE AN EXISTING VACANT
PARCEL AND RESPITE PARK FROM CENTRAL COMMERCIAL
(C2) DISTRICT TO PUBLIC AND INSTITUTIONAL (P &I)
DISTRICT AND APPROVE A CONDITIONAL USE PERMIT FOR A
SMALL PUBLIC PARK
The Successor Agency is requesting to rezone the subject property
from the current C2 Zoning District to P &I District and establish a
Conditional Use Permit (CUP) for a public park, so as to be consistent
with the existing use of the property as a respite park (Figures 3 and
4). No change to the existing overlay zoning of CR and P is proposed
and no new physical improvement or modification to the property is
proposed.
Minutes — Planning Commission — September 9, 2014 — Page 5 of 8
0.01.0 OLl►llis
PROPERTY
OWNER:
LOCATION
ENVIRONMENTAL:
Successor Agency to the Tustin Community
Redevelopment Agency
Attn: Jeffrey C. Parker
300 Centennial Way
Tustin, CA 92780
Successor Agency to the Tustin Community
Redevelopment Agency
Attn: Jeffrey C. Parker
300 Centennial Way
Tustin, CA 92780
450 El Camino Real
This project is exempt pursuant to the California Environmental
Quality Act.(CEQA) Section 15061(b)(3) — the Zone Change will not
have any significant affect to the environment.
RECOMMENDATION:
That the Planning Commission adopt Resolution No. 4265,
recommending that the City Council approve Zone Change (ZC)
2014 -002 changing the zoning of an existing vacant land with
respite park from Central Commercial (C2) District to Public and
Institutional (P &I) District and approve CUP 2014 -17 for a public
park.
Thompson Thompson recused himself since he owns property in close proximity of
this location.
Hutter Presentation given.
Smith Smith asked Staff to clarify that the residential single - family units near the
park are C2 property zoning and asked if the residents were interested with
the potential uses of the park. He also asked if the action taken would not
restrict future use of the park.
Hutter Huffer stated the residents near the park were interested. Any new changes
or additional expanded uses would have to go through additional City
approval (i.e. possible modified CUP).
Lumbard Lumbard clarified to the Commission that the park would be restricted and
must be a park unless zoning is changed.
8:05 p.m. Public Hearing opened.
Jerry Craig, Economic Development & Housing Manager, expressed a
desire of seeing the respite park be zoned accordingly and also asked the
Commission for support.
Minutes — Planning Commission — September 9, 2014 — Page 6 of 8
I
J
C
8:06 p.m. Public Hearing closed.
Kozak Kozak stated the origin of this project was due to the dissolution of the
Redevelopment Agency and it is consistent with ownership zone change and
CUP would achieve zoning and consistency. He also added that it would be
good measure for transparency.
Altowaiji Altowaiji asked if the City had a zone for parks only; questioned why a CUP
is necessary; and, questioned why they cannot be zoned "parks" like other
communities zone them.
Binsack Binsack's response to Altowaiji's questions generally included: The most
typical zone for parks in the City of Tustin is the P &I zone; the developments
in parks vary from park to park and it provides public notification; and in the
future, if the Commission requested to not allow for public notification, the
City could remove CUPs in the parks; however, this would be a policy
decision.
Smith Smith stated the City anticipated potential residential uses around Old Town
area, and having park space is important. He had favorable comments for
Staff and the project.
Lumbard Lumbard had concerns with additional use space on what the Commission
would be considering, and wanted to clarify that the recommendation
presented is only rezoning, not to approve a change to what is existing. He
also had favorable comments for Staff and the project.
Huffer Hutter's response to Lumbard's concern was that there would be no physical
change or improvements to the project.
Motion: Item was moved by Smith, seconded by Altowaiji. Motion carried 4 -0 -1
Thompson abstained.
None. REGULAR BUSINESS
None. STAFF CONCERNS
COMMISSION CONCERNS:
Smith No concerns. Smith attended the League of Cities Annual Conference in
Los Angeles.
Lumbard Lumbard informed the Commission Caterina Lunardi's passing, (founder of
Caterina's Club charity) mother of Bruno Serato, chef and owner of the
Anaheim White House.
Kozak Kozak attended the Grand Opening of the Pepper Tree Park Bocci Ball and
mentioned the 9/11 remembrance.
Altowaiji No comments.
Minutes — Planning Commission — September 9, 2014 — Page 7 of 8
Thompson Thompson also mentioned the 9/11 Patriots Day remembrance. He asked
for everyone to drive safely with school being back in session. Thompson
stated Sam Couch III (VP of Entitlements in M.V.) passed away.
8:17 p.m. ADJOURNMENT:
The next regular meeting of the Planning Commission is scheduled for
Tuesday, September 23, 2014, at 7:00 p.m. in the City Council Chamber
at 300 Centennial Way.
Closed the meeting in honor of the passing of Catarina Lunardi and
Sam Couch III.
' . r
•IfI1 ,A'�
ELIZABETH A. BINSACK
Planning Commission Secretary
C
Minutes — Planning Commission — September 9, 2014 — Page 8 of 8
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 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 Planning Commission of the City of Tustin does hereby resolve as follows:
The Planning Commission finds and determines as follows:
A. That The Irvine Company LLC wishes to convert up to 23,445 square feet of
j 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,
lecture series, educational programs, conferences and childhood
development programs.
1001525.1
Resolution No. 4266
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. The purpose of these hour restrictions, in part, is to
minimize potential parking and circulation impacts within the Tustin Market
Place.
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.
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 gth day of September, 2014.
.r 7 : r. 17MMIPS
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 gch day of September, 2014.
PLANNING COMMISSIONER AYES:
PLANNING COMMISSIONER NOES:
PLANNING COMMISSIONER ABSTAINED:
PLANNING COMMISSIONER ABSENT:
ELIZABETH A. BINSACK
Planning Commission Secretary
Altowaiji, Kozak, Lumbard, Smith, Thompson (5)
v
ATTACHMENT D
ORDINANCE NO. 1449
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
23,662 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 23,662 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,
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.
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. The purpose of these hour restrictions is to minimize
potential parking and circulation impacts within the Tustin Market Place.
F. That the dedication of 23,662 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
Ordinance No. 1449
DA 2014 -001
Page 3
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 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
Ordinance No. 1449
DA 2014 -001
Page 4
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 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.
ELWYN 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 7t day of October, 2014 and was given its second reading,
passed, and adopted at a regular meeting of the City Council held on the 2151 day of
October, 2014 by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
JEFFREY C. PARKER
City Clerk
Published:
EXHIBIT A
TO
ORDINANCE NO. 1449
DEVELOPMENT AGREEMENT - 2014 -001
THIS DEVELOPMENT AGREEMENT 2014 -001 is entered into by the CITY OF
TUSTIN, a California municipal corporation ( "C7TY'�, and THE IRVINE COMPANY LLC, a
Delaware limited liability company ( "OWNER "), 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, 1,130,715 square feet of which has been developed as of the Effective Date. As of
the Effective Date, 12,285 square feet of retail floor area remains available for development,
10,806 square feet of which is available to the Other Centers and 1,479 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 735,096 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:
DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as
follows:
SDH\ 30209 -0429\ 469207.13 82612014 -I-
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
SD11\ 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
Exhibit "D" Reimbursed Costs
Exhibit "E" -- Prohibited Uses
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, 711,474 square feet of the Maximum Floor
Area has been developed on the Property leaving an additional 25,101 square feet of floor area
that may be developed on the Property by OWNER ( "Additional FloorArea "). 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
SDH\ 30209 -0429\ 469207.13 826/2014 -3-
Friday, and to establish and enforce non - discriminatory rules and regulations concerning the use
of the Community Facilities;
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 "CITY Event ") 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, excel) 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
SDH\ 30209 -0429\ 469207.13 8/26/2014 4-
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;
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 OWNER'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 OWNER'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 may be 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
SDI i\30209-0429\469207,13 82612014 -5-
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.
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
O WNER'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.
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 1,479,
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
SDI I\ 3020M,129\469207,13 8/26/2014 -6-
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.
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's 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's 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 (30) days after the
date of such notice (for non - monetary defaults). If, however, a non- monetary default cannot be
cured within such thirty (30) day period, as long as the Defaulting Party does each of the
following:
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
SM 30209 -0429\ 46920213 8262014 -7-
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
OWNER, 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 OWNER 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.
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
SDH\ 30209 -0429\ 469207.13 8/26/2014 -8-
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
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. ffect. 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 Assignment.
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 righis 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.
SDH\ 30209-0429\469207,13 826/2014 -9-
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
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
SDH\ 30209 -0429\ 469207.13 826/2014 -10-
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
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 Headings. 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
SDH\ 30209 -0429\ 469207.13 826/2014 -11-
the validity of any provision of this Agreement shall be filed and tried in the Superior Court of
the County of Orange, State of California, 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.
SDH\ 30209 -0429\ 469207.13 826/2014 -12-
]SIGNATURES CONTAINED ON FOLLOWING PAGE]
SDI I\ 30209-0429\469207.13 8126¢014 -13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first set forth above.
ATTEST:
Name:
APPROVED AS TO FORM:
Office of the City Attorney
C
David E. Kendig, Esq.
"CITY"
CITY OF TUSTIN, California
LIN
Name:
"OWNER"
THE IRVINE COMPANY LLC, a Delaware
limited liability company
By:
Name:
Title:
By:
Name:
SDH\ 30209 -0429\ 469207.13 826/2014 -14-
EXHIBIT "A"
COMMUNITY FACILITIES
[SEE ATTACHED DIAGRAM]
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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 -0439A 469307.13 8/-2612014
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.
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EXHIBIT "D"
REIMBURSED COSTS
SDH\ 30309 -0429A 469207.13 8/262014
Base Charge Additional Charge for
every hour after 4 hours
CLEANING AND SET UP $200 $50 /hour
UTILITIES
$80 /hour
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 -0429A 469207.13 8126/2014
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 j unkyard;
(viii) any industrial manufacturing uses;
(ix) 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;
(xxv) 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.