HomeMy WebLinkAbout11. DISPOSITION & DEVELOPMENT AGREEMENT (DDA) WITH 1C TUSTIN LEGACY, LLCAgenda Item 1 1
Reviewed:
AGENDA REPORT City Manager
Finance Director
MEETING DATE: OCTOBER 20, 2015
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: CITY MANAGER'S OFFICE, ECONOMIC DEVELOPMENT
SUBJECT: DISPOSITION PACKAGE 1 C — DISPOSITION AND DEVELOPMENT
AGREEMENT (DDA) WITH 1C TUSTIN LEGACY, LLC (AKA REGENCY
CENTERS) AND THE CITY OF TUSTIN
SUMMARY
Request for approval a Disposition and Development Agreement (DDA) between the City and
1C Tustin Legacy, LLC aka Regency Centers (Developer) for a 20.96 acre parcel. The City -
owned property is located north of Valencia Avenue, south of Edinger Avenue, east of
Kensington Park Drive, and west of Tustin Ranch Road. The property will be subdivided into two
parcels for the development of: 1) a neighborhood shopping center and, 2) a healthcare
complex.
RECOMMENDATION
Authorize the City Manager to execute the DDA between the City and 1C Tustin Legacy, LLC
subject to any non -substantive modifications as may be deemed necessary and/or
recommended by the City's special real estate counsel or the City Attorney.
FISCAL IMPACT
a) Purchase Price: Upon conveyance of the subject property to the Developer the City shall
receive $18,800,000 which is payable as follows: (a) Healthcare Property $10,500,000
which is inclusive of the Project Fair Share Contribution of $4,754,771, and (b) Retail
Property $8,300,000 which is inclusive of the Project Fair Share Contribution of
$5,550,846.
b) Additional Purchase Price: The Developer will pay to the City an additional $500,000
when the grocery store and the drugstore open for business on the retail parcel (The
Village at Tustin Legacy).
c) Non -Refundable Deposits: During the negotiating period, the City has received from the
Developer a total of $250,000 in non-refundable deposits in the extension of the
negotiating periods.
d) City Negotiating Expenses: Developer will pay all negotiating expenses incurred by the
City including staff expenses and third -party expenses for legal services and other
related services.
Agenda Report— DDA with Regency Centers Acquisition, LLC
October 20, 2015
Page 2 of 3
e) Other Impacts: City will receive additional revenue from the sale of taxable items and a
portion of taxes on property. The City will also have expenses from standard services
provided which will be offset by an annual service tax.
COOREALTION TO THE STRATEGIC PLAN
This action correlates to the City's Strategic Plan for Economic and Neighborhood Development
(Goal A).
DISCUSSION
In 2012, the City solicited proposals on 20.96 acres for the development of a neighborhood
serving shopping center and office development. The Developer responded to the proposal by
submitting a proposal dated May 21, 2012, which was amended by a letter dated July 17, 2012.
On August 7, 2012, the City selected the Developer to enter into negotiations through an
Exclusive Negotiation Agreement (ENA), which has been amended on three occasions to allow
additional time to secure the appropriate anchor tenants on both the retail portion of the site and
the non-retail portion of the site.
Under the terms and conditions of the DDA, prior to conveyance, the property which will be
subdivided into two parcels roughly equal in size. The southern parcel adjacent to Valencia
Avenue will be developed as a neighborhood shopping center anchored by a grocer and a
drugstore. The Developer has executed leases with the grocer (Stater Bros.) and the drugstore
(CVS) for the shopping center parcel. Leases for the balance of the site are contingent upon the
anchor tenant leases being signed first. The northern parcel adjacent to Edinger Avenue will be
transferred to the Healthcare Developer for the construction of a healthcare complex comprised
of a medical office building, support retail uses, and an acute care facility. The Developer has
entered into a purchase and sale agreement with Hoag Memorial Hospital Presbyterian (Hoag)
and SN Properties, LLC (SN) for the development of the healthcare complex. Hoag will develop
a 60,000 square foot medical office building and SN Properties, business partner with Hoag, will
develop two retail pads totaling 15,000 square feet. Regency will be responsible for constructing
all horizontal improvements for both parcels including grading, utilities, and peripheral
landscaping. Under the DDA, the Developer is required to build a minimum of 53,000 square
feet of retail space including a grocery store and drug store (the site is entitled for 98,300 square
feet) and the Healthcare Developer must build a minimum of 75,000 square feet (the site is
entitled for 150,000 square feet). The Planning Commission unanimously approved, with
conditions, the project as generally described on August 25, 2015.
Both the retail parcel and the healthcare parcel are scheduled for conveyance in mid-December
with construction anticipated to commence in the first quarter 2016. The parcels may be
conveyed separately or together depending the ability of the retail developer and the healthcare
developer to meet all closing conditions outlined in the DDA. The City conditions for conveyance
include but are not limited to: a) the Developer(s) must be permit ready so that grading,
horizontal and vertical improvements can be issued upon closing; b) the Developer must
provide proof of financing for the acquisition of the property and to construct all improvements;
Agenda Report— DDA with Regency Centers Acquisition, LLC
October 20, 2015
Page 3 of 3
c) proof of guaranties that all improvements will be completed by the Developer(s) from the
parent entities with the appropriate financial capacity. In the unlikely event, the Developer or the
Healthcare Developer fail to perform under the terms and conditions of the DDA, the City has
reserved the right to take the property back through a right of repurchase or a right of reversion,
as appropriate.
Background of Developers
7C Tustin Legacy, LLC (Retail Developer)
The Developer's parent company and project guarantor, Regency Centers Corporation
(NYSE: REG) is a real estate investment trust (REIT) based in Jacksonville, Florida with a total
market capitalization value 8.9 billion. It is one of the largest operators of grocery-anchored
shopping centers nationally. About 86 percent of its retail centers are anchored by grocers
ranking in the top three of their market. They currently have ownership positions in 336
shopping centers nationally, with 63 centers in California of which 36 properties are located in
southern California.
Hoag Memorial Hospital Presbyterian (Heathcare Developer)
Hoag is a not-for-profit regional health care delivery network in Orange County, California, that
treats nearly 30,000 inpatients and 350,000 outpatients annually. Hoag consists of two acute-
care hospitals, seven health centers and four urgent care centers. Hoag Hospital Newport
Beach, which has served Orange County since 1952, and Hoag Hospital Irvine, which opened
in 2010. Hoag offers a blend of health care services that include five institutes providing
specialized services in the following areas: cancer, heart and vascular, neurosciences, women's
health and orthopedics through Hoag's affiliate Hoag Orthopedic Institute. As of 2013, Hoag had
total assets in excess of 2.48 billion and net assets of in excess of $1.7 billion.
John Buchanan
k Depu Director of Economic Development
CTfy Manager's Office
Attachment: Disposition and Development Agreement (DDA)
TUSTIN LEGACY
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR DISPOSITION PARCEL 1C
by and between
CITY OF TUSTIN
and
1C TUSTIN LEGACY, LLC
DATED: October ___, 2015
TABLE OF CONTENTS
Page
1.Subject and Purpose of Agreement; Parties; Applicable Requirements ........................... 1
1.1Background Regarding MCAS Tustin .................................................................. 1
1.2Description of Development Parcels; Subdivision ............................................... 3
1.3Purpose of Agreement........................................................................................... 3
1.4Parties to the Agreement ....................................................................................... 4
1.5Federal Requirements Applicable to Tustin Legacy ............................................. 5
1.6Local Requirements Applicable to Tustin Legacy ................................................ 6
1.7Not a Development Agreement ............................................................................ 6
1.8ENA Deposits, City Transaction Expenses and Independent Contract
Consideration ........................................................................................................ 6
1.9Non-Refundable Deposits ..................................................................................... 8
1.10Definitions; Attachments ...................................................................................... 8
2.Prohibition Against Transfers and Transfer of Control .................................................... 9
2.1Importance of Developer Qualifications ............................................................... 9
2.2Transfers and Transfers of Control ....................................................................... 9
2.3Remedies for Improper Transfers or Transfers of Control ................................. 21
2.4Changes ............................................................................................................... 22
3.Representations and Warranties ...................................................................................... 22
3.1 ..................................................... 22
3.2Developer Covenants Regarding Representations and Warranties .................... 26
3.3City Representations and Warranties .................................................................. 26
3.4City Covenants Regarding Representations and Warranties .............................. 27
4.Conveyance of Property from City to Developer ........................................................... 27
4.1Conveyance of Property ...................................................................................... 27
4.2Purchase Price ..................................................................................................... 29
4.3Payment of Purchase Price; Healthcare Property Option Payment .................... 29
4.4Escrow and Joint Escrow Instructions ................................................................ 31
4.5- ........................................................ 31
4.6Covenants; Preconditions to Close of Escrow .................................................... 37
5. ....................................................................... 45
5.1Due Diligence Period .......................................................................................... 45
5.2No Financing Contingency ................................................................................. 46
5.3Termination of Agreement .................................................................................. 46
5.4Limited License .................................................................................................. 47
5.5Indemnity ............................................................................................................ 47
5.6Review of Certain Records and Materials .......................................................... 48
5.7Communications with City and Third Parties ..................................................... 48
6.Title; Survey.................................................................................................................... 48
6.1Survey by Developer........................................................................................... 48
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Page
6.2Permitted Exceptions .......................................................................................... 49
6.3Supplemental Title Reports................................................................................. 49
6.4ALTA Policy; Endorsements .............................................................................. 50
7.Close of Escrow .............................................................................................................. 51
7.1Time and Place of Close of Escrow .................................................................... 51
7.2Conditions Precedent to Healthcare Property Close of Escrow.......................... 53
7.3Conditions Precedent to Retail Property Close of Escrow ................................. 59
7.4Additional Closing Requirements ....................................................................... 64
7.5Procedures for Conveyance ................................................................................ 64
8.Development of the Property and Additional Covenants of Developer and City........... 66
8.1Scope of Development ........................................................................................ 66
8.2Timing and Conditions of Project Development ................................................ 68
8.3Land Use Matters ................................................................................................ 70
8.4Design Approval ................................................................................................. 73
8.5Financial Status ................................................................................................... 75
8.6Project Budget Statement .................................................................................... 76
8.7Backbone Infrastructure Improvements .............................................................. 76
8.8Development Covenants ..................................................................................... 78
8.9City Rights of Access.......................................................................................... 79
8.10Disclaimer of Responsibility by City and Exculpation....................................... 79
8.11Local, State and Federal Laws ............................................................................ 80
8.12Liens, Taxes and Assessments ............................................................................ 81
9.Certificate of Compliance ............................................................................................... 81
9.1Certificate of Compliance Defined ..................................................................... 81
9.2Conditions Precedent for Healthcare Parcel Certificate of Compliance ............. 81
9.3Conditions Precedent for Retail Parcel Certificate of Compliance .................... 82
9.4Conclusive Presumption ..................................................................................... 83
9.5Not Evidence ....................................................................................................... 83
9.6City Obligations .................................................................................................. 83
9.7Effect of Certificate of Compliance; Termination of Agreement ....................... 84
10.Indemnification and Environmental Provisions.............................................................. 84
10.1 .............................................................................. 84
10.2 ...................................................... 85
10.3Duration of Indemnities ...................................................................................... 86
10.4Claim Response .................................................................................................. 86
10.5Release Notification and Remedial Actions ....................................................... 86
10.6Conflict with Section 330 and Other Federal Government Obligations ............. 87
10.7Insurance and Indemnification ............................................................................ 87
11.Insurance ......................................................................................................................... 88
11.1Required Insurance ............................................................................................. 88
11.2General Insurance Requirements ........................................................................ 91
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12.Covenants and Restrictions ............................................................................................. 91
12.1Use Covenants and Restrictions.......................................................................... 92
12.2Maintenance Covenant........................................................................................ 92
12.3Additional Purchase Price ................................................................................... 93
12.4Slope Parcel Easement and Landscape Installation and Maintenance
Agreement ........................................................................................................... 94
12.5Duration of Covenants ........................................................................................ 94
12.6Obligation to Refrain from Discrimination......................................................... 94
12.7Deed Restrictions/Covenants Running with the Land ........................................ 95
12.8Priority of DDA and Special Restrictions ........................................................... 95
13.CC&Rs ............................................................................................................................ 95
14.Potential Defaults and Material Defaults ........................................................................ 95
14.1Potential Defaults ................................................................................................ 95
14.2Material Defaults ................................................................................................ 96
14.3Due Diligence Information; Products ................................................................. 99
15.Nonoccurrence of a Condition at Close of Escrow ....................................................... 100
15.1Failure of a Condition to Retail Property Close of Escrow Absent a
Default............................................................................................................... 101
15.2MATERIAL DEFAULT OF DEVELOPER RESULTS IN FAILURE
OF RETAIL PROPERTY CLOSE OF ESCROW ........................................... 102
15.3FAILURE OF HEALTHCARE PROPERTY CLOSE OF ESCROW ............. 103
15.4Failure to Close; Default of City ....................................................................... 104
16.Remedies for Defaults After the Close of Escrow ........................................................ 106
16.1General Remedies ............................................................................................. 106
16.2Lien Rights ........................................................................................................ 107
16.3Right of Repurchase .......................................................................................... 107
16.4The Right of Reversion ..................................................................................... 110
16.5Cooperation of Developer ................................................................................. 114
17.Mortgages and Mortgagee Protection ........................................................................... 114
17.1Transfers to Permitted Mortgagee .................................................................... 114
17.2Acknowledgment by City of Permitted Mortgagee .......................................... 116
17.3Change in Loan Documents .............................................................................. 116
17.4Initial Notice ..................................................................................................... 116
17.5Foreclosure Transfers........................................................................................ 117
17.6Mortgagee Protections ...................................................................................... 117
17.7Failure of Permitted Mortgagee to Cure ........................................................... 119
17.8Condemnation or Insurance Proceeds ............................................................... 119
17.9Loss Payable Endorsement to Insurance Policy ............................................... 119
17.10Subordination .................................................................................................... 120
17.11Constructive Notice and Acceptance ................................................................ 120
17.12Bankruptcy Affecting the Developer ................................................................ 120
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17.13Notice and Cure Rights of City ......................................................................... 121
18.General Provisions ........................................................................................................ 121
18.1Applicable Law; Consent to Jurisdiction; Service of Process .......................... 121
18.2Legal Fees and Costs ........................................................................................ 121
18.3Modifications or Amendments ......................................................................... 122
18.4Further Assurances............................................................................................ 122
18.5Rights and Remedies Are Cumulative; Limitation on Damages ...................... 122
18.6Notices, Demands and Communications between the Parties .......................... 123
18.7Delay ................................................................................................................. 125
18.8Conflict of Interest ............................................................................................ 127
18.9Non-liability of City Officials and City or Developer Employees ................... 127
18.10Inspection of Books and Records ..................................................................... 127
18.11Consents and Approvals ................................................................................... 127
18.12No Real Estate Commissions ............................................................................ 128
18.13Date and Delivery of Agreement ...................................................................... 128
18.14Constructive Notice and Acceptance ................................................................ 128
18.15Survival of Covenants, Representation and Warranties ................................... 129
18.16Construction and Interpretation of Agreement ................................................. 129
18.17Time of Essence ................................................................................................ 130
18.18Fees and Other Expenses .................................................................................. 130
18.19No Partnership .................................................................................................. 130
18.20Binding Effect ................................................................................................... 130
18.21No Third Party Beneficiaries ............................................................................ 130
18.22Counterparts ...................................................................................................... 130
18.23Duplicate Originals, Entire Agreement and Waivers ....................................... 131
18.24Confidentiality .................................................................................................. 131
18.25Proprietary and Governmental Roles; Actions by Parties ................................ 132
18.26Performance of Acts on Business Days ............................................................ 133
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TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT
FOR DISPOSITION PARCEL 1C
THIS TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT FOR
Agreement
DISPOSITION PARCEL October __, 2015 (the
Effective Date
more fully defined in
City
Section 1 TUSTIN LEGACY, LLC, a Delaware limited liability company
Developer
(as more fully defined in Section 1
respective successor and assigns are sometimes referred to in this Agreement individually as a
PartyParties
Subject and Purpose of Agreement; Parties; Applicable Requirements
1..
1.1Background Regarding MCAS Tustin
.
Pursuant to the Defense Base Closure and Realignment Act of
1990, (Part A of Title XXIX of Public Law 101-510; 10 U.S.C. Section 2687 Note), as
Base Closure Law
MCAS Tustin
to close the Marine Corps Air Station- substantially in the
City of Tustin. In 1992, the City was designated as the Lead Agency or Local
Redevelopment Authority for preparation of a reuse plan for MCAS Tustin in order to
facilitate the closure of MCAS Tustin and its reuse in furtherance of the economic
development of the City and surrounding region. The MCAS Tustin Reuse Plan developed
in accordance with this procedure was adopted by the City Council of the City of Tustin on
Reuse Plan
October 17, 1996
A Final Environmental Impact Statement/Final Environmental
Final EIS/EIR
Mitigation Monitoring and Reporting Program for the Final EIS/EIR were adopted by the
City on January 16, 2001. In March 2001, a Record of Decision was issued by the United
Navy
Reuse Plan. Subsequently, a Supplement to the Final EIR/EIS and an Addendum to the
Final EIS/EIR were approved by the City.
In May 2002, the Navy and the City entered into that certain
Agreement between the United States of America and the City of Tustin, California for the
Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated as of
Memorandum of Agreement
May 13, 2002
convey approximately 1,153 acres of MCAS Tustin to the City. On May 13, 2002, a total
of 977 acres, including the Development Parcels (as hereinafter defined) which are the
subject of this Agreement, were conveyed by the Navy to the City by quitclaim deed in
accordance with the provisions of the Memorandum of Agreement. The additional acreage
was made subject to a ground lease by the City from the Navy. The approximately 1,153
acres of MCAS Tustin located within the City of Tustin and either conveyed by the Navy
to the City or subject to ground lease between the Navy and the City is referred to in this
Tustin Legacy
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
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On February 3, 2003, the City adopted an ordinance approving
the MCAS Tustin Specific Plan/Reuse Plan setting forth the zoning and entitlement
framework for future development of Tustin Legacy, which has been subsequently
amended. The intent of the Specific Plan (as defined below) is to conform to and
The City desires to effectuate development of Tustin Legacy
through the sale and development of such property in accordance with applicable federal
and local requirements.
accordance with all City requirements, including implementing redevelopment plans, the
Reuse Plan and the Specific Plan. To this end, pursuant to the Disposition Strategy for the
Master Development Footprint adopted by the City Council in April, 2011 (the
Disposition StrategyRFP
Disposition Package 1C
for a retail and medical office project.
In response to the RFP, Developer submitted a proposal for
purchase and development dated May 21, 2012, as amended by letter dated July 17, 2012
and was selected by the City for further negotiations. Subsequently, on August 7, 2012,
Developer and the City entered into that certain Exclusive Negotiation Agreement, as
subsequently amended, with respect to the land described by Disposition Package 1C (the
ENA
In accordance with the RFP response of Developer, Developer
intends to acquire and develop the Retail Property (as defined below) and to identify and
transfer the Healthcare Property (as defined below) to one or more developers of medical
and healthcare uses. To that end, Developer has entered into the SN PSA (as defined
SN
below) with SN Properties, LLC ( for the Healthcare Property and has proposed that
Hoag
both SN act as the Healthcare
Developer (as defined below) as to the separate parcels to be acquired by each party and
further that Hoag would acquire the portion of the Healthcare Parcel upon which
Medical Office Building
construction of a medical office is
proposed, comprised of Parcel 12 as shown on the Site Plan attached hereto as Attachment
Medical Office Parcel
3
Other Healthcare Parcels
Property . As of the Effective Date, the City has not
approved SN or Hoag or any officer, director, partner or member thereof as Healthcare
Developer. City approval of SN or Hoag or any subsequent Healthcare Developer
proposed by Developer as Approved Healthcare Developer (as defined below) will in all
events be subject to the Transfer provisions described in Section 2.2.3(b) and the financing
provisions set forth in Section 4.6 applicable to Healthcare Developer and the HCD
Guarantor. Prior to a Transfer by Developer to a Healthcare Developer approved by the
City in its sole discretion in accordance with this Agreement, Developer shall be
responsible for and shall undertake all responsibilities of Healthcare Developer under this
Agreement.
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1.2Description of Development Parcels; Subdivision
.
The real property described by Disposition Package 1C is comprised of a portion of
property referred to in the Navy transfer documents as I-H-2 and in the Reuse Plan as Parcel 25,
as subsequently reparcelized, and consists of approximately 20.96 acres of land located in the
City of Tustin, County of Orange, California, as legally described and depicted on
Development Parcels
Attachment 2A
are owned in fee by the City. As part of the transactions contemplated herein, Developer shall
process, on behalf of the City, pursuant to the Subdivision Map Act and the City Code, a parcel
Parcel Map
map subdividing the Development Parcels into 13 numbered parcels and
four (4) lettered lots with the boundaries depicted on the Site Plan attached as Attachment 3 to
this Agreement. Each legally subdivided parcel depicted on Attachment 3 is referred to herein as
Building Pad
to establish by
declaration of Special Restrictions certain covenants, conditions and restrictions with respect to
the Development Parcels and the Property (as defined below), and thereafter, to convey the
Retail Parcel, comprising the portion of the Development Parcels to be conveyed to Developer at
the Retail Property Close of Escrow, and the Healthcare Parcel, comprising the portion of the
Development Parcels to be conveyed to Developer at the Healthcare Property Close of Escrow,
each as depicted on Attachment 2B, in one or two closings in accordance with the terms and
conditions of this Agreement. The Parties currently contemplate that the Healthcare Property
Close of Escrow will occur concurrently with or following the Retail Property Close of Escrow
and, as further set forth in Sections 7.1.1(a) and 7.2.2(l), in no event shall the Healthcare
Property Close of Escrow occur prior to the Retail Property Close of Escrow.
1.3Purpose of Agreement
.
Purpose
. The purpose of this Agreement is (a) to effectuate the
Reuse Plan and the Specific Plan, in accordance with the terms and conditions set forth
therein and in the Memorandum of Agreement and the Federal Deed, through disposition
and development of portions of Tustin Legacy as further described in this Agreement and
(b) to provide for the sale and conveyance of the Property (as defined below) and its
maintenance and use in accordance with the requirements of this Agreement.
Project Definition
. This Agreement further provides for
Project
development by Developer on t
construction and installation of the following Improvements:
the Horizontal Improvements required to be constructed or
installed on or in connection with the development of the Property, as further described in the
Scope of Performance attached to this Agreement as Attachment 8 and/or depicted on
Attachment 9 and
Vertical Improvements
the consisting of:
Retail Vertical Improvements
neighborhood commercial shopping center depicted on the Scope of Development and proposed
to contain approximately 98,300 GBA (as defined below) for Retail Uses, but which shall in all
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Minimum Retail Vertical
events include the following Vertical Improvements (t
Improvements
: 53,000 GBA for Retail Uses including a single grocery store of not less than
40,000 GBA, and a drug store (which may include a drive-through pharmacy window); provided
that construction of a day care center and/or car wash shall not be included in the calculation of
GBA comprising the Minimum Retail Vertical Improvements, and
Healthcare Vertical Improvements
Scope of Development and which shall include development of Buildings containing at least
60,000 GBA for Medical Uses and 15,000 GBA for Medical Uses and/or Healthcare Parcel
Minimum Healthcare Vertical Improvements
Retail Uses
additional 75,000 GBA for Medical Uses, for a total of not more than 150,000 GBA, parking and
related Vertical Improvements. The Improvements shall be designed and constructed in a
manner consistent with the Specific Plan, the Reuse Plan, the Approved Plans, the Entitlements
and all applicable Governmental Requirements. Nothing contained in this Agreement shall
obligate Developer to construct any Improvements solely because they are identified in the
Scope of Development or in any of the items identified in the preceding sentence, provided that a
failure of either Developer or Healthcare Developer, as applicable, to commence or Complete in
accordance with the terms of Section 8.2 of this Agreement, the portions of the Minimum
Improvements to be carried out by it shall be a Default under this Agreement.
City Benefits
. The disposition of the Property, the development
and Completion of the Project pursuant to this Agreement, and the fulfillment generally of
this Agreement, are in the vital and best interests of the citizens of the City and the health,
safety and welfare of its residents, and are in accord with the public purposes and
provisions of applicable federal, state, and local laws and requirements.
1.4Parties to the Agreement
.
City
. The City is a municipal corporation of the State of
California. The City has been recognized as the Local Redevelopment Authority by the
Office of the Secretary of Defense for the former Marine Corps Air Station, Tustin, for
City
of Tustin and each assignee or s
The City Council shall have the right, in its sole discretion, to assign its rights and
obligations to any agency or instrumentality of the City, provided that in the event the City
exercises such right to assign any of its proprietary obligations, such assignment shall not
relieve the City of any responsibility for its governmental
obligations, if any, under this Agreement. The principal office of the City and mailing address is
300 Centennial Way, Tustin, California 92780.
Developer
. Developer is 1C Tustin Legacy, LLC, a Delaware
limited liability company that is wholly owned and Controlled by Regency Centers
REG
Developer
Attachment 1. The principal office of 1C Tustin Legacy, LLC and mailing address is 915
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Wilshire Blvd., Suite 2200, Los Angeles, CA 90017. 1C Tustin Legacy, LLC specifically
Initial Developer
Relationship of City and Developer
. It is hereby
acknowledged that the relationship of the City and Developer is neither that of a
partnership nor that of a joint venture. Notwithstanding any provision of this Agreement,
Developer is not, and shall not be deemed to be, the agent of the City for any purpose, and
shall not have the power or the authority to bind the City to any contractual or other
obligation. Prior to each Close of Escrow, with respect to portions of the Property not yet
acquired by Developer, Developer may only characterize itself to third parties as the
prospective purchaser and/or developer of the Property. Developer shall not at any time
hold itself out to the City or to any other third party as an agent of the City, and shall not,
by any act or omission, mislead any third party into believing, or allow any third party to
continue in the mistaken belief, that Developer is an agent of the City or has the power or
authority to bind the City to any contractual or other obligation.
Healthcare Developer
. Developer shall, concurrently with and
as a condition subsequent to the Healthcare Property Close of Escrow, assign its rights and
obligations under this Agreement and the Other Agreements with respect to development
of the Healthcare Vertical Improvements on the Healthcare Parcel to one or more
Approved Healthcare Developers. Such assignment shall be carried out in accordance with
the requirements of this Agreement, including by execution by Developer and Healthcare
Developer of an agreement in substantially the form and substance of the Healthcare
Assignment and Assumption Agreement attached hereto as Attachment 16B or as
HCD Assignment
otherwise approved by the City in
which Healthcare Developer shall assume and agree to comply with the terms of this
Agreement
this Agreement including, unless otherwise agreed by Developer and Healthcare Developer
Property, construction of the Healthcare Vertical Improvements, and use and maintenance
of the Healthcare Project and the Improvements located thereon and all matters related
thereto. Without limiting any of its approval rights under this Agreement, the City agrees
to cooperate with Developer in connection with execution of an HCD Assignment with any
Approved Healthcare Developer.
1.5Federal Requirements Applicable to Tustin Legacy
.
Federal Economic Development Conveyance
. The Parties
acknowledge and agree that this Agreement is entered into as part of an economic
development conveyance of Tustin Legacy to the City pursuant to the Base Closure Law,
the Memorandum of Agreement and the terms and conditions of the Federal Deed,
including the Environmental Restriction pursuant to California Civil Code Section 1471
contained therein. Notwithstanding any provision to the contrary contained in this
Agreement, this Agreement is and shall be subject to the terms and conditions of the
Memorandum of Agreement and the Federal Deed and the rights, obligations and remedies
of the Federal Government thereunder, and nothing contained in this Agreement shall be
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construed in a manner that is inconsistent with the rights, obligations and remedies of the
Federal Government thereunder.
Memorandum of Agreement and Federal Deed
.
Notwithstanding anything in this Agreement to the contrary, if any provision of this
Agreement contradicts, modifies or in any way changes the terms of the Memorandum of
Agreement or the Federal Deed, the terms of the Memorandum of Agreement and Federal
Deed shall prevail and govern.
1.6Local Requirements Applicable to Tustin Legacy
.
This Agreement is subject to all Governmental Requirements, including the General Plan,
the Specific Plan, the City Code, the Reuse Plan and any redevelopment plan applicable to the
Property; provided, however, that the City acknowledges that, concurrently with the execution of
DA
relating to the Property and that any provisions of this Agreement requiring Developer or the
Property to comply with any Governmental Requirements imposed by the City relating to
entitlements or development of the Property shall be subject to the terms of the DA and in the
event of any inconsistency between such Governmental Requirements and the DA, the
Governmental Requirements required to be imposed pursuant to the DA shall control.
1.7Not a Development Agreement
.
This Agreement is not a development agreement as provided in Government Code
Section 65864 and, as further set forth in Section 8.3.4, is not a grant of any entitlement, permit,
land use approval, or vested right in favor of Developer, the Project or the Property. The City
shall use good faith efforts, within applicable legal constraints and consistent with applicable
City policies, to take such actions as may be necessary or appropriate to effectuate and carry out
this Agreement in a timely and commercially reasonable manner.
1.8ENA Deposits, City Transaction Expenses and Independent Contract
Consideration
.
ENA Deposits and ENA Transaction Expenses
. Pursuant to
the ENA, Developer has paid to the City deposits totaling Three Hundred and Fifty
ENA Deposit)
Thousand Dollars ($350,000.00) to be
ENA Transaction
and City staff costs
Expenses
.
City Costs Deposit; Independent Consideration
. Upon the
execution of this Agreement by the Parties, the funds remaining in the ENA Deposit shall
effectiveness of this Agreement, deliver to the City additional funds sufficient to bring the
City Costs Deposit
City Costs Deposit to $100,000.00 . The City Costs Deposit
shall be deposited by the City in an account in a bank or trust company selected by the
City. If any interest is paid on such account, such interest shall accrue to any balances in
the account for the benefit of Developer and as additional security for Developer
obligations hereunder. One Hundred Dollars ($100.00) of the City Costs Deposit shall be
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Independent Contract Consideration
retained by If at any time prior to the
earlier of (a) the Healthcare Property Close of Escrow or (b) the Healthcare Property
Outside Closing Date, the amount of funds in the City Costs Deposit account is depleted
below Fifty Thousand Dollars ($50,000), Developer shall be required to pay to the City
each time an additional Fifty Thousand Dollars ($50,000) which shall be credited to the
City Costs Deposit. Each such payment shall be deposited by the City into the City Costs
Deposit account and shall be applied to City Transaction Expenses in accordance with the
provisions of Section 1.8.2.
Payment of Transaction Expenses
. Developer shall pay (a) all
ENA Transaction Expenses incurred prior to the Effective Date and remaining unpaid as of
the Effective Date and (b) all DDA Transaction Expenses incurred by the City during the
term of this Agreement, whether arising with respect to matters or incurred by the City
City Transaction
prior to or following each Close of Escrow (collectively, t
Expenses
. The City Costs Deposit has been established to fund the City Transaction
Expenses and may be used by the City for such purpose, and shall be depleted accordingly.
Immediately upon incurring any City Transaction Expenses or receipt of an invoice from
third parties for same, the City shall have the right to deduct the amounts due it on account
thereof from the City Costs Deposit. In addition, to the extent then unpaid, at each Close of
Escrow or at the earlier termination of this Agreement, the City shall be entitled to deduct
from the City Costs Deposit the payment of all City Transaction Expenses then unpaid and
Developer shall, as a condition to Close of Escrow, pay the full amount of City Transaction
Expenses incurred by the City to and including the date of such Close of Escrow. Within
thirty (30) calendar days following the earlier of (x) the Healthcare Property Close of
Escrow or (y) the Healthcare Property Outside Closing Date, the remaining amount of the
City Costs Deposit then held by the City, if any, shall be promptly returned by the City to
Developer, provided that the return of such funds shall not terminate the obligations of each
of Developer and Healthcare Developer to pay all City Transaction Expenses arising or
incurred prior to issuance of the Certificate of Compliance for its respective portion of the
Project. Developer shall pay the outstanding amounts due with respect to City Transaction
Expenses to the City within thirty (30) calendar days following receipt of an invoice from
the City therefor, provided that the City shall first apply the amount of the City Cost
Deposit, if any, then held by it in satisfaction of such invoice, and shall reflect the amount
of such credit on the invoice.
Payment of City Transaction Expenses; Exclusions from City
Transaction Expenses
. Determination of costs, expenses, and fees constituting City
Transaction Expenses shall be made by the City in its sole discretion and Developer shall
upon request be entitled to receive notices from the City setting forth amounts constituting
City Transaction Expenses and related non-confidential documents evidencing such
expenses. If Developer reasonably objects to any such amounts and the City agrees, in its
sole discretion, that such objection is reasonable, the City shall cooperate with Developer to
investigate such amounts and to seek an appropriate adjustment or reduction in such
amounts. Notwithstanding anything to the contrary in this Agreement, the City and
Developer hereby acknowledge and agree that the City Transaction Expenses do not
include: (a) any fees or deposits required of Developer for processing entitlement
applications; (b) any fees or costs for complying with provisions of CEQA or its State
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CEQA implementing regulations or other matters identified in Section 8.3.8; (c) any costs
to review or approve any applications or submittals by Developer to the City in connection
with the Project; (d) the Development Costs, Project Fair Share Contribution or any other
development impact fees, exactions or other costs imposed as conditions of approval with
respect to the Entitlements or pursuant to the Other Agreements; (e) the Marketing Fees;
(f) fees incurred pursuant to Section 2.2.6 or (g) any other matters in this Agreement that
expressly require Developer to pay, at its sole cost, for the expenses in connection with
such matters, other than as expressly set forth in this Section 1.8. The obligation of
Developer to pay for the City Transaction Expenses pursuant to this Section 1.8 shall not
diminish or limit Developers obligation to pay for any of the costs in the preceding
sentence.
1.9Non-Refundable Deposits.
Pursuant to the ENA, Developer has paid to the City
certain non-refundable deposits also totaling Three Hundred and Fifty Thousand Dollars
($350,000) as consideration for various extensions of the term of the ENA by the City, of which:
Two Hundred and Fifty Thousand Dollars ($250,000) is agreed
by the Parties to be fully non-refundable to Developer and vested in the City and shall not be:
(i) deemed consideration under this Agreement, (ii) made applicable to the Base Purchase Price
or the Additional Purchase Price or (iii) refunded or refundable by the City for any reason,
Non-Refundable ENA Deposit
including for Default by the City under this Agreement
Applicable
ENA Deposit
shall be retained by the City in all events, but shall be applied by the City as a
credit against the Retail Property Base Purchase Price.
1.10Definitions; Attachments
.
Definitions
. Capitalized terms used in this Agreement, including
in the Attachments attached hereto, unless otherwise defined in this Agreement, shall have
the respective meanings specified in the Glossary of Defined Terms attached hereto as
Attachment 1. Unless otherwise indicated, references in this Agreement to sections,
paragraphs, clauses, exhibits, attachments and schedules are to the same contained in or
attached to this Agreement and all attachments and schedules referenced in this Agreement
are incorporated in this Agreement by this reference as though fully set forth in this
Section.
Substantially in the Form and Substance
. Wherever used in
referenced document, when compared to the previously approved form of document, is
consistent in all material respects, and none of the modifications in the referenced
document diminish a Partys rights or increase such Partys obligations thereunder, as
determined by the Party for whose benefit the condition is written, in its sole discretion.
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Prohibition Against Transfers and Transfer of Control.
2.
2.1Importance of Developer Qualifications
.
Developer represents and agrees that its undertakings pursuant to this Agreement are for
the purpose of development of the Project and not for speculation in land holding. Developer
further recognizes that the qualifications and identity of Initial Developer and REG, its
Controlling Person, and Developers agreement to construct the Project without encumbering the
Property in any way including, prior to Transfer Approval End Date, without a Mortgage (unless
such Mortgage is a Permitted Mortgage expressly permitted by this Agreement with respect to
portions of the Other Healthcare Parcels only (and specifically excluding the Medical Office
Parcel)), are of particular concern to the City and community and in light of the following:
The importance of the development of the Development Parcels
and Tustin Legacy to the general welfare of the community;
The fact that a Transfer of Control is for practical purposes a
transfer of rights and obligations under this Agreement or the Property; and
That it is because of the qualifications and identity of Initial
s Controlling Persons that the City is entering
into the Agreement with Developer.
2.2Transfers and Transfers of Control
.
Restrictions on Transfers
. For the reasons set forth in
Section 2.1, Developer, on behalf of itself and all Successor Owners, acknowledges and
agrees as follows:
Any Transfer or Transfer of Control in contravention of this
Section 2 shall be a Material Default under this Agreement in accordance with Section 14.2.3.
Except as set forth in Section 2.2.2, prior to the Transfer
Approval End Date applicable to a Parcel, no Transfer or Transfer of Control with respect
thereto, or with respect to the ownership thereof or with respect to this Agreement shall be valid
or have any force or effect unless the City shall have provided its prior written consent thereto in
accordance with the requirements of this Section and such Transfer has been carried out in
accordance with the requirements of this Section 2.
No Person shall acquire any rights or powers under this
Agreement except as set forth in this Section 2.
Notwithstanding any Transfers and/or Transfers of Control,
Developer on behalf of itself and each Successor Owner agrees that: (i) neither Developer nor
Healthcare Developer, as applicable, shall be released with respect to matters for which it
remains liable pursuant to Sections 2.2.2(a) and 2.2.2(b) and for the Ongoing Matters, and
(ii) unless it is released by the City as set forth in Section 2.2.3(a)(iv) or 2.2.3(b)(v) or as
otherwise set forth in this Agreement or agreed to by the City in writing, each Developer and
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Healthcare Developer shall each remain fully liable for their respective obligations as Developer
and Healthcare Developer under this Agreement and the Other Agreements for such period as
each is Developer or Healthcare Developer, as applicable, under this Agreement and for the
Additional Liability Period and that Developer and Healthcare Developer shall each remain
liable with respect to each and every term of this Agreement expressly surviving termination of
this Agreement for the period described herein.
Permitted Transfers
. The following Transfers shall be
Permitted Transfers
hall not be subject to the Citys prior written consent;
provided that in the case of clause (a) and (b) below, Developer or Healthcare Developer,
as applicable, shall provide the City with written notice of such transaction not less than ten
(10) calendar days prior to its occurrence, and shall provide, no later than ten (10) calendar
days following such Transfer, (x) an original certificate executed by an officer of the
Transferee in favor of City as to the matters set forth in this Section 2.2.2 below and (y) an
original certificate executed by an officer of the transferor that the conditions set forth in
the applicable portion of this Section 2.2.2 have been satisfied and reaffirming the ongoing
obligations of such party, as applicable, under this Agreement and the Other Agreements,
notwithstanding such Permitted Transfer:
Any Transfer by Developer to a Developer Affiliate or by
Healthcare Developer to a HCD Affiliate; provided that:
the City shall be entitled to look to the Person approved by
the City that was the Developer or Healthcare Developer, as applicable, prior to such Transfer
(with the right, but not the obligation, to additionally look to the last Developer or Healthcare
Developer approved in writing by the City) to fully comply with this Agreement as though there
had not been a Transfer, and to cause the Developer Affiliate or HCD Affiliate, as applicable, to
comply with this Agreement;
REG is, directly or indirectly, the Controlling Person of the
Developer Affiliate that is the Transferee or, if applicable, Healthcare Guarantor is, directly or
indirectly, the Controlling Person of the HCD Affiliate that is the Transferee;
if previously executed and delivered to the City, the Retail
Equity Funding Letter, the REG Guaranty, the HCD Equity Funding Letter and/or the HCD
Guaranty shall remain in full force and effect following such Transfer without any defaults
thereunder and without any modifications thereto other than modifications that have been
consented to by the City in its sole discretion;
neither Developer nor Healthcare Developer shall be in
Potential Default or Material Default under this Agreement at the time of such Transfer;
the Transferee at the time of the Transfer shall have
expressly assumed for itself and its successors and assigns, and for the benefit of the City, by
instrument substantially in the form and substance of the Assignment attached as
Attachment 16Aor as otherwise approved by the City in its sole discretion the obligations
applicable to the property being acquired, including the covenants set forth in Section 8 of this
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Agreement; with respect to a Developer Transfer, or an HCD Assignment, with respect to a
Healthcare Developer Transfer, or otherwise in a form acceptable to the City in its sole
discretion, acknowledged and Recorded, all the rights and obligations of Developer and/or
Healthcare Developer, as applicable, under this Agreement and the Other Agreements arising
from and after the date of such Transfer and the Transferee shall agree to assume and to be
subject to all the conditions and restrictions to which Developer and/or Healthcare Developer, as
applicable, is subject by reason of this Agreement and the Other Agreements; and
the Transferee shall certify in writing for the benefit of the
City as to the truth and correctness, as of the effective date of the assignment, of the
representations and warranties set forth in Section 3.1 to the knowledge of its specified
Developer Knowledge Parties.
Any Transfer of Control by Developer to a Developer Affiliate
or by Healthcare Developer to a HCD Affiliate; provided that:
the City shall be entitled to look to the Person that is
Developer or Healthcare Developer, as applicable, prior to such Transfer of Control to fully
comply with this Agreement as though there had not been a Transfer of Control;
REG is, directly or indirectly, the Controlling Person of
such Developer Affiliate or, if applicable, Healthcare Guarantor is, directly or indirectly, the
Controlling Person of such HCD Affiliate;
if previously executed and delivered to the City, the Retail
Equity Funding Letter, the REG Guaranty, the HCD Equity Funding Letter and/or the HCD
Guaranty, as applicable, shall remain in full force and effect following such Transfer of Control
without any defaults thereunder and without any modifications thereto other than modifications
that have been consented to by the City in its sole discretion; and
neither Developer nor Healthcare Developer shall be in
Potential Default or Material Default under this Agreement at the time of such Transfer of
Control;
Any Transfer pursuant to a Space Lease; provided that for each
Space Lease entered into by Developer prior to the Retail Approval End Date, Developer shall
use its commercially reasonable efforts to include in such Space Lease a covenant from the
occupant under such lease to fully stock and open for business within the leased space for one (1)
day;
Any Transfer of portions of the Property to the City and/or grants
of easements affecting the Development Parcels to the City, to any public or quasi-public entity
or to any utility, as necessary or desirable for the development thereof;
Any temporary license or other grant of access rights to the
Development Parcels to the City, a Developer Affiliate or HCD Affiliate, and/or to any other
third party, as necessary or desirable for the development of the Property; or
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Any Transfer that is a grant of a security interest in the
Healthcare Project, the Healthcare Parcel, the Healthcare Property or any Improvements existing
or to be constructed thereon, or any portion thereof, provided in each case that such security
interest shall be permitted only if it is a Permitted Mortgage made with a Permitted Mortgagee
and pursuant to and in accordance with Section 17 including the requirements for City consent
set forth therein; provided that, for avoidance of doubt, under no circumstances may the
Developer encumber the Retail Property, the Retail Parcel, the Medical Office Parcel, or any
portion thereof or Improvements thereon with any Mortgage (regardless of whether such
Mortgage is a Permitted Mortgage) prior to the Transfer Approval End Date applicable to such
Parcel.
Provisions Applicable to Transfers and Transfers of Control
Other than Permitted Transfers
. Except for Permitted Transfers described in
Section 2.2.2, prior to any Transfer or any Transfer of Control, Developer and Healthcare
Developer, as applicable, shall comply with the requirements of this Section 2.2.3.
Section 2
Section 2.2.3(b) applies to the Transfer of the entirety
ct to the Healthcare Developer.
Section 2.2.3(c) applies to Transfers (whether by Developer or Healthcare Developer) of
Building Pads to End Users. Section 2.2.3(d) applies to Transfers of Leasable Space
pursuant to a Space Lease. References below to Transfers of the Project shall apply to and
: this
Agreement, the Improvements, the Property or the Project. References below to Transfers
of the Healthcare Project under Section 2.2.3(b) shall apply solely
Transfer to Healthcare Developer of the Healthcare Project and shall include a Transfer as
part of such action
Improvements, the Horizontal Improvements on the Healthcare Parcel, the Healthcare
Property or the Healthcare Project.
Transfer of Entire Interest
. The following shall apply with
Project and Transfer of Control by either Developer or Healthcare Developer (but shall
Project and the Healthcare Property to a Healthcare Developer, which shall be governed by
Section 2.2.3(b)):
Prior to any Transfer or Transfer of Control governed by
this Section, Developer or Healthcare Developer, as applicable, shall obtain the prior written
consent of the City to such Transfer or Transfer of Control which consent shall be granted or
denied in the Citys sole discretion.
In order to provide the City with information necessary to
inform its right to consent to a Transfer or Transfer of Control pursuant to this Section,
Developer or Healthcare Developer, as applicable, shall provide to the City at least twenty (20)
Business Days prior to the date of any proposed Transfer or Transfer of Control:
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The names and biographies of the proposed
Transferee and its principals or the new Controlling Person, as applicable;
All of the material proposed terms of the Transfer
or Transfer of Control;
In the case of a Transfer, current audited financial
statements of the proposed Transferee (or financial statements certified by an officer or
authorized representative of the proposed Transferee, if the proposed Transferee does not have
audited financial statements);
In the case of a Transfer of Control, current audited
financial statements of the proposed new Controlling Person (or financial statements certified by
an officer or authorized representative of the proposed new Controlling Person, if the proposed
new Controlling Person does not have audited financial statements);
The names of all Persons who Control the proposed
Transferee or the new Controlling Person, as applicable;
In the case of Transfer, a certificate of the proposed
Transferee generally in the form of Attachment 18B and additionally describing other real estate
projects developed by, leased by, or sold by the proposed Transferee in California over the
preceding five (5) year period, the dates of involvement by the proposed Transferee with such
projects, such certificate to be made by the manager, president or other Person with appropriate
authority from the proposed Transferee to do so and if requested by the City, a certificate
generally in the form of Attachment 13C;
In the case of a Transfer of Control, a certificate
generally in the form of Attachment 13C by the proposed new Controlling Person and
additionally describing other real estate projects developed by, leased by, or sold by the proposed
new Controlling Person in California over the preceding five (5) year period, the dates of
involvement by the proposed new Controlling Person with such projects, such certificate to be
made by the manager, president or other Person with appropriate authority from the proposed
new Controlling Person to do so; and
Such other relevant information as the City may
request in its sole discretion in connection with its consent rights under this Agreement
(including information analogous to the information described in Sections 4.6.1 through 4.6.8,
Sections 8.5.1, 8.5.2 and Section 8.6 of this Agreement), which may include evidence that the
proposed Transferee or proposed new Controlling Person has sufficient financial capacity to
perform the obligations of Developer or Healthcare Developer, as applicable, under this
Agreement and without utilizing a Mortgage, unless use of a Permitted Mortgage is specifically
authorized by Sections 4.6.4(c) and 17 of this Agreement.
pursuant to this Section 2.2.3(a), the proposed Transferee at
the time of the Transfer shall have expressly assumed for itself and its successors and assigns,
and for the benefit of the City, (A) in the case of a Transfer by Developer of its entire interest in
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the Project, pursuant to Assignment, or (B) in the case of a Transfer by Healthcare Developer of
its entire interest in the Project, pursuant to HCD Assignment, in each case acknowledged and
Recorded, all the rights and obligations of Developer or Healthcare Developer, as applicable,
under this Agreement and the Other Agreements arising from and after the date of such Transfer
with respect to the assigned interests in the Project, and the proposed Transferee shall agree to be
subject to all the conditions and restrictions to which Developer or Healthcare Developer, as
applicable, is subject by reason of this Agreement and the Other Agreements with respect to the
assigned interests in the Project, and shall certify in writing for the benefit of the City as to the
truth and correctness, as of the effective date of the assignment, of the representations and
warranties set forth in Section 3.1 to the knowledge of its specified Developer Knowledge
Parties.
Upon a Transfer of all of Developers or Healthcare
ection 2.2.3(a) to a
tion, and the provision by the
Transferee of the following items, Developer or Healthcare Developer, as applicable, shall be
released from its obligations under this Agreement and the Other Agreements arising from and
after the date of such Transfer; provided that in no event shall Developer or Healthcare
Developer be released with respect to the Ongoing Matters:
An assumption in writing by a Transferee of all
obligations of the assignor under this Agreement and the Other Agreements (including the
respective obligations to deliver a Retail Equity Funding Letter or an HCD Equity Funding
Letter and to otherwise comply with the requirements of Section 4.6, as applicable) pursuant to
an Assignment as described in Section 2.2.3(a)(iii), including with respect to a Transfer of the
Retail Property, an assumption in writing by Transferee of the Healthcare Transferor
Obligations; and
A guaranty made by a Person with assets meeting
the requirements of the City and sufficient, in the determination of the City in its sole discretion,
to secure the development, construction and maintenance obligations of Developer or Healthcare
Developer, as applicable, under this Agreement, which shall be: (1) in the case of a Transfer by
Developer of its entire interest in the Project, substantially in the form and substance of the
instrument attached hereto as Attachment 14A or otherwise in a form acceptable to the City in its
sole discretion and meeting the requirements of Section 4.6.3 and (2) in the case of a Transfer by
Healthcare Developer of its entire interest in the Project, substantially in the form and substance
of the instrument attached hereto as Attachment 14B or otherwise in a form acceptable to the
City in its sole discretion and meeting the requirements of Section 4.6.5.
Transfer to Healthcare Developer
. Notwithstanding anything
in this Agreement to the contrary, following the Healthcare Property Close of Escrow, Developer
shall have the right and, as a condition to the Healthcare Property Close of Escrow, the
obligation, , the
Healthcare Property and the Improvements thereon to one or more entities affiliated with or
acting on behalf of a Healthcare User to develop improvements to be occupied by a Healthcare
Healthcare Developer
User (such entity or entities shall be referred to herein as in
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accordance with the following requirements and with the prior written consent of the City, which
may be granted or denied in the sole discretion of the City:
The City shall have provided its prior written approval, in
Approved
its sole discretion, to one or more Persons proposed
Healthcare Developer
the extent the proposed Transferee has not previously been
approved by the City prior to the Effective Date, in order to provide the City with information
necessary to inform its right to consent to a Transfer of the foregoing interests to a Healthcare
Developer, Developer and the proposed Healthcare Developer shall provide to the City, not less
than twenty (20) Business Days prior to the date of the proposed Transfer, the biographies of the
principals of the proposed Healthcare Developer, the information described in
Section 2.2.3(a)(ii)(A) through (F) with respect to the proposed Healthcare Developer and the
information required by Sections 4.6.4, 4.6.5 and 4.6.8;
The Citys approval rights with respect to each proposed
Healthcare Developer and the proposed Transfer to such Person shall include the rights to:
Assure that the Healthcare Property Transferor and
the proposed Healthcare Developer have met all requirements of this Agreement with respect to
such Transfer, including execution of the HCD Agreements and the HCD Assignment;
Confirm the financial capacity of the proposed
Healthcare Developer and the HCD Guarantors;
Approve the Healthcare Financing Plan and all
information provided by the proposed Healthcare Developer pursuant to Sections 4.6.4, 4.6.5 and
4.6.8;
Approve the Healthcare Guarantor(s) and the HCD
Guaranty pursuant to Sections 4.6.5 and 4.6.7; and
Approve the terms of the Transfer, including the
terms of the HCD Agreements and all documents executed in connection therewith by the
proposed Healthcare Property Transferor and Healthcare Developer and to assure that the same
are consistent with the Financing Plan and Healthcare Financing Plan approved by the City in
accordance with Section 4.6 and the requirements of this Section 2.2.3(b).
respect to the Healthcare Project shall be concurrently Transferred to one or more Approved
Healthcare Developer(s), together with all right, title and interest of Developer in and to the
Healthcare Project.
The Parties agree that Healthcare Property Transferor shall
assign and Healthcare Developer shall assume all rights and obligations of Developer related to
the Healthcare Project existing or to be constructed thereon including the development of
Healthcare Vertical Improvements on the Healthcare Parcel, and those additional corresponding
rights and obligations under this Agreement and the Other Agreements, including the following:
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Healthcare Developer, by HCD Assignment
acknowledged and Recorded, shall assume from and after the date of such Transfer the rights and
obligations of the Developer under this Agreement and the Other Agreements with respect to the
Healthcare Project, the Healthcare Property and the Improvements thereon including: (i) the
obligations to construct and Complete the Healthcare Horizontal Improvements and the
Minimum Healthcare Vertical Improvements on the Healthcare Parcel, and (ii) the obligations
retained by the Healthcare Property Transferor with respect to the construction and Completion
of the Minimum Horizontal Improvements on the Healthcare Parcel and construction and of the
work described in the Slope Parcel Easement and Landscape Installation and Maintenance
Agreement, which the Healthcare Developer shall be obligated to carry out only to the extent
Developer fails to perform such obligations in a timely manner accordance with the Schedule of
Performance, and with respect to the foregoing, shall be subject to all of the other terms and
conditions of this Agreement, as further provided in such HCD Assignment;
Healthcare Developer shall have agreed in writing
for the benefit of the Healthcare Property Transferor
development of the Healthcare Property shall be in full compliance with the then-existing
Entitlements and the Approved Plans;
as a condition precedent to the Healthcare Property
Close of Escrow and to each subsequent Transfer to a Healthcare Developer, the Controlling
Person of the Approved Healthcare Developer or, if such Controlling Person is not approved by
the City as the Healthcare Guarantor, another Person approved by the City in its sole discretion
as the Healthcare Guarantor in accordance with Section 4.6, shall deliver to the City an HCD
Guaranty.
for avoidance of doubt, unless otherwise agreed by
the City in its sole discretion, upon the execution and delivery of the HCD Assignment,
Healthcare Developer shall be deemed to have assumed and shall be obligated to comply with
and perform: (1) all obligations of Healthcare Developer under this Agreement and the Other
Agreements, (2) all obligations of Developer under this Agreement and the Other Agreements
with respect to the Healthcare Property, the Healthcare Project and the Improvements thereon,
including all requirements of each of the provisions of this Agreement and the Other Agreements
that are expressly imposed only upon Developer, but apply with respect to the Healthcare
Property, the Healthcare Project and/or the Improvements thereon, but in such event only with
respect to the Healthcare Project, the Healthcare Property and the Improvements existing or to be
constructed thereon.
Upon the Healthcare Property Close of Escrow and the
subsequent Transfer of the Healthcare Property to an Approved Healthcare Developer, the
execution and delivery of the HCD Assignment, and delivery of the HCD Guaranty (which are
intended to take place substantially concurrently with the Healthcare Property Close of Escrow),
the Healthcare Property Transferor shall automatically be deemed to be released from the
obligations of Developer under this Agreement and the Other Agreements with respect to
construction and Completion of the Healthcare Vertical Improvements and with respect to the
other obligations expressly assumed by the Healthcare Developer under the assignment
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instrument; provided that, notwithstanding the foregoing or the assumption of obligations by the
Healthcare Developer:
Developer shall not be relieved of any of its other
obligations under this Agreement and the Other Agreements and specifically, and without
limitation shall not be relieved or released from the Ongoing Matters and/or, in its capacity as
Healthcare Property Transferor, from the Healthcare Transferor Obligations;
the Healthcare Transferor Obligations shall remain
the obligations of Healthcare Transferor and each Successor Owner of the Retail Parcels that is
not an End User unless and until such Person is expressly released in writing by the City;
nothing in this Section 2.2.3 shall limit Developer's
liability during any applicable Additional Liability Period; and
after Healthcare Property Transferor has
Transferred the Healthcare Property to a Healthcare Developer, Healthcare Developer has
delivered the HCD Guaranty and the Minimum Horizontal Improvements have been completed,
other than the Ongoing Matters and the remaining Healthcare Transferor Obligations, Developer
shall not have any liability for any breach of this Agreement by Healthcare Developer or
otherwise relating to the Healthcare Property.
Notwithstanding anything in this Agreement to the
contrary, the City shall have the right to condition its approval of there being more than one
Healthcare Developer upon the City's right to approve, in its sole discretion, the manner in which
the obligations created by this Agreement and the Other Agreements, including without
limitation, the obligation to construct the Minimum Healthcare Improvements and the financial
capability of the Persons proposed as such Healthcare Developer, are allocated between each
Healthcare Developer.
Transfer to End Users
. With respect to Transfers of Building
Pads to End Users (whether by sale or Ground Lease) prior to the Transfer Approval End Date
(but specifically excluding a Transfer of the entirety of the Property, of the Retail Parcel or of the
Healthcare Parcel pursuant to Section 2.2.3(a) or the Transfer to the Healthcare Developer
pursuant to Section 2.2.3(b) of this Agreement) for the applicable Parcel, the following
covenants and restrictions shall apply:
The City shall have the right, in its sole discretion:
to approve any Transferee with respect to the Retail
Parcel that is not a Pre-Approved Tenant, provided that the City shall not have a right to approve
the Transferee if at the time of the proposed Transfer, Developer has previously entered into
approved Ground Leases or sales in accordance with this Agreement for each of a grocery store
and a drug store and additional uses (excluding day care and car wash uses) together comprising
not less than 53,000 GBA;
to approve any Transferee with respect to the
Healthcare Parcel; and
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in the case of any Transfer pursuant to this Section
2.2.3(c), to approve: (1) the terms of the Ground Lease or conveyance documents and all other
Transfer documents proposed to be executed by Developer and Pad Transferee, to confirm that
they comply and do not conflict with the terms and requirements of this Agreement and the
Other Agreements, and (2) the building type, size and use of the Vertical Improvements to be
constructed on the Building Pad, in accordance with Sections 8.4.5 and 8.4.6.
In order to provide the City with information necessary to
Pad
inform its right to consent to a Transfer to
Transferee
-Approved Tenant, Developer or Healthcare
Developer, as applicable, shall provide to the City at least fifteen (15) Business Days prior to the
date of any such proposed Transfer the following:
the name of the proposed Pad Transferee;
current audited financial statements of the proposed
Pad Transferee or financial statements certified by an officer of the proposed Pad Transferee if
the proposed Pad Transferee does not have audited financial statements or a net worth letter from
the certified public accountant from the proposed Pad Transferee;
the name of the proposed initial End User of such
Building Pad; and
such other relevant information as the City may
reasonably request in connection with its consent rights under this Agreement to the extent
necessary to evidence that the proposed Pad Transferee has sufficient financial capacity to
construct the Vertical Improvements, if applicable, and to operate a business that is not a
Prohibited Use, and to perform those obligations of Developer or Healthcare Developer, as
applicable, under this Agreement assigned to the Pad Transferee with respect to the Building
Pad;
Pad Transfers to Pad Transferees shall not be valid or of
force or effect unless:
the City has provided its prior written consent to
those items and Transferees for which it has the right of consent pursuant to this Section 2.2.3(c);
the sale agreement or Lease with the Pad Transferee
prohibits use of the Building Pad for Prohibited Uses;
if requested by Developer or the Pad Transferee, the
Pad Transferee and Developer shall have executed in favor of the City a written agreement
substantially in the form and substance of the City Non-Disturbance and Attornment Agreement
attached hereto as Attachment 22A (or in other form agreed to by the City in its sole discretion)
which shall, among other things, acknowledge the City's rights under this Agreement; and
the Transfer agreement shall include the provisions
required by clauses 2.2.3(c)(v) through (viii) below; and
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Provided that each of the conditions in Sections 2.2.3(c)(i)
through (iii) are satisfied, then at the request of Pad Transferee: (A) prior to execution by
Developer and the Pad Transferee of a Ground Lease or sale contract, the Pad Transferee and the
City shall, at the request of either such party, enter into a letter agreement attaching the City
Non-Disturbance and Attornment Agreement and (B) the City shall, upon execution and delivery
of such City Non-Disturbance and Attornment Agreement by Pad Transferee and Developer or
Healthcare Developer, as applicable, execute such agreement; provided that in each case, the
City Non-Disturbance and Attornment Agreement shall not be effective until the date of legal
Transfer of the Building Pad by Developer to the Pad Transferee.
Developer and Healthcare Developer shall each retain all
their respective obligations under this Agreement relating to the Transferred Building Pad and
the construction of the Improvements, payment of all Development Costs and performance of the
maintenance and indemnity obligations set forth in this Agreement with respect to such Building
Pad, and all Ongoing Matters; provided that Developer or Healthcare Developer, as applicable,
may assign to the Pad Transferee its obligation to construct the Retail Vertical Improvements or
the Healthcare Vertical Improvements, as applicable, on the Building Pad and, in accordance
with Section 12.2.2, the maintenance obligations for such Building Pad; provided that such
Developer shall not be relieved of such obligations due to any assignment.
Developer shall use its commercially reasonable efforts to
cause the agreements related to the Transfer from either Developer and Healthcare Developer to
a Pad Transferee to include the following provisions (which shall be subject to modifications
reasonably requested by Developer or Healthcare Developer, as applicable, and Pad Transferee
provided that such modifications do not have a material adverse effect on the City as determined
by the City in its sole discretion) as remedies in favor of Developer or Healthcare Developer, as
applicable, in the event that any Pad Transferee or any successor in interest to all or any portion
of such Pad Transferees rights with respect to the Building Pad shall: (A) default under the
covenants, conditions and restrictions set forth in the applicable Quitclaim Deed, the Special
Restrictions or the CC&Rs or (B) fail, on or before the earlier of (1) the date that is twenty-four
months after the delivery of the applicable Building Pad, or (2) the date set forth in the respective
agreements related to such transfer, subject to Force Majeure Delay, to Complete the Vertical
Improvements on its Building Pad and fully stock and open for a minimum of one (1) day as a
retail establishment operated by an End User meeting the requirements set forth in Section 12.1;
If the Pad Transferee holds: (A) a leasehold interest in the
Building Pad, Developer shall use its reasonable efforts to cause the Ground Lease to include a
right of Developer or Healthcare Developer, as applicable, either (1) to terminate the applicable
Ground Lease or (2) to buy out such leasehold interest (provided that such lease may include one
or both of the foregoing remedies, in Developer
(B) the fee interest in such Building Pad, Developer or Healthcare Developer, as applicable, shall
use its reasonable efforts to have (1) a written option or (2) other legally enforceable right to
purchase such fee interest;
Developer agrees to use its commercially reasonable efforts
to enforce such terms in a Ground Lease or sale contract to the extent Developer has the right to
enforce the same pursuant to the applicable Ground Lease or sale contract and to use
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commercially reasonable efforts to mitigate the effect of any default by a Transferee thereunder;
provided, however, the City may exercise its rights under this Agreement without waiting for
Developer to enforce such rights or remedies, and provided further that nothing in this
Agreement, the Other Agreements, the Ground Lease, sale contract or the City Non-Disturbance
Agre
Developer. The City shall have the express right (but not the obligation) to seek specific
performance: (A) against Developer or Healthcare Developer, as applicable, requiring such
Party to exercise its rights and remedies under agreements with the Pad Transferee or its
successor in interest (but in such circumstance the City and Developer or Healthcare Developer,
as applicable, shall agree upon an extension of the Schedule of Performance with respect to
Developer
Improvements on such Building Pad in order to permit Developer or Healthcare Developer, as
applicable, to seek an appropriate Pad Transferee approved by the City for such Building Pad)
and (B) against Developer or the Healthcare Developer, as applicable, the Pad Transferee or its
successor in interest including the Citys Right of Repurchase or Right of Reversion contained in
this Agreement with respect to property Transferred to the Pad Transferee without having any
obligation to wait for Developer or Healthcare Developer, as applicable, to enforce its rights;
Space Lease Transfers
. With respect to all Space Lease
Transfers, Developer shall retain all of the obligations under this Agreement relating to such
Building Pad and Improvements thereon, including construction of the Improvements, payment
of all Development Costs, and the performance of Developers maintenance obligations and all
indemnity obligations of Developer set forth in this Agreement with respect to such Building Pad
and Improvements thereon and Developer shall not have the right to assign such obligations to
the Tenant, including no right to assign the obligation to carry out construction of the Vertical
Improvements (but Developer may transfer the obligation to construct interior tenant
improvements without relieving Developer of any of its obligations under this Agreement).
Further:
the rights of the Tenant to its respective portion of the
Property shall be subject to the use limitations contained in this Agreement, the Special
Restrictions, and the CC&Rs; and
upon request of Developer, the City shall enter into a City
Non-Disturbance and Attornment Agreement with Developer and a Tenant under a Space Lease
substantially in the form and substance of Attachment 22B (or in other form agreed to by the
City in its sole discretion).
No Mortgages without Consent
. Prior to the Transfer Approval
End Date for the Retail Parcel, Developer shall not encumber the Retail Parcel or any
portion thereof with any Mortgage without the prior written consent of the City, which
approval may be granted or withheld in the sole discretion of the City. Prior to the Transfer
Approval End Date for the Healthcare Parcel, Healthcare Developer shall not encumber the
Healthcare Parcel or any portion thereof with any Mortgage except in strict compliance
with this Agreement, including Sections 2.2.3(b), 4.6.4(c) and 17. Any encumbrance of the
Development Parcels, or any portion thereof, in violation of this Section 2 shall be a
prohibited Transfer or Transfer of Control and a Material Default by Developer, and shall
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be subject to the provisions of Section 14.2.3. The City shall have no right to approve or
disapprove a Mortgage with respect to a Development Parcel or any Improvements thereon
after the Transfer Approval End Date for that Development Parcel.
Bankruptcy
. The following shall be considered Transfers which
are prohibited without consent from the City, which may be granted or withheld in the
Developer Insolvency Event
City
If Developer is or becomes bankrupt, or insolvent or if any
involuntary proceeding is brought against Developer (unless, in the case of a petition filed
against Developer, the same is dismissed within ninety (90) calendar days), or Developer makes
an assignment for the benefit of creditors, or institutes a proceeding under or otherwise seeks the
protection of federal or State bankruptcy or insolvency laws, including the filing of a petition for
voluntary bankruptcy or instituting a proceeding for reorganization or arrangement;
If a writ of attachment or execution is levied on this
Agreement or on any Development Parcel, or on any portion thereof, where such writ is not
discharged within ninety (90) calendar days; or
If, in any proceeding or action in which Developer is a party,
a receiver is appointed with authority to take possession of a Development Parcel, or any portion
thereof, where possession is not restored to Developer within ninety (90) calendar days.
City Estoppel
.
From time to time (but in no event more than quarterly or in
connection with a Permitted Transfer or a Transfer or Transfer of Control consented to by the
City in accordance with this Agreement) within twenty (20) calendar days of the Citys receipt of
a written request therefor, the City shall execute and deliver to Developer and the applicable
Transferee, and if applicable, the Permitted Mortgagee, a City Estoppel, substantially in the form
and substance of the City Estoppel attached hereto as Attachment 6 but with such modifications
as are necessary in the Citys sole discretion to ensure the accuracy of the statements made
therein.
Developer shall promptly pay to the City all of the Citys
expenses, including legal fees and staff costs, incurred with respect to the preparation, review,
and delivery of each City Estoppel and with respect to the Citys review and approval (or
disapproval) of each Transfer or Transfer of Control, not to exceed One Thousand Dollars
($1,000) per estoppel; provided, however, such cap shall not be applicable if Developer proposes
any material changes to the City Estoppel, or Developer is in default under this Agreement or
any of the Other Agreements at such time. The City costs incurred pursuant to this Section shall
be DDA Transaction Expenses.
2.3Remedies for Improper Transfers or Transfers of Control
.
Without limiting the generality of the foregoing, a failure (a) by Developer to comply
with the requirements of this Section 2 with respect to any Transfer or Transfer of Control or
(b) by any Transferee, including Healthcare Developer, to execute an Assignment, an HCD
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Assignment or a City Non-Disturbance and Attornment Agreement, as applicable, pursuant to
Section 2.2.2 or 2.2.3, which if not promptly cured after Developer receives written notice of the
same from the City shall in each case be a Material Default under this Agreement and subject to
the provisions of Section 14.2.3, and, in such event, the City shall have all remedies available to
it at law and in equity with respect to the portion of the Project owned by the Developer or the
respective Transferee, including those specified in this Agreement and specifically including the
right to exercise the Right of Repurchase and/or the Right of Reversion, as applicable, in
accordance with Section 16 of this Agreement.
2.4Changes
.
Developer shall promptly notify the City in the event that any of the Key Employees
cease to be involved with the development of the Project.
Representations and Warranties.
3.
3.1Developers Representations and Warranties
.
As an inducement to the City to enter into this Agreement and to perform its obligations
hereunder, Developer represents and warrants to the City as follows:
Developer has the necessary expertise, experience, financial
experience and qualifications and legal status necessary to perform as Developer pursuant
to this Agreement and to construct and complete the Project, and, without limiting the
foregoing, Developer is experienced in the development, management, and leasing of
commercial projects of the size and type described in this Agreement and understands the
process and requirements associated with projects such as the Project described herein.
Developers acquisition of the Property, development of the
Project and its other undertakings pursuant to this Agreement are for the purpose of timely
development of the Development Parcels in accordance with the Retail Schedule of
Performance attached to this Agreement and not for speculation or land holding.
Developer is a limited liability company, duly organized, and
validly existing and in good standing under the laws of the State of Florida, is duly
qualified to do business and in good standing in the State and in each other jurisdiction
where the operation of its business or its ownership of property or the performance of
Developers obligations under this Agreement make such qualification necessary.
Subject to all of the conditions set forth in this Agreement for the
benefit of Developer, Developer has (or will have prior to the date by which a particular
step is required to be taken or performance of a particular obligation is required to be
commenced pursuant to this Agreement or any Other Agreements) all requisite power and
authority required to enter into this Agreement and the instruments referenced in this
Agreement, to consummate the transaction contemplated hereby and to take any steps
contemplated thereby or hereby, and to perform its obligations hereunder and thereunder.
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Developer has obtained (or will have obtained prior to the date
by which a particular step is required to be taken or performance of a particular obligation
is required to be commenced pursuant to this Agreement or any Other Agreements) all
required consents in connection with entering into this Agreement and the instruments and
documents referenced in this Agreement to which Developer is or shall be a party and the
consummation of the transactions contemplated hereby.
The individuals executing this Agreement and the individuals
that will execute the instruments referenced in this Agreement on behalf of Developer
have, or will have upon execution thereof, the legal power, right and actual authority to
bind Developer to the terms and conditions hereof and thereof.
This Agreement has been duly authorized, executed and
delivered by Developer and all documents required in this Agreement to be executed by
Developer pursuant to this Agreement shall be, at such time as they are required to be
executed by Developer, duly authorized, executed and delivered by Developer and are or
shall be, at such time as the same are required to be executed hereunder, valid, legally
binding obligations of and enforceable against Developer in accordance with their terms,
except as enforceability may be limited by bankruptcy laws or other similar laws affecting
creditors rights.
Neither the execution or delivery of this Agreement or the
documents referenced in this Agreement, nor the incurring of the obligations set forth in
this Agreement and the certificates, declarations and other documents referenced in this
Agreement, nor the consummation of the transactions in this Agreement contemplated, nor
compliance with the terms of this Agreement and the documents referenced in this
Agreement, will violate any provision of law or any order of any court or Governmental
Authority to which Developer is subject or conflict with or result in the breach of any
terms, conditions, or provisions of, or constitute a default under any bond, note, or other
evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan
partnership agreement, lease or other agreements or instruments to which Developer or any
of its members are a party and which affect the Property or the transactions contemplated
by this Agreement.
No attachments, execution proceedings, assignments of benefit to
creditors, bankruptcy, reorganization or other proceedings are pending or, to the best of
Developers knowledge, threatened against Developer or its members.
Developer is relying solely upon its own inspections and
investigations in proceeding with this Agreement and the transactions contemplated hereby,
and is not relying on the accuracy or reliability of any information provided to it by the
City, on any oral or written representation or on the non-disclosure of any facts or
conclusions of law made by the City, or any of its elected and appointed officials, officials,
employees, agents, attorneys or representatives made in connection with this Agreement.
In making such investigation and assessment, Developer has been provided access to any
persons, records or other sources of information which it has deemed appropriate to review
and it has thereafter completed such investigation and assessment. Without limiting the
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generality of the foregoing provisions, Developer acknowledges that the City has not made
and will not make any representations or warranties concerning the condition of the
Property, the compliance or non-compliance of the Property or any portion thereof with
Environmental Laws or the existence or non-existence of Hazardous Materials in relation
to the Property or any portion thereof or otherwise.
To Developers knowledge, except as described on
Attachment 4, there are no adverse conditions or circumstances, no pending or threatened
litigation, governmental action, or other condition which could prevent or materially impair
Developers ability to develop the Property and the Project as contemplated by the terms of
this Agreement.
Except as set forth in this Agreement and the ENA, Developer
has not paid or given, and will not pay or give, any third Person any money or other
consideration for obtaining this Agreement, other than the normal cost of conducting
business and cost of professional services such as architects, engineers and attorneys.
All reports, documents, instruments, information and forms of
evidence delivered by Developer to the City concerning or related to this Agreement and
the transactions contemplated hereby are, to the best of Developers knowledge, accurate
and correct and sufficiently complete at the time of submission to give the City true and
accurate knowledge of the subject matter, and do not contain any misrepresentation or
omission.
Prior to the Effective Date, Developer has delivered a copy of the
Initial Retail Equity Funding Letter to the City. The Initial Retail Equity Funding Letter is
in full force and effect and has not been amended or modified. Based on the Initial Retail
Equity Funding Letter, Developer has, as of the Effective Date, the equity capital and
financial capacity, without requirement of third party financing other than as set forth in the
Initial Retail Equity Funding Letter, sufficient to obtain the Applicable Approvals and
Development Permits. Prior to the Close of Escrow, Developer shall deliver to the City an
additional equity funding letter in accordance with Section 4.6.2 below and comply with
the other obligations of Developer under this Agreement required to be satisfied prior to the
Healthcare Property Close of Escrow or the Retail Property Close of Escrow.
Prior to the Effective Date, Developer and SN, as a proposed
Healthcare Developer, have executed and delivered the SN PSA, a copy of which has been
delivered by Developer to the City. The SN PSA: (a) is in full force and effect and has not
been amended or modified, (b) will not be further modified, amended or terminated by
Developer without the prior consent of City, and (c) provides for the further amendment of
the SN PSA in order to address the requirements of this Agreement which amendment will
Medical Office Parcel and
the Healthcare Provisions related thereto and (ii) provides for a termination of the SN PSA
in the event that the City, prior to the Healthcare Property Close of Escrow, determines that
(1) it does not approve SN or Hoag as Healthcare Developer or the Healthcare Guarantor(s)
of SN or Hoag or (2) SN, Hoag or the Healthcare Guarantors do not meet the other
requirements or conditions of this Agreement, including the financial standards and
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guarantees required by the City. Upon satisfaction of the conditions precedent set forth in
Section 7.2.1 and without any other requirement or condition except pursuant to the terms
of the SN PSA or any other HCD Agreement entered into by SN, Hoag and Developer (and
SN and Hoag as the Approved
H
Section 4.6), Developer is, and as of the Healthcare Property Close of Escrow shall be,
obligated to sell to SN, and SN has agreed to acquire, all right, title and interest of
Developer under this Agreement with respect to the Healthcare Property and the
development thereof, and as of the Healthcare Property Close of Escrow shall be obligated
to assume and comply with the obligations of Healthcare Developer and other obligations
of Developer under this Agreement (including execution of the HCD Assignment, the HCD
Guaranty and the HCD Agreements, if any, required to comply with the terms of this
Agreement) required to be satisfied with respect to the Healthcare Developer and/or the
Healthcare Property, whether prior to or following the Healthcare Property Close of
Escrow. Developer acknowledges that, notwithstanding the execution by SN and
Developer of the SN PSA, the City has the right, in its sole discretion, to approve and/or
disapprove SN and Hoag as Healthcare Developer, the SN PSA and any future HCD
Agreements with SN or Hoag, as further set forth in Section 2.2.3(b) and/or Section 4.6.
Developer does not have any contingent obligations or any other
contracts the performance or nonperformance of which could affect the ability of
Developer to carry out its obligations hereunder. Developer has not and shall not undertake
such additional projects as could reasonably be expected to jeopardize the sufficiency of
such equity, capital and firm and binding commitments for the purposes expressed in
Section 3.1.14 above and in the preceding sentence.
There are no legal proceedings either pending or, to the best of
Developers knowledge, threatened, to which Developer is or may be made a party, or to
which any of Developers property, or the Property, is or may become subject, which has
not been fully disclosed in the documents submitted to the City and which could materially
affect the ability of Developer to carry out its obligations hereunder.
Subject to Section 7.2.2(b)(viii) and 7.3.2(b)(vii), Developers representations and
warranties set forth in this Section 3.1 shall be deemed to be restated at each Close of Escrow,
and shall survive each Close of Escrow until the termination of this Agreement and shall not be
to Developers knowledge
merged with any Quitclaim Deed. As used in Section 3
similar phrases means, with respect to the Initial Developer, any knowledge of John Mehigan
and Luis Gomez and with respect to any subsequent Developer or Healthcare Developer, those
Persons having knowledge of the transactions and Transferee and accepted by the City, in each
Developer Knowledge Parties
Notwithstanding anything to the contrary contained herein, (a) none of the Developer
Knowledge Parties shall be personally liable for any inaccuracy or breach by Developer of
Healthcare Developer of the representations and warranties contained in Section 3.1 or elsewhere
in this Agreement and/or any of the Other Agreements, and (b) the City shall not be entitled to
make a claim for a breach of Developer
warranties if Developer or Healthcare Developer, as applicable, had disclosed in writing facts to
the City indicating that the applicable representation and warranty was incorrect prior to (i) the
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execution of this Agreement and the City proceeded with the execution of this Agreement, or
(ii) the relevant Close of Escrow and the City proceeded with such Close of Escrow, in either
case in spite of such inaccuracy.
3.2Developer Covenants Regarding Representations and Warranties
.
Developer or Healthcare Developer, as applicable, shall promptly advise the City in
writing if any of the Developer Knowledge Parties becomes aware (without any duty of inquiry)
that any representation or warranty made by Developer or Healthcare Developer in or pursuant to
Section 3.1 is or becomes untrue in any material respect prior to each Close of Escrow.
3.3City Representations and Warranties
.
As an inducement to Developer to enter into this Agreement and perform its obligations
hereunder, the City represents and warrants to Developer as follows:
The City is a municipal corporation incorporated within and
existing pursuant to the laws of the State of California.
Subject to all of the conditions set forth in this Agreement for the
benefit of the City, the City has (or will have prior to the date by which a particular step is
required to be taken or performance of a particular obligation is required to be commenced
pursuant to this Agreement or any Other Agreements) all requisite power and authority
required to enter into this Agreement and the instruments referenced in this Agreement, to
consummate the transaction contemplated hereby and to take any steps contemplated
thereby or hereby, and to perform its obligations hereunder and thereunder.
The City has obtained (or will have obtained prior to the date by
which a particular step is required to be taken or performance of a particular obligation is
required to be commenced pursuant to this Agreement or any Other Agreements) all
required consents in connection with entering into this Agreement and the instruments and
documents referenced in this Agreement to which the City is or shall be a party and the
consummation of the transactions contemplated hereby.
The individual executing this Agreement and the individual that
will execute the instruments referenced in this Agreement on behalf of the City have, or
will have upon execution thereof, the legal power, right and actual authority to bind the
City to the terms and conditions hereof and thereof.
This Agreement is duly authorized, executed and delivered by
the City and all documents required in this Agreement to be executed by the City pursuant
to this Agreement shall be, at such time as they are required to be executed by the City,
duly authorized, executed and delivered by the City and are or shall be, at such time as the
same are required to be executed hereunder, valid, legally binding obligations of and
enforceable against the City in accordance with their terms, except as enforceability may be
limited by bankruptcy laws or other similar laws affecting creditors rights.
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Neither the execution or delivery of this Agreement or the
documents referenced in this Agreement, nor the incurring of the obligations set forth in
this Agreement, and the certificates, declarations and other documents referenced in this
Agreement, nor the consummation of the transactions in this Agreement contemplated, nor
compliance with the terms of this Agreement and the documents referenced in this
Agreement, will violate any provision of law, any order of any court or Governmental
Authority or conflict with or result in the breach of any terms, conditions, or provisions of,
or constitute a default under any bond, note or other evidence of indebtedness or any
contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other
agreements or instruments to which the City is a party or which affect any of the Property
or the transactions contemplated by this Agreement, except as set forth on Attachment 4.
Except as set forth on Attachment 4, there are no legal
proceedings either pending or, to the knowledge of the City Representatives, threatened, to
which the City is or may be made a party, or to which the Property, is or may become
subject, which has not been fully disclosed in the documents submitted to Developer and
which could reasonably affect the ability of the City to carry out its obligations hereunder
or which would affect the Property after eachClose of Escrow.
Subject to Section 7.2.1(a)(viii) and 7.3.1(a)(viii), Citys representations and warranties
set forth in this Section 3.3 shall be deemed to be restated at each Close of Escrow, and shall
survive eachClose of Escrow until the termination of this Agreement and shall not be merged
to Citys knowledge
with anyQuitclaim Deed. As used in Section 3
City
means any knowledge of Jeffrey Parker,
Representatives
contained herein, (a) none of the City Representatives shall be personally liable for any
inaccuracy or breach by the City of the representations and warranties contained in Section 3.3 or
elsewhere in this Agreement, any of the Other Agreements, and (b) neither Developer nor any
other Party shall be entitled to make a claim for a breach of the Citys representations and
warranties if the City had disclosed in writing facts to Developer indicating that the applicable
representation and warranty was incorrect prior to (i) the execution of this Agreement and
Developer proceeded with the execution of this Agreement, or (ii) the relevant Close of Escrow
and Developer or Healthcare Developer, as applicable, proceeded with suchClose of Escrow, in
either case in spite of such inaccuracy.
3.4City Covenants Regarding Representations and Warranties
.
The City shall promptly advise Developer in writing if any of the City Representatives
becomes aware (without any duty of inquiry) that any representation or warranty made by the
City in Section 3.3 is or becomes untrue in any material respect prior to anyClose of Escrow.
Conveyance of Property from City to Developer.
4.
4.1Conveyance of Property
.
Subject to the terms and conditions set forth in this Agreement, including the satisfaction
of the Closing Conditions set forth in Section 7 or elsewhere in this Agreement, the City agrees
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to sell to Developer and Developer agrees to purchase from the City the Development Parcels,
together with all existing improvements, if any, presently located on the Development Parcels,
all appurtenances pertaining to the Development Parcels or such improvements and all permits,
licenses, approvals and authorizations issued by any Governmental Authority in connection with
Property
to all Permitted Exceptions. At the Retail Property Close of Escrow, the City shall cause the
Special Restrictions to be Recorded and thereafter shall convey to Developer by Quitclaim Deed
fee title to the Property to be conveyed at such Close of Escrow. Notwithstanding the foregoing:
PropertyHealthcare PropertyRetail
Property
the City:
Any and all oil, oil rights, minerals, mineral rights, natural gas,
natural gas rights and other hydrocarbon by whatsoever name known, geothermal steam and all
products derived from any of the foregoing, that may be within or under the Development
Parcels together with the perpetual right of drilling, mining, exploring for and storing in and
removing the same from the Development Parcels or any other land, including the right to
whipstock or directionally drill and mine from lands other than the Development Parcels, oil or
gas wells, tunnels and shafts into, through or across the subsurface of the Development Parcels
and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and
beneath or beyond the exterior limits thereof, and to re-drill, re-tunnel, equip, maintain, repair,
deepen and operate any such well or mines; but without, however, the right to enter upon or use
the surface of the Development Parcels in the exercise of such rights or otherwise adversely
affect the use or operation of the Development Parcels as anticipated by this Agreement or the
structural integrity of any improvements on the Development Parcels; and
Any and all water, water rights or interests therein appurtenant or
relating to the Development Parcels or owned or used by the City in connection with or with
respect to the Development Parcels no matter how acquired by the City, whether such water
rights shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated,
statutory or contractual, together with the perpetual right and power to explore, drill, re-drill and
remove the same from or in the Development Parcels, to store the same beneath the surface of
the Development Parcels and to divert or otherwise utilize such water, rights or interests on any
other property owned or leased by the City; but without, however, the right to enter upon or use
the surface of the Development Parcels in the exercise of such rights or otherwise adversely
affect the use or operation of the Development Parcels as anticipated by this Agreement or the
structural integrity of any improvements on the Development Parcels;
the reservation by the City of the rights and interests in this Section 4.1
shall not be deemed to limit Developers right to construct foundations and other subsurface
improvements for the purpose of constructing Buildings, and otherwise engage in subsurface
construction activity in connection therewith; and
Notwithstanding anything in this Agreement to the contrary, Developer
shall have the right to acquire the Healthcare Parcel and the other Development Parcels in two
separate closings. If Developer provides written notice of its intent to acquire the Property in
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separate closings, then Developer shall acquire the Healthcare Property upon the Healthcare
Property Closing Date, which shall occur no later than the Healthcare Property Outside Closing
Date, and shall acquire the Retail Property upon the Retail Property Closing Date, which shall
occur no later than the Retail Property Outside Closing Date. If Developer elects to provide such
notice, then each reference in this agreement to “Close of Escrow” shall be deemed to refer tothe
Close of Escrow for each Parcel.
(d)Developer acknowledges and agrees that the City shall have no
requirement to convey the Healthcare Property to Developer unless Developer is prepared to
convey the Healthcare Property to an Approved Healthcare Developerand the City has approved
a Healthcare Developer,and Developer has agreed to Transfer its interests with respect to the
Healthcare Property to such Healthcare Developer concurrently with the Healthcare Property
Close of Escrow in accordance with the requirements of Section2.2.3(b).
4.2Purchase Price
.
BasePurchase Price
4.2.1.As consideration for the sale of the
Property by the City to Developer, Developer shall pay to the City an amount equal to
Eighteen Million Eight Hundred Thousand Dollars ($18,800,000.00)which shall be
payable as follows:(a)at the Healthcare Property Close of Escrow, Developer shall pay
Healthcare Property
Ten Million Five Hundred Thousand Dollars ($10,500,000.00)(the “
Purchase Price
”)this number is inclusive of a Project Fair Share Contributionof Four
Million Seven Hundred Fifty-Four Thousand Seven Hundred Seventy-One Dollars
($4,754,771.00), and(b)at the Retail Property Close of Escrow, Developer shall payEight
Retail Property Base
Million Three Hundred Thousand Dollars ($8,300,000.00) (the “
Purchase Price
”) this number is inclusive of a Project Fair Share Contribution of Five
Million Five Hundred Fifty Thousand Eight Hundred Forty-Six Dollars ($5,550,846.00);
Base Purchase Price
(collectively with the Healthcare Property Purchase Price, the “”).
Additional Purchase Price
4.2.2.If Developer consummates the sale
of the Healthcare Parcel to the Healthcare Developer, then, as additional consideration for
the sale of the Property by the City to the Developer, in addition to the Base Purchase
Price, Developer shall payto the City an additional Five Hundred Thousand Dollars
Additional Purchase Price
($500,000.00) (the “”)within thirty (30)days after the date
upon which the first of the following occurs: (a) a single grocery store of not less than
40,000 GBA and a drugstore on the Retail Parcel are fully stocked and open for a
minimum of one (1) day as a retail establishmentor (b) Tenants occupying at least 53,000
GBA on the Retail Parcel are fully stocked and open for a minimum of one (1) day as a
retail establishment.The Additional Purchase Price shall be secured by the REG Guaranty.
4.3Payment of Purchase Price; Healthcare Property Option Payment
.
Purchase Price Deposit
4.3.1. Upon the Opening of Escrow,
Purchase Price Deposit
Developer shall deliver an earnest money deposit (“”) of Three
Hundred and Fifty Thousand Dollars ($350,000.00) toEscrow Holder within five (5)
Business Days of the City’s and Developer’s execution of this Agreement and as a
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condition to the effectiveness of this Agreement; provided, however, that Developer may
elect to apply any unapplied portion of the City Costs Deposit held by the City at such time
to the Purchase Price Deposit. The Purchase Price Deposit shall constitute security to the
City for the Retail Property Close of Escrow.
Application of Purchase Price Deposit
. After expiration of the
Due Diligence Period, the Purchase Price Deposit shall be nonrefundable except as
otherwise expressly provided in Section 15.1.3 and 15.4.3 and shall be applied only to the
Retail Property Purchase Price as set forth in Section 4.3.4 below, or shall be liquidated
damages to the City in the event of certain Defaults by Developer as further set forth in
Section 15.2 of this Agreement.
Healthcare Property Option Payment.
Provided that the
Healthcare Property Close of Escrow does not occur concurrently with the Retail Property
Close of Escrow, in order to secure the Option as defined in Section 7.1.1(b) below, which
Developer may elect to do (or not do) in its sole discretion, Developer shall deposit with
the City the First Option Payment as defined in Section 7.1.1(b) below which shall be
delivered to the City in accordance with this Agreement upon the Retail Property Close of
Escrow. The Healthcare Property Option Payment shall be nonrefundable except in the
event of the City's Default in accordance with Section 15.4 below and shall be applied to
the Healthcare Property Purchase Price as set forth in Section 4.3.4 below or shall be
liquidated damages to the City as set forth in Section 15.3 of this Agreement.
Payment of the Balance of the Base Purchase Price and
Other Amounts Due at Close of Escrow
. No later than one (1) Business Day prior to the
relevantClose of Escrow, Developer shall deposit the following amounts with Escrow
Holder:
in the case of the Retail Property Close of Escrow, the Retail
Property Closing Payment (i) the Retail Property Base Purchase Price
less the Purchase Price Deposit and less the ENA Applicable Deposit; plus (ii)any additional
amount as is necessary to cover any outstanding City Transaction Expenses incurred by the City
through the Retail Property Close of Escrow plus (iii) all closing costs to be paid by Developer
pursuant to Sections 7.5.1(b), 7.5.1(c) and 7.5.4, as adjusted for any net credits or debits to the
City for closing costs and/or prorations in accordance with Sections 7.5.1(a), 7.5.1(c) and 7.5.4;
and
in the case of the Healthcare Property Close of Escrow, the
Healthcare Property Closing Paymenthall be equal to (i) the Healthcare Property
Purchase Price less the Healthcare Property Option Payment (as defined in Section 7.1.1(b)
below) if, and only to the extent, previously paid by Developer to the City; plus (ii) subject to
the City Expense Cap, such additional amount as is necessary to cover any outstanding City
Transaction Expenses incurred by the City through the Healthcare Property Close of Escrow plus
(iii) all closing costs to be paid by Developer pursuant to Sections 7.5.1(b), 75.1(c) and 7.5.4, as
adjusted for any net credits or debits to the City for closing costs and/or prorations in accordance
with Section 7.5.1(a) and (c) and Section 7.5.4.
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Payments in Immediately Available Funds
. Funds delivered
to the City or Escrow Holder under this Agreement shall be in the form of cash, wire
transfer (to such account as the City or Escrow Holder notifies Developer in writing), or by
cashiers check drawn on good and sufficient funds on a federally chartered bank and made
payable to the order of City or Escrow Holder, as the case may be.
4.4Escrow and Joint Escrow Instructions
.
Upon execution of this Agreement by Developer and the City, Developer and the City
shall each deliver three executed original counterparts of this Agreement to Escrow Holder. For
Opening of Escrow
receives executed original counterparts to this Agreement signed by Developer and the City.
Upon the written acceptance of this Agreement by Escrow Holder, this Agreement shall
constitute the joint escrow instructions of Developer and the City to Escrow Holder to open an
Escrow
s receipt of the Purchase Price Deposit and
Escrow Holders written acceptance of this Agreement, Escrow Holder is authorized to act in
accordance with the terms of this Agreement. Developer and the City shall execute Escrow
Holders general escrow instructions upon request, with such modifications thereto as Developer
and the City may reasonably require; provided, however, if there is any conflict or inconsistency
between such general escrow instructions and this Agreement, this Agreement shall control.
Escrow Holder shall not prepare any further escrow instruction restating or amending this
Agreement unless specifically so instructed by the City and Developer in writing. Any
supplemental escrow instructions must be in writing and signed by the City and Developer and
accepted by the Escrow Holder to be effective.
4.5-
Investigation
.
Due Diligence Review
. Developer shall have the right to
conduct Developers own investigation of the Property pursuant to Section 5.1 of this
Agreement. If Developer proceeds to the Retail Property Close of Escrow, Developer represents
and warrants to the City that Developer will have satisfied itself that it has determined that all
matters related to the Property and the Project are acceptable to Developer, including, the state of
title (subject only to the Permitted Exceptions), the physical condition thereof, the physical
condition of structures, if any, located upon the Development Parcels and, as applicable, the
accessibility and location of utilities, and all mechanical, plumbing, sewage, and electrical
systems located therein, suitability of soils, environmental and other investigations regarding the
Property. Prior to the expiration of the Due Diligence Period, Developer will have reviewed all
items that in Developers sole judgment affect or influence Developers purchase and use of the
Property and Developers willingness to consummate the transactions described by this
Agreement.
Opportunity to Evaluate
. Developer acknowledges and agrees
that, as of eachClose of Escrow:
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Its determination to enter into this Agreement constitutes
Developers agreement that Developer, in consummating the transactions described in this
Agreement:
has been given the opportunity to inspect the
Property and to review the information and documentation provided by the City to Developer
and affecting the Property, including the environmental condition of the Property, or otherwise
obtained by Developer in connection with its due diligence of the Property, and is relying solely
on its own investigation of the Property, including such investigation prior to execution of this
Agreement, and review of such information and documentation in determining the physical,
economic and legal condition of the Property, and not on any information, representation or
warranty provided by the City or any agents or representatives of the City;
has performed its own assessment of the Property,
including the environmental condition of the Property, the presence of Hazardous Materials on
the Property, the suitability of the soil for improvements to be constructed, the implications of
land use restrictions on the development plan for the Project and the Property and the
consequences of any subsequently discovered contamination on or adjacent to the Property, and
has been provided with access to all information in
the possession of the City which it has requested.
Information provided to Developer by or on behalf of the
City with respect to the Property was obtained from a variety of sources and that the City has not
made any independent investigation or verification of such information and makes no
representations as to the accuracy or completeness of such information; and Developer is
satisfied with the nature and extent of its permissible investigation of the physical condition and
other matters relating to the Property and is willing to consummate the transactions described by
this Agreement.
Without limiting the generality of the foregoing, Developer
acknowledges and agrees that: (A) it has been provided with access to (x) all environmental
reports and statements listed on Attachment 10 and all reports either attached to or referenced in
the Memorandum of Agreement and Federal Deed, (y) the FOST and (z) the Environmental
EBS
B) it shall
perform its own assessment of the environmental condition of the Property, the presence of
Hazardous Materials on the Property, the suitability of the soil for improvements to be
constructed, the implications of the land use restrictions on the development plan for the Project
and the Property and the consequences of any subsequently discovered contamination on the
Property; and (C) it shall review the Navy produced or identified documentation, including that
listed on Attachment 10, reflecting the Navys knowledge of the environmental condition of the
Property.
AS-IS; WHERE-IS
.
No Representations or Warranties
. Developer recognizes that
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basis, and Developer acknowledges that the City has made no representations or warranties of
any kind whatsoever (excepting only those representations and warranties of the City expressly
set forth in Section 3.3 of this Agreement), either express or implied in connection with any
matters with respect to the Property or any portion thereof.
Acknowledgement
. Developers determination to enter into this
Agreement constitutes Developers agreement that Developer, in consummating the transactions
IS, WITH ALL
limiting the generality of the foregoing provisions, Developer further acknowledges and agrees
that, except as otherwise specifically provided in Sections 3.3 and 18.12 of this Agreement, City
makes no representations, warranties, or guaranties of any kind or character in connection with
the transaction contemplated by this Agreement, whether express or implied, oral or written,
past, present or future, whether by the City or any of its agents, elected or appointed officials,
representatives or employees, of concerning or with respect to:
the value of the Property or the income to be derived from
the Property;
the existence or nonexistence of any liens, easements,
covenants, conditions, restrictions, claims or encumbrances affecting the Property (including any
of the foregoing arising from or related to the Entitlements or any of the Other Agreements);
the suitability of the Property for any and all future
development, uses and activities which Developer may conduct thereon, including the
development of the Project described in this Agreement and the Other Agreements;
the ability of the City or any third party to complete, or
likelihood of the completion of, any of the improvements and infrastructure described by the
General Plan, the Reuse Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure
Program or any other plan or policy of the City or any other Governmental Authority;
the compliance with or enforcement of the Reuse Plan, the
General Plan, the Specific Plan, the Special Restrictions, the CC&Rs, the Tustin Legacy
Backbone Infrastructure Program or any other agreement or governmental restriction or plan
affecting Tustin Legacy by the City or any third party;
the habitability, merchantability or fitness for a particular
purpose of the Property;
the manner, quality, state of repair or lack of repair of the
Property;
the nature, quality or condition of the Property including
water, soil and geology;
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the compliance of or by the Property and/or its operation in
accordance with the Entitlements or any Governmental Requirement, including the National
Environmental Policy Act, CEQA and the Americans with Disabilities Act of 1990;
the manner or quality of the construction or materials, if
any, incorporated into the Property;
the presence or absence of Hazardous Materials, including
asbestos or lead paint at, on, under, or adjacent to the Property or any other portion of the
Development Parcels or Tustin Legacy;
the content, completeness or accuracy of the information,
documentation, studies, reports, surveys and other materials, delivered to Developer in
connection with the review of the Property and the transactions contemplated in this Agreement
and the Other Agreements;
the conformity of the existing improvements on the
Property and/or at Tustin Legacy, if any, to any plans or specifications therefor;
compliance of the Property with past, current or future
Governmental Requirements relating to zoning, subdivision, planning, building, fire, safety,
health or environmental matters and/or covenants, conditions, restrictions or deed restrictions;
the deficiency of any undershoring or of any drainage to,
on or from the Development Parcels or any other portion of Tustin Legacy;
the condition of any adjoining land owned by the City,
including the Slope Parcel and any improvements thereon;
the fact that all or a portion of the Property may be located
on or near an earthquake fault line or falls within an earthquake fault zone established under the
Alquist-Priolo Earthquake Zone Act, California Public Resources Code Sections 262 1-2630 or
within a seismic hazard zone established under the Seismic Hazards Mapping Act, California
Public Resources Code, Sections 2690-2699.6 and Sections 3720-3725;
the existence or lack of vested land use, zoning or
building entitlements affecting the Property;
the construction or lack of construction of Tustin Legacy or
if constructed, the construction of Tustin Legacy in accordance with design guidelines, plans and
specifications previously or to be prepared therefor;
the conditions, covenants and restrictions imposed or to be
imposed upon the Property or any portion thereof under this Agreement, the Other Agreements,
or the Entitlements;
the contents of the Memorandum of Agreement, the
Federal Deed, the Base Closure Law and the FOST; and
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any other matters.
Environmental Condition of the Property; Restrictions
.
Without limiting the generality of the foregoing provisions, the City makes no representation or
warranty as to the environmental condition of the Property or any portion thereof, the Navys
obligations with respect to the environmental condition of the Property or the adequacy or
accuracy of any environmental report that has been rendered. Developer acknowledges and
agrees that (i) there may be some residual contamination on the Property as a result of Navy
historic activities; (ii) the Navy has agreed to accept certain limited responsibility for any
contamination it caused, including any contamination discovered after transfer from the Navy, in
accordance with existing Governmental Requirements including the National Defense
Authorization Act For Fiscal Year 1993 as amended (Public Law No. 102-434) Section 330 and
Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. § 9620(h); and (iii) the deed restrictions contained in the Federal Deed are
binding upon successors and assigns of the City and are enforceable by DTSC pursuant to a
conveyed property right from the Navy to DTSC.
Federal Deed and Memorandum of Agreement
. Developer
acknowledges and agrees that the purchase of the Property is subject to the terms and conditions
expressly set forth in the Memorandum of Agreement, the Federal Deed and the Permitted
Exceptions. From and after eachClose of Escrow, Developer agrees, to assume and faithfully
perform any covenants running with the land and obligations set forth in the Federal Deed as
obligations to be performed by
acquired by Developer and such obligations shall run with the land and be binding upon
Developer and each Successor Owner for the period of their ownership and for the Additional
Liability Period.
No Unauthorized Representations
. No Person acting on behalf
of the City is authorized to make, and by execution hereof, Developer acknowledges that no
Person has made, any representation, agreement, statement, warranty, guarantee or promise
regarding the Property, the Project or the transactions contemplated in this Agreement or the
past, present or future zoning, land use entitlements, construction, physical condition, presence
or extent of Hazardous Materials or other status of the Property except as may be expressly set
forth in this Agreement or in any of the Other Agreements. No representation, warranty,
agreement, statement, guarantee or promise, if any, made by any Person acting on behalf of the
City that is not contained in this Agreement or in any of the Other Agreements will be valid or
binding on the City. Nothing in this Section is intended to affect in any manner the validity of
the Entitlements and Development Permits obtained by Developer with respect to the Property.
Release
. Developer, on behalf of itself and each Successor
Owner and every Person claiming by, through or under Developer or any Successor Owner (each
Releasing Party
Close of Escrow, the right of each Releasing Party to recover from, and fully and irrevocably
releases, the City and its elected and appointed officials, employees, agents, attorneys, affiliates,
Released Party
Released Parties
Party may now have or hereafter suffer or acquire arising from or related to: (i) any Due
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Diligence Information, (ii) any condition of the Property or any current or future improvement
thereon, known or unknown by any Releasing Party or any Released Party, including as to the
extent or effect of any grading of the Development Parcels; (iii) any construction defects, errors,
omissions or other conditions, latent or otherwise, including environmental matters, as well as
economic and legal conditions on or affecting the Property, or any portion thereof; (iv) the
existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of
any Hazardous Materials at any time on, in, under, or from, the Property or any current or future
improvement thereon or any portion thereof; (v) Claims of or acts or omission to act of any
Governmental Authority or any other third party arising from or related to any actual, threatened,
or suspected Release of a Hazardous Material on, in, under, or from, about, or adjacent to the
Property or any current or future improvement thereon, including any Investigation or
Remediation at or about the Property or any current or future improvement thereon; and/or
(vi) arising from or related to the Tustin Legacy Backbone Infrastructure Program, any
community facilities district or the cost or extent thereof, or the amount of the Project Fair Share
Contribution or any community facilities district assessment against the Property, Development
Parcels and/or Improvements described in this Agreement; provided that the foregoing release by
the Releasing Parties shall not extend to (A) any breach by the City of any of the representations
or warranties of the City set forth in Sections 3.3 or 18.12 of this Agreement, (B) any breach by
the City of any of the covenants or obligations set forth in this Agreement or any Other
Agreement, (C) any Claim that is the result of the gross negligence or willful misconduct of the
City, or (D) any actions of the City or any of the Released Parties affecting a portion of the
Property which occur following the Close of Escrow with respect to such portion of the Property.
This release includes Claims of which Developer is presently unaware or which Developer does
not presently suspect to exist which, if known by Developer, would materially affect Developers
release of the Released Parties. Developer specifically waives the provision of California Civil
Code Section 1542, which provides as follows:
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
In this connection and to the extent permitted by law, Developer on behalf of itself, and the other
Releasing Parties hereby agrees, represents and warrants, which representation and warranty
shall survive eachClose of Escrow and the termination of this Agreement and shall not be
merged with any Quitclaim Deed, that (x) it realizes and acknowledges that factual matters now
unknown to it may have given or may hereafter give rise to Claims or controversies which are
presently unknown, unanticipated and unsuspected, (y) the waivers and releases in this
Section 4.5.2(f) have been negotiated and agreed upon in light of that realization and
(z) Developer, on behalf of itself and the other Releasing Parties, nevertheless hereby intends to
release, discharge and acquit the Released Parties from any such unknown Claims and
controversies to the extent set forth above which might in any way be included as a material
portion of the consideration given to the City by Developer in exchange for the Citys
performance hereunder.
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BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES
THAT (A) IT HAS READ AND FULLY UNDERSTANDS
THE PROVISIONS OF THIS SECTION, (B) IT HAS HAD
THE CHANCE TO ASK QUESTIONS OF ITS COUNSEL
ABOUT ITS MEANING AND SIGNIFICANCE, AND (C) IT
HAS ACCEPTED AND AGREED TO THE TERMS SET
FORTH IN THIS SECTION.
______________________ _______________________
CITYS INITIALS DEVELOPERS INITIALS
From and after the Retail Property Close of Escrow with respect to the Retail Property and from
and after the Healthcare Property Close of Escrow with respect to the Healthcare Property, this
release shall be an equitable servitude and a covenant running with the land comprising each
such Development Parcel for the benefit of the City Benefited Property and the City and each
Successor Owner owning all or any portion of such City Benefited Property burdening each such
Development Parcel and Developer and the Successor Owners owning all or any portion of each
such Development Parcel and all Persons claiming by, through or under Developer or any
Successor Owner of each such Development Parcel or any portion thereof for the period of such
Persons interest in the applicable Development Parcel or any portion thereof and for the
Additional Liability Period, if any, applicable to such Person and to further evidence its
effectiveness with respect to Developer and the Successor Owners of the Development Parcels,
shall be included in each Quitclaim Deed.
4.6Covenants; Preconditions to Close of Escrow
.
The following are covenants of Developer for the benefit of the City and conditions
precedent to the Healthcare Property Close of Escrow and the Retail Property Close Escrow, as
further described in this Section and in Sections 7.2.2 and 7.3.2, as applicable, and shall for the
benefit of the City be satisfied by Developer or Healthcare Developer, if applicable, not later
than the times specified for such conditions below or in the applicable Schedule of Performance.
Developer Financing Plan
. As of the Effective Date, Developer
Financing Plan
: (a) a
financial pro forma and development budget for the Retail Project and the Minimum
Horizontal Improvements setting forth a cash flow projection for operation of the Retail
Project and the Minimum Horizontal Improvements and sources and uses of funds and
evidencing that Developer has the equity available to construct and operate the Retail
Project and to meet its other obligations under this Agreement; (b) a cost breakdown for all
Development Costs anticipated to be incurred for the development of the Retail Project and
the Minimum Horizontal Improvements based upon government permits and approvals and
any design documents. Prior to the Retail Property Close of Escrow, Developer shall
provide an update to the Financing Plan containing any revisions to the information
previously provided and shall certify to the City either that the Financing Plan remains true
and correct or, as modified to reflect Developers expectation as to available funding and
costs, remains sufficient to pay through issuance of the Certificate of Compliance all
Development Costs of the Project and all other costs for the construction, marketing and
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lease of the Improvements as described in the Scope of Development. As a condition to
each Close of Escrow for the benefit of the City, the City shall have the right to approve or
disapprove the updated Financing Plan, in it is sole discretion, if the updated Financing
Plan evidences any material adverse change in the financial capacity of Developer, the
availability or terms of the sources of funding identified or the Development Costs of the
Project. Any modification, amendment or termination of the Retail Equity Funding Letter
or the funding approval of the REG capital allocation committee (or equivalent) described
therein without the consent of the City in its sole discretion (as further described in Section
4.6.2(b)) shall be a Potential Default by Developer hereunder; provided, however, that
nothing in this sentence shall prohibit Developer from modifying the terms of the Retail
Equity Funding Letter prior to the Retail Property Close of Escrow
actual development costs nor shall it prohibit Developer from terminating the DDA prior to
the expiration of the Due Diligence Period as set forth in Section 5.1.
Additional Assurances of Developer; Equity Funding Letter
.
Substantially concurrently with the execution of this Agreement, but in all events on or
before the Effective Date, Developer shall have caused REG to provide the City with:
a fully executed copy of an equity funding letter in form and
substance approved by the City in its sole discretion dated as of or prior to the Effective Date
RetailEquity Funding Letter
entirety, and without requirement for third party financing other than as set forth in the Equity
Funding Letter:
Developers costs and expenses necessary to obtain the
Applicable Approvals and Development Permits and to comply with the other obligations of
Developer under this Agreement required to be satisfied prior to the Retail Property Close of
Escrow,
acquisition of the Property,
all costs of development of the Project and the construction,
marketing and sale or Lease of all Improvements as further described in the Scope of
Development through Recording of a Certificate of Compliance, and
the covenants of the Developer contained in this Agreement;
Original REG Certificate
financial services or other appropriate corporate officer
confirming that REG has committed to fund the development of the Project in accordance with
the Retail Equity Funding Letter and that the Retail Equity Funding Letter is in full force and
effect and has not been modified, and will not be modified, amended or terminated without the
prior consent of the City in its sole discretion; and further, that the approval of
allocation committee as described in the certain Letter from Laura Clark, Vice President,
Financial Services of REG, dated September 8, 2015 re: The Village at Tustin Legacy
Development of Tustin Legacy Parcel 1C Tustin, CA, which comprises the Retail Equity
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Funding Letter from REG, will not be modified, amended or terminated without the prior
corporate
officer to bind REG and authorization to execute the Retail Equity Funding Letter and to the
accuracy and correctness of and attaching the following:
A certificate of formation and California foreign entity
registration for REG;
Evidence of authority of the individual(s) executing the
Equity Funding Letter to bind REG and to execute Equity Funding Letter;
Copies of all resolutions or other necessary actions, if any,
taken by REG to authorize the execution of the Retail Equity Funding Letter; and
Certificates of good standing and tax good standing issued
by the Florida Secretary of State and by the California Secretary of State within thirty (30)
calendar days of the Effective Date.
Notwithstanding anything to the contrary contained herein, as an
alternative to providing one Retail Equity Funding Letter, Developer may provide the City with
Initial Retail Equity Funding Letter
an on or before the Effective Date that addresses the
Closing Retail Equity Funding
funding provided for in only Section 4.6.2(a)(i) above and a
Letter
prior to the Retail Property Close of Escrow that addresses the funding provided for in
Sections 4.6.2(a)(ii) through (iv).
Guaranty of Developer Obligations; REG Guaranty
.
Substantially concurrently with, but in all events prior to the
Retail Property Close of Escrow, Developer shall cause REG to deliver to the City:
A fully executed and effective guaranty in substantially the
form and substance of the guaranty set forth in Attachment 14A or as otherwise acceptable to the
REG Guaranty
Recording of the Certificate of Compliance for the Retail Project and shall guarantee, among
other things:
Upon the Retail Property Close of Escrow, payment
of all Development Costs for the Completion of the Minimum Retail Improvements that are to be
constructed or caused to be constructed by Developer (i.e., excluding any Buildings to be
constructed by any Pad Transferee) and any additional Improvements upon the Retail Parcel for
which construction has been commenced or caused to be commenced by Developer (i.e.,
excluding any Improvement to be constructed by Pad Transferees and any obligation to remove
any such improvements, including the Improvements, which are not completed and/or are
abandoned);
Upon the Retail Property Close of Escrow, payment
of all Development Costs for the Completion of the Minimum Horizontal Improvements to be
constructed or caused to be constructed by Developer upon the Healthcare Parcel (i.e., excluding
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any Improvement to be constructed by Healthcare Developer or any Pad Transferee and any
obligation of Developer to remove such improvements, including the Improvements, which are
not completed and or are abandoned);
Upon the Retail Property Close of Escrow, payment
of all Development Costs for Completion of the Minimum Horizontal Improvements;
Compliance with the Healthcare Transferor
Obligations and to the Ongoing Matters;
Payment of the Additional Purchase Price;
The indemnities and other obligations of Developer
pursuant to Sections 4.6.4(f), 5.5, 8.8, 8.9, 8.11, 8.12, 10.1, 10.2 and 18.12.1 of this Agreement;
The costs and expenses incurred by the City, if any,
in enforcement by the City of its rights and/or remedies under this Agreement with respect to
non-performance by Developer of its obligations under this Agreement and the Other
Agreements, including the exercise by the City of the Right of Repurchase or Right of Reversion
with respect to the Retail Parcels or any portion thereof (and following acquisition of the
Healthcare Property by Developer, but prior to Transfer of the Healthcare Property to Healthcare
Developer, the Healthcare Parcels not then conveyed to Healthcare Developer), but excluding the
Repurchase Price applicable to any Reacquired Property actually acquired by the City pursuant
to the Right of Repurchase; provided that the City shall be entitled to retain the Reacquired
Property so acquired in its entirety, notwithstanding any contribution or payment made by
Developer, or by REG pursuant to the REG Guaranty; and
Attorneys fees and costs incurred by the City in
connection with the enforcement of the Guaranty; and
-K report;
An updated
Updated REG Certificate
and correctness of the Original REG Certificate and attaching copies of the following: (w) a
certificate of formation and California foreign entity registration for REG; (x) evidence of
authority of the individual(s) executing the REG Guaranty to bind REG and to execute the REG
Guaranty, (y) copies of resolutions or other necessary actions taken by REG to authorize the
execution of the REG Guaranty, if any; and (z) certificates of good standing and tax good
standing issued by the Florida Secretary of State and by the California Secretary of State within
thirty (30) calendar days of the Retail Property Close of Escrow.
Upon each subsequent Transfer to a Developer prior to the Retail
Approval End Date for which Developer desires to replace the REG Guaranty as permitted by
Section 2.2.3(a)(iv), and as a condition to City review and approval, in its sole discretion, of the
proposed guarantors and proposed Guaranty, Developer shall cause the proposed guarantors to
deliver evidence of the financial capacity of the proposed guarantors, authority of the proposed
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guarantors to provide the Guaranty, and copies of all documents evidencing formation, good
standing and authority requested by the City.
Upon delivery to the City of a fully executed REG Guaranty,
REG and Developer shall have the right to terminate the Retail Equity Funding Letter without
further action or consent of the City
In the event of a Transfer by Initial Developer of all of its
interests in this Agreement pursuant to Section 2.2.3(a), the obligations imposed upon REG as
guarantor hereunder and under any REG Guaranty shall, as a condition to such Transfer, be,
either retained in full by REG or assumed by a guarantor meeting the requirements of Section
2.2.3(a)(iv)(B) and approved by the City in its sole discretion. If the City is not satisfied with the
financial status of the proposed guarantor, the City shall be entitled to obtain the financial
information of other members and/or partners of the proposed development entity (and their
respective members, partners, shareholders and/or other owners at each tier until substantial
assets are identified) and such other financial information as the City may request to demonstrate
acity and capability to perform its obligations
under this Agreement.
Healthcare Developer Financing Plan
.
If Healthcare Developer has not been approved by the City prior
to the Effective Date, then upon the earlier of (i) ninety (90) calendar days prior to the Healthcare
Property Close of Escrow and (ii) twenty (20) Business Days prior to a proposed Transfer
pursuant to Section 2.2.3(b), Developer shall cause Healthcare Developer to provide the City
with the information required by Section 2.2.3(b)(i) and (ii) for the purposes of confirming that
Healthcare Developer has sufficient funds for construction of the Minimum Healthcare
Improvements and for operation of such facilities consistent with the terms of this Agreement
and the following additional information: (A) a development budget for the Healthcare Project
setting forth a cash flow projection for operation of the Healthcare Project and sources and uses
of funds and evidencing that Healthcare Developer has the equity available to construct and
operate the Healthcare Project and to meet its other obligations under this Agreement; (B) a cost
breakdown for all Development Costs anticipated to be incurred for the development of the
Healthcare Project based upon government permits and approvals and any design documents;
(C) a true copy of a commitment and, if within ninety (90) calendar days from the Healthcare
Property Close of Escrow, draft transaction documents from a Qualified Institutional Lender
with respect to any Construction Loan proposed to be utilized by Healthcare Developer on the
Other Healthcare Parcels only (and specifically excluding the Medical Office Parcel); and
(D) evidence reasonably satisfactory to the City (including an HCD Equity Funding Letter as
further described in Section 4.6.4(b)) that Healthcare Developer has sufficient additional funds
available and is able to commit such funds to meet its obligations under this Agreement and the
Healthcare Financing Plan
As of the Healthcare Property Close of Escrow, Healthcare
HCD
Developer, pursuant to an
Equity Funding Letter
, or through other means acceptable to the City in its sole discretion,
shall certify or shall cause the Healthcare Controlling Person or the Healthcare Guarantor
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approved by the City to certify, as of the Healthcare Property Close of Escrow, that Healthcare
Developer will have the equity capital and financial capacity, without requirement of third party
financing other than as set forth in a Permitted Mortgage approved by the City in accordance
with Sections 2, 4.6.4(c) and 17 of this Agreement, to: (i) acquire the Healthcare Property;
(ii) pay, through Recording of a Certificate of Compliance for the Healthcare Parcel, all costs of
development of the Healthcare Project on the Healthcare Parcel, including all Healthcare
Horizontal Improvements and the construction, marketing and sale or lease of all Healthcare
Vertical Improvements upon the Healthcare Parcel as further described in the Scope of
Development; and (iii) enable the Healthcare Developer to perform and satisfy all the covenants
of the Healthcare Developer contained in this Agreement. Such HCD Equity Funding Letter
shall be accompanied by a certification in favor of the City from the Person delivering such letter
in the form of Attachment 13B or Attachment 13C, as applicable, and further certifying that such
Person has committed to fund the development of the Project in accordance with the HCD
Equity Funding Letter and that the HCD Equity Funding Letter is in full force and effect and has
not been modified, and will not be modified, amended or terminated without the prior consent of
the City in its sole discretion; and further, that the approval of su
committee (or equivalent) as described in the HCD Equity Funding Letter will not be modified,
amended or terminated without the prior consent of the City in its sole discretion; and certifying
s corporate officer to bind such Person. Any modification,
amendment or termination of the Healthcare Equity Funding Letter or the approval of the capital
allocation committee (or equivalent) of the Controlling Person of Healthcare Developer or HCD
Guarantor without the consent of the City in its sole discretion shall be a Potential Default by
Healthcare Developer hereunder; provided, however, that nothing in this sentence shall prohibit
Healthcare Developer from modifying the terms of the HCD Equity Funding Letter prior to the
nor shall it prohibit Developer from terminating the DDA prior to the expiration of the Due
Diligence Period as set forth in Section 5.1.
With respect to the Other Healthcare Parcels only (and
specifically excluding the Medical Office Parcel), the City will accept: (i) one (1) Construction
Loan provided by a Permitted Mortgagee procured by a Healthcare Developer which is on terms
not materially different than the financing terms set forth on the Healthcare Financing Plan;
(ii) as a Permitted Mortgagee any lender that is a Qualified Institutional Lender, or any lender
that is not a Qualified Institutional Lender so long as such lender is specifically identified in the
Healthcare Financing Plan approved by the City prior to the Healthcare Property Close of
Escrow or as otherwise agreed by the City in its sole discretion.
Prior and as a condition precedent to the Healthcare Property
Close of Escrow for the benefit of the City, Healthcare Developer shall provide an update to the
Healthcare Financing Plan containing any material revisions to the information previously
provided and shall certify to the City either that the Healthcare Financing Plan remains true and
correct or, as modified to reflect Healthcare Developers expectation as to available funding,
financing terms and costs, remains sufficient to pay through Recording of the Certificate of
Compliance all Development Costs of the Healthcare Project and all other costs for the
construction, marketing and lease of the Improvements as described in the Scope of
Development for the Healthcare Project, which shall be satisfactory to the City in its sole
discretion. If the City is not satisfied with the financial status of Healthcare Developer following
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review of the Healthcare Financing Plan and the financial capacity of the Healthcare Guarantors,
the City shall be entitled to obtain the financial information of other members and/or partners of
the proposed development entity (and their respective members, partners, shareholders and/or
other owners at each tier until substantial assets are identified) and such other financial
information as the City may request to demonstrate Healthcare Developers financial capacity
and capability to perform its obligations under this Agreement. The City shall have the right to
disapprove the updated Healthcare Financing Plan, in its sole discretion, if in the determination
of the City the updated Healthcare Financing Plan provided by Healthcare Developer evidences
any material adverse change in the financial capacity of Healthcare Developer or the Permitted
Mortgagee, the availability or terms of the Construction Loan or other sources of funding
identified or the Development Costs of the Healthcare Project.
Developer shall incorporate into the HCD Agreements (including
the SN PSA, if applicable) the automatic termination of such agreement in the event that the
City, prior to the Healthcare Property Close of Escrow, shall determine that it does not approve
the Healthcare Developer or the Healthcare Guarantor(s) or such Healthcare Developer or
Healthcare Guarantors do not meet the other requirements or conditions of this Agreement,
including the financial standards and guarantees required by the City. The effectiveness of any
HCD Agreements shall be conditioned on (i) the approval by the City of the Healthcare
Developer and the Healthcare Guarantors, and (ii) the satisfaction of the conditions set forth in
Section 2.2.4, and this Section 4.6.4. For avoidance of doubt, as further set forth in Section
18.21, Healthcare Developer shall obtain no rights under this Agreement and shall not be a third-
party beneficiary before the occurrence of the Healthcare Property Close of Escrow.
Developer shall indemnify, protect, defend, assume all
responsibility for and hold harmless the City and the City Indemnified Parties with counsel
reasonably acceptable to the City, from and against any and all Claims arising from or relating to
the negotiations between Developer and any proposed or approved Healthcare Developer, the
HCD Agreements, the HCD Assignment or any other agreement between a proposed or
approved Healthcare Developer and Developer.
HCD Guaranty
.
As a condition precedent to the Healthcare Property Close of
Escrow, Healthcare Developer shall cause the Controlling Person of Healthcare Developer or
other guarantors of Healthcare Developer acceptable to the City in its sole discretion (each, a
Healthcare GuarantorHealthcare Guarantors
Developer and the City:
a fully executed and effective HCD Guaranty in
substantially the form and substance of the guaranty set forth in Attachment 14B or as otherwise
acceptable to the City in its sole discretion which shall remain in effect until the Recording of the
Certificate of Compliance for the Healthcare Project and shall guarantee, among other things:
upon the Healthcare Property Close of Escrow,
payment of all Development Costs and the Completion of the Minimum Healthcare
Improvements that are to be constructed, or caused to be constructed, by Healthcare Developer
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(i.e., excluding any Buildings to be constructed by Pad Transferees) and any additional
Improvements upon the Retail Parcel for which construction has been commenced or caused to
be commenced by Developer (i.e., excluding any Improvement to be constructed by End Users)
and Development Costs to remove any such improvements, including the Improvements, which
are not completed and/or are abandoned;
the indemnities and other obligations of Healthcare
Developer pursuant to Sections 5.5, 8.8, 8.9, 8.11, 8.12, 10.1, 10.2 and 18.12.1 of this
Agreement, and
the costs and expenses incurred by the City, if any,
in enforcement by the City of its rights and/or remedies with respect to non-performance by
Healthcare Developer of its obligations under this Agreement and the Other Agreements,
including the exercise by the City of the Right of Repurchase or Right of Reversion with respect
to the Healthcare Parcel or any portion thereof, but excluding the Repurchase Price applicable to
any Reacquired Property actually acquired by the City pursuant to the Right of Repurchase;
provided that the City shall be entitled to retain the Reacquired Property so acquired in its
entirety, notwithstanding any contribution or payment made by Developer, Healthcare
Developer, REG or HCD Guarantor pursuant to the HCD Guaranty; and
connection with the enforcement of the HCD Guaranty; and
a certification in favor of the City from an officer of each of
the Healthcare Guarantors in the form of the Certificate attached as Attachment 13B (the
Healthcare Guarantor Certificate
copies of the following: (w) a certificate of formation and California foreign entity registration
for Healthcare Guarantors; (x) evidence of authority of the individuals executing the HCD
Guaranty to bind Healthcare Guarantor(s) and to execute the HCD Guaranty, (y) copies of all
resolutions or other necessary actions taken by Healthcare Guarantor(s) to authorize the
execution of the HCD Guaranty; (z) certificates of good standing and tax good standing issued
by the Secretary of State of the state of formation or incorporation of the HCD Guarantors and
by the California Secretary of State within thirty (30) calendar days of the Effective Date.
Upon each subsequent Transfer of the Healthcare Property to a
Healthcare Developer prior to the Recording of the Certificate of Compliance with respect to the
Healthcare Parcel and for which Healthcare Developer desires to replace the HCD Guaranty as
permitted by Section 2.2.3(b), and as a condition to City review and approval, in its sole
discretion, of the proposed guarantors and proposed HCD Guaranty, Healthcare Developer shall
cause the proposed guarantors to deliver evidence of the financial capacity of the proposed
guarantors, authority of the proposed guarantors to provide the Guaranty, and copies of all
documents evidencing formation, good standing and authority requested by the City.
City Approvals
. Developer shall have applied for all Applicable
Approvals by the time provided in the applicable Schedule of Performance. Developers
application for the Applicable Approvals shall be consistent with the Scope of
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Development and the terms and conditions of this Agreement. Nothing contained in this
Agreement shall relieve Developer from any obligations imposed by the City on Developer
in connection with recording the Parcel Map including any bonding requirements related
thereto.
Insurance
. Prior to or concurrently with the execution of this
Agreement by Developer, Developer shall have obtained and delivered to the City a binder
or certificate evidencing the insurance required by Article 11 effective upon the mutual
execution of this Agreement by Developer and the City.
Declaration of Ownership; Additional Documentation
.
Developer, prior to the Effective Date, Developer or Healthcare Developer prior to or
concurrently with each respective Close of Escrow, and each Transferee or Controlling
Party, prior to or concurrently with the Transfer or Transfer of Control, as applicable, shall
provide to the City: (a) a declaration certified by an officer authorized to execute
documents on behalf of Developer, Healthcare Developer, Transferee or Controlling Party,
as applicable and generally in the form of Attachments 13A 13B, 13C, 18A or 18B, as
applicable, that the following documentation submitted by such entity to the City is true
and correct and attaching: copies of (i) a certificate of formation, California foreign entity
registration, and a fully executed limited liability company agreement (including any
amendments thereto) articles of incorporation or bylaws of such entity or other formation
documents, as applicable; (ii) copies of all resolutions or other necessary actions taken by
such entity to authorize the execution of this Agreement, if applicable, and any other
documents or instruments required by this Agreement; (iii) certificates of good standing
issued by the Secretary of State in the state in which Developer (or Transferee, as
applicable) is formed or incorporated and by the California Secretary of State within thirty
(30) calendar days prior to the Effective Date or the proposed date of the Transfer, as
applicable; and (iv) a copy of any Fictitious Business Name Statement if any, as published
and filed with the Clerk of Orange County; and (b) a certification by such entity that the
Financing Plan or the Healthcare Financing Plan, as applicable, as the same may have been
updated in accordance with the requirements of Section 4.6.1 or 4.6.4 remains true and
correct and the Project budget for the Minimum Improvements remains a reasonable
budget.
Developers Due Diligence Investigation.
5.
5.1Due Diligence Period
.
Developer acknowledges that while the City has been negotiating this Agreement with
Developer, Developer has had extensive access to the Property within which to undertake such
physical inspections and other investigations of, and inquiries concerning, the Property as may
be necessary to allow Developer to evaluate the physical characteristics of the Property, as well
as such other matters as may be deemed by Developer to be reasonably necessary to generally
evaluate the Property and determine the feasibility and advisability of Developers purchase and
redevelopment of the Property with the Project. In addition to the due diligence investigation
previously conducted by Developer, Developer shall have an additional period of time as
identified herein to undertake specific additional inspections and investigations as are necessary
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and specifically permitted herein to allow Developer to continue to evaluate the feasibility and
advisability of Developers purchase of the Property. Developers obligation to consummate this
transaction shall be contingent upon Developers express written approval, in Developers sole
discretion, of the results of such inspection, examination and other due diligence with regard to
the Property and its suitability for construction of the Project as Developer may elect to conduct
during the period commencing on the Effective Date and ending on the date which is sixty (60)
Due Diligence
calendar days following the Effect
Period
complete such investigation. As further described in Section 5.3 of this Agreement, Developer
Diligence Termination Notice
may give Ci
Due Diligence Period stating whether Developer elects to terminate this Agreement or waive its
due diligence contingency and proceed to the Close of Escrow with respect to the Project, subject
to the other terms and conditions set forth in this Agreement. Although Close of Escrow with
respect to the Property may occur concurrently or in two separately timed closings, any waiver of
due diligence contingency or Diligence Termination Notice under this Section shall apply to the
entirety of the Property.
5.2No Financing Contingency
.
Developer represents and warrants that it has examined its ability to purchase the
Property and to develop the Project, including Developers ability to finance such construction
without the requirement for any Mortgage. Accordingly, Developer acknowledges and agrees
that Developers purchase of the Property is subject to no financing contingency whatsoever with
respect to either private or public financing and that its acquisition of third party financing for the
Project is not a condition precedent to Developers obligation to purchase the Property or of its
ability to fund construction of the Project.
5.3Termination of Agreement
.
If Developer elects to terminate this Agreement on or before the end of the Due Diligence
Period pursuant to its termination rights set forth in Section 5.1 or 6.3, this Agreement shall
automatically terminate on the date of such election or deemed election, as applicable, and
thereafter, neither Party shall have any further obligations under this Agreement (subject to the
provisions that expressly survive the termination of this Agreement); provided, however that,
Escrow Holder shall return the Purchase Price Deposit to Developer, less Developers share of
any title and escrow cancellation fees of Escrow Holder and outstanding City Transaction
Expenses to the extent not covered by the City Costs Deposit, if any. If Developer fails to give
the Diligence Termination Notice on or before the end of the Due Diligence Period, then
Developer will be deemed to have disapproved the Due Diligence matters and shall be deemed to
have delivered a Diligence Termination Notice and elected to terminate this Agreement pursuant
to Section 5.1. The termination of this Agreement pursuant to this Section 15.4 shall constitute a
waiver of any and all rights and Claims either Party may have against the other, except as
expressly provided above.
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5.4Limited License
.
The City grants to Developer for use by Developer, and the Developer Representatives,
which prior to Transfer to the Healthcare Developer pursuant to Section 2.2.3(b) shall include
any proposed Healthcare Developer, a limited and revocable license to enter upon the
Development Parcels for purposes of (a) conducting Developers due diligence inspection and/or
(b) obtaining data and making surveys and tests necessary to carry out this Agreement, provided
that, prior to the effectiveness of such license, Developer shall: (i) deliver to the City written
evidence that Developer has procured the insurance required under Section 11.1; (ii) give the
City twenty-four (24) hours telephonic, electronic mail or written notice of any intended access
which involves work on the Development Parcels or may result in any impairment of the use of
the Property or any portion thereof or any adjacent property by any then-current owners,
occupants, or contractors; (iii) access the Property in a safe manner; (iv) conduct no
environmental testing, sampling, invasive testing, or boring without the written consent of the
City; (v) allow no dangerous or hazardous condition to be created or caused on the Property;
(vi) comply with all Governmental Requirements and obtain all permits required in connection
with such access; and (vii) conduct inspections and testing during normal business hours and
only after obtaining the Citys prior consent, which shall not be unreasonably withheld. This
limited license shall commence on the Effective Date, may be revoked by the City during the
continuation of any Default by Developer, or upon termination of this Agreement by any Party,
and shall be automatically revoked and terminated upon the earlier to occur of (a) a delivery or
deemed delivery by Developer of a Diligence Termination Notice, (b) termination of this
Agreement, (c) upon the Retail Property Outside Closing Date if the Retail Property Close of
Escrow has not then occurred, and (d) as to the Healthcare Property, if the Retail Property Close
of Escrow has previously occurred, upon the earlier of the Healthcare Property Outside Closing
Date or the Healthcare Property Close of Escrow, provided that this limited license shall not be
used for construction purposes, and a license meeting the requirements of Section 8.2.5 shall be
required for construction of the Minimum Horizontal Improvements on the Healthcare Parcel
prior to the Healthcare Property Close of Escrow.
5.5Indemnity
.
Developer, on behalf of itself and its successors and assigns, including Healthcare
Developer, hereby agrees to protect, indemnify, defend and hold harmless the City Indemnified
Parties from and against any and all Claims to the extent arising from or related to: (a) the acts
and omissions of Developer and/or the Developer Representatives arising from or related to the
presence, activities or work on or use of the Development Parcels or from the exercise of the
license provided in Section 5.4 by Developer or the Development Representatives, including
with respect to any inspections, surveys, tests, Investigations and studies carried out by
Developer or the Developer Representatives on or adjacent to the Development Parcels, (b) entry
onto the Development Parcels by Developer or the Developer Representatives in connection with
this Agreement, and (c) bodily injury to or death of any person (including any employee or
contractor of the City Indemnified Parties) or damage to or loss of use of property resulting from
whether occurring prior to or following the Effective Date; provided that the foregoing
indemnity shall not apply to the extent of (i) the gross negligence or willful misconduct of the
City or any City Indemnified Party, (ii) Hazardous Materials existing on the Development
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Parcels prior to Close of Escrow unless such Hazardous Materials condition is exacerbated by, or
Developer shall keep the Development Parcels free and clear of any mechanics liens or
materialmens liens related to Developers inspection and/or Investigation of the Property. The
indemnification by Developer set forth in this Section 5.5 shall survive (A) eachClose of Escrow
and shall not be merged into any Quitclaim Deed, and (B) any termination of this Agreement
prior to the occurrence of the Second Close of Escrow.
5.6Review of Certain Records and Materials
.
The City shall, within ten (10) Business Days of the Effective Date provide Developer
with copies of all City-produced plans, reports, studies, investigations and other materials the
City may have in its possession that are pertinent to the Property and/or development of the
Project; provided that the City makes no representation, warranty or guaranty regarding the
completeness or accuracy of such plans, reports, studies, investigations and other materials.
Developer shall also have the right to enter the Citys offices to review files and materials,
including the right to examine those books, records and files of the City relating to the
environmental and other condition of the Property which the City determines in its sole
discretion are not subject to attorney-client privilege or other privilege or disclosure rules. The
City agrees to make all such books, records, and files available to Developer and Developers
attorneys, accountants, and other representatives at City Hall any time during business hours on
Business Days upon reasonable notice from Developer.
5.7Communications with City and Third Parties
.
From and after the Effective Date, the Developer and the Developer Representatives
communications with the City shall be directly with the City Manager, who shall be the
administrator of this Agreement on behalf of the City, and such other employees, consultants,
and attorneys of the City from time to time as the City Manager may designate. In addition,
Developer shall have the right to communicate with staff of other public agencies; and with third
parties to all agreements affecting the Property in connection with the Developers proposed
purchase of the Property, and Developers development of the Project. The City staff shall have
the right, but not the obligation, to attend and participate in any and all meetings with other
public agencies, with regards to the Project. Upon request of the City, the Developer shall
promptly provide the City with a copy of each material item of correspondence (including
emails, letters, facsimiles, and any enclosures and attachments) sent to or received by the
Developer from third parties in connection with entitlement, community, or governmental
approval of the Project, provided, however, that Developer shall not be obligated to deliver any
such materials that based upon advice of counsel are determined to be subject to attorney-client
or other privilege.
Title; Survey.
6.
6.1Survey by Developer
.
Prior to the end of the Due Diligence Period, Developer, at Developers sole expense,
Survey
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Surveyor
Title Company. The Survey shall depict: (a) the boundaries of each of the proposed
Development Parcels (which boundaries shall be finalized pursuant to application by Developer
for the Parcel Map), (b) the location of all existing improvements (if any), existing perimeter
improvements (if any), and easements, roads, rights-of-way and encroachments located within
twenty (20) feet of the boundary of the Development Parcels, (c) all other Permitted Exceptions
susceptible to depiction on a map or survey identified by reference to the recording information
applicable to the documents creating them, and (d) any portion of the Development Parcels lying
within a flood hazard area.
6.2Permitted Exceptions
.
Developer, at Developers sole cost and expense, has caused the Title Company to
prepare and deliver to Developer and the City with respect to the Development Parcels the
preliminary title reports attached as Attachment 4 and may cause the Title Company to issue
Preliminary Title Reports
which the Title Company may issue an extended American Land Title Association Owners
ALTA Policy
Purchase Price of the applicable Parcel and such additional amounts as Developer may request of
Title Company. During the Due Diligence Period, Developer shall review the Preliminary Title
Reports and the other relevant documents referenced below, and may object to matters set forth
in the Preliminary Title Reports and request that the Title Company and/or the City remove from
the Title Policy those exceptions to title disapproved by Developer in the Preliminary Title
Permitted Exceptions
: (a) as of the last day
of the Due Diligence Period, all matters set forth on the Preliminary Title Reports, set forth on
the Survey, and not otherwise deleted from the Preliminary Title Reports nor endorsed over by
the Title Company; (b) the Other Agreements that are to be recorded pursuant to
Section 7.5.5(b); and (c) all covenants, restrictions and encumbrances, liens, exceptions, leases,
restrictions, deed restrictions and qualifications expressly set forth in or permitted or
contemplated by this Agreement or the Other Agreements. Notwithstanding anything to the
contrary in this Agreement, the City shall (x) remove from title all exceptions created by the City
that are not Permitted Exceptions and (y) deliver the Property to Developer free and clear of all
monetary liens other than (i) liens for real property taxes that are not yet delinquent and (ii) liens
caused by or arising from or related to work performed by Developer or Healthcare Developer
upon the Property.
6.3Supplemental Title Reports
.
If, after the end of the Due Diligence Period, the Title Company discloses additional
matters that affect title to either Parcel, then within ten (10) calendar days after Developers
Supplemental
Title Report
ovide the City a copy of such Supplemental Title Report and
shall specify in writing Developers disapproval of any item or exception shown on such
Supplemental Title Report not previously included in the Preliminary Title Reports and that is
Disapproved Exception
not acceptabls suggested
cure thereof; provided, that Developer shall not have the right to disapprove any item or
exception specifically consented to by Developer, including all exceptions arising pursuant to
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this Agreement and all matters appearing on the Preliminary Title Report. If Developer
designates a Disapproved Exception, the City shall use commercially reasonable efforts to
remove the same if it was caused or permitted by the City subsequent to the Effective Date. If
the City is not able to remove such Disapproved Exception (notwithstanding the use of such
efforts), then the City may, subject to the last sentence of Section 6.2, elect not to cure such
ve remedy with respect to a Disapproved Exception
shall be: (a) if such Disapproved Exception was caused or permitted by the City, then, to accept
such Disapproved Exception and proceed to take title to the Property in the manner set forth in
this Agreement and with a reduction in the Base Purchase Price applicable to such Parcel in an
amount reasonable necessary (as determined by the City and Developer in their respective
reasonable discretion) to compensate Developer for the cost to remove, or the diminution in the
value of the Property caused by, the Disapproved Exceptions, provided that such reduction shall
not exceed One Hundred Thousand Dollars ($100,000.00), or if otherwise, to accept such
Disapproved Exception and proceed to take title to the Property in the manner set forth in this
Agreement without reduction in the Base Purchase Price applicable to such Parcel, in each case,
without cause of action hereunder against the City, or (b) to provide written notice to the City
within five (5) calendar days after the Citys election or deemed election, of Developers election
to terminate the applicable Escrow, in which case, (i) if the Retail Property Close of Escrow shall
not have occurred prior to issuance of the relevant Supplemental Title Report, the Purchase Price
Deposit, to the extent previously paid by Developer shall be refunded to Developer in
accordance with Section 5.3 and this Agreement shall terminate or (ii) if the Retail Property
Close of Escrow shall have occurred prior to issuance of a Supplemental Title Report for the
Healthcare Parcel, then upon exercise by the Developer of its rights under this clause (b), this
Agreement shall terminate only as to the Healthcare Parcel, and the Agreement shall remain in
full force and effect with respect to the Parcel and Improvements conveyed to Developer. In the
event Developer shall not have terminated the applicable Escrow under clause (b) of the
preceding sentence, then all matters and exclusions or exceptions from title insurance coverage
shown in such Supplemental Title Report which Developer shall have accepted (or been deemed
to have accepted) pursuant to this Section 6.3 (other than those which the City caused or
permitted or has agreed to cure as provided in this Section 6.3), together with all Permitted
Permitted Exceptions
Exceptions described in Section 6
6.4ALTA Policy; Endorsements
.
It shall be a condition precedent to Developers obligation to close Escrow that the Title
Company issue the ALTA (Extended Coverage) Policy with policy amount equal to the Base
Purchase Price for the Property being acquired and subject only to the Permitted Exceptions.
Developer shall have the right, at its sole expense, to request and obtain additional ALTA
coverage for the value of the development cost of the Project and any title endorsements as
Developer Title Endorsements
hat the issuance
of such additional ALTA Coverage and the Developer Title Endorsements shall not delay any
Close of Escrow and shall not be a condition precedent to any Close of Escrow. Developer shall
pay for all costs attributable to (a) the ALTA Policy other than the premium attributed to so-
called standard coverage in the amount of the Base Purchase Price for the Property being
acquired, (b) the cost of all Developer Title Endorsements, and (c) the cost of a lenders policy of
title insurance, if any.
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Close of Escrow.
7.
7.1Time and Place of Close of Escrow
.
Healthcare Property Close of Escrow
.
Provided that Developer elects to acquire the Option (as defined
in Section 7.1.1(b) below), then, subject to the terms of Section 7.1.1(b) below, the Healthcare
Property Close of Escrow shall take place on that date which is twenty (20) Business Days
following the last to occur of the satisfaction of the Developer Healthcare Property Closing
Conditions set forth in Sections 7.2.1(c) through (h) hereof and the City Healthcare Property
Closing Conditions set forth in Section 7.2.2(c) through (l) hereof (or the waiver thereof by the
Healthcare Property Closing Date
no event prior to the Retail
Property Close of Escrow nor later than sixty (60) days after the last day of the Option Term (as
Healthcare
defined below) (as the same may be extended pursuant to Section 7.1.3,
Property Outside Closing Date
, which date shall not be subject to extension due to Force
Majeure Delay. The Healthcare Property Close of Escrow shall be subject to the satisfaction (or
waiver by the Party benefited by such condition) of all of the conditions set forth in Section 7.2,
and shall take place at the offices of Escrow Holder, or at such other place as the City selects.
If, by the Retail Property Close of Escrow, Developer has not
entered into the HCD Agreements with a Healthcare Developer approved by the City in its sole
discretion in accordance with this Agreement, to acquire the Healthcare Parcel and to assume the
obligations of Healthcare Developer under this Agreement, or the City has not approved SN or
Hoag as Healthcare Developer, or the Approved Healthcare Developer otherwise fails to
consummate the acquisition of the Healthcare Property concurrently with the Retail Property
Close of Escrow for any reason, then, Developer shall have the right to seek an alternate
Healthcare Developer, the Healthcare Property Closing Date shall be postponed as set forth
below, and provided that Developer delivers to the City the First Option Payment (as defined
below) Developer shall have the right (but not the obligation) to acquire the Healthcare Property
Option
(the ) at any time prior to the first (1st) anniversary of the Retail Property Close of
First Option Term
Escrow (the ). As consideration for the Option, Developer shall pay the
First Option Payment
City Two Hundred Fifty Thousand Dollars ($250,000.00) (the ). If
Developer does not exercise the Option during the First Option Term, then, provided that (i) to
the satisfaction of the City in its sole discretion, (A) Developer is diligently working to identify
and enter into an agreement with an alternate Healthcare Developer and (B) if Developer has
identified an alternate Healthcare Developer, Developer is diligently working to obtain the City's
approval of such alternate Healthcare Developer in accordance with this Agreement, and
(ii) Developer delivers an additional Two Hundred Fifty Thousand Dollars ($250,000.00) to the
Second Option Payment
City (the ), then, Developer shall have the right to exercise the
Option at any time prior to the second (2nd) anniversary of the Retail Property Close of Escrow
Second Option TermOption Term
(the and collectively with the First Option Term, the ).
Healthcare
Both the First Option Payment and the Second Option Payment (collectively, the
Property Option Payment
) shall be credited against the Healthcare Property Purchase Price
and shall be non-refundable to Developer except in the event of City's default or as otherwise set
forth in the Agreement.
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If Developer does not deliver the First Option Payment to the
City concurrently with the Retail Property Close of Escrow, then (1) the terms of this Agreement
the Healthcare Parcel and the Healthcare Provisions shall
be deemed terminated, and (2) the City shall be released from its obligation hereunder to sell the
Healthcare Property to the Developer and thereafter the Healthcare Property shall not be
encumbered by this Agreement; provided, however, that Developer shall continue to have the
obligation to perform the Minimum Horizontal Improvements, provided that the Minimum
Horizontal Improvements on the Healthcare Property shall be limited to the Healthcare Rough
Grading and the Healthcare Perimeter Landscaping.
During the Option Term, Developer may exercise the Option by
providing the City with no less than sixty (60) days prior written notice of its election to acquire
the Healthcare Property provided that the City has previously approved (1) the proposed
Healthcare Developer as the Approved Healthcare Developer and (2) the Transfer to the
Approved Healthcare Developer in accordance with this Agreement or that Developer
concurrently with such notice provides to the City, for City approval, the documentation required
pursuant to Section 2.2.3(b) and 4.6 for City approval of such proposed Healthcare Developer
and of the terms of the Transfer to such Person. Developer's acquisition shall be in accordance
with, and subject to, the terms of this Agreement.
Retail Property Close of Escrow
. The Retail Property Close of
Escrow shall take place on that date which is twenty (20) Business Days following the last
to occur of the satisfaction of the Developer Retail Property Closing Conditions set forth in
Sections 7.3.1(c) through (i) hereof and the City Retail Property Closing Conditions set
forth in Section 7.3.2(c) through (h) hereof (or the waiver thereof by the applicable Party)
Retail Property Closing Date
but in no event later than December 16, 2016 (as
Retail Property Outside
the same may be extended pursuant to Section 7.1.3,
Closing Date
, which date shall not be subject to extension due to Force Majeure Delay.
The Retail Property Close of Escrow shall be subject to the satisfaction (or waiver by the
Party benefited by such condition) of all of the conditions set forth in Section 7.3, and shall
take place at the offices of Escrow Holder, or at such other place that the City selects.
Extension of Closing Dates; Termination
. If Developer
intends to have the Retail Property Close of Escrow and the Healthcare Property Close of
Escrow occur concurrently, then the Healthcare Property Closing Date and the Retail
Property Closing Date (and the Healthcare Property and Retail Property Outside Closing
Date(s)) may be each extended by Developer (a) for up to ninety (90) days if Developer is
seeking a specific plan amendment for the development of either Property; or (b) upon
mutual written agreement of the Parties; provided, that except through exercise of the
Option as described in Section 7.1.1(b), in no event shall the Healthcare Property Outside
Closing Date be extended beyond the earlier of the Retail Property Close of Escrow or the
Retail Property Outside Closing Date. In the event that the Retail Property Close of
Escrow does not occur on or prior to the Retail Property Outside Closing Date, then,
subject to the provisions of Section 15 or any agreement by the Parties (each in its sole
discretion) to extend the Retail Property Outside Closing Date, this Agreement shall
terminate in its entirety as of the Retail Property Outside Closing Date. In the event that
the Healthcare Property Close of Escrow does not occur on or prior to the Healthcare
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Property Outside Closing Date, then, subject to the provisions of Section 15, this
Agreement shall terminate as of the Healthcare Property Outside Closing Date solely as to
the Healthcare Property, Healthcare Developer and Healthcare Project.
7.2Conditions Precedent to Healthcare Property Close of Escrow
.
Developer Healthcare Property Closing Conditions
.
Developers obligation (and if the Healthcare Property Close of Escrow does not occur
concurrently with the Retail Property Close of Escrow, the terms hereof shall be subject to
Developer exercising the Option) (a) to purchase the Healthcare Property and (b) to
complete all requirements for the Healthcare Property Close of Escrow is subject to and
conditioned upon the satisfaction of, or Developers express written waiver of, each of the
Developer Healthcare
Property Closing Conditions
sing Date.
Document Deliveries. Not later than two (2) Business Days prior
to the Healthcare Property Close of Escrow, the City shall have executed and delivered to
Escrow Holder the following documents, in each case (where applicable) substantially in the
form and substance of the instruments attached as Attachments to this Agreement, unless
otherwise agreed by the Parties, each in its sole discretion:
if not previously Recorded, the Memorandum of DDA,
acknowledged and in Recordable form;
if not previously Recorded, the Special Restrictions,
acknowledged and in Recordable form;
a Quitclaim Deed for the Healthcare Property,
acknowledged and in Recordable form;
any instrument requested by a Party and agreed upon by
the other Parties, to confirm and/or re-grant the easements, conditions, covenants and restrictions
set forth in Slope Parcel Easement and Landscape Installation and Maintenance Agreement with
respect to the Healthcare Property, as further described therein and in Section 12.4 of this
Slope Parcel Agreement Confirmation
Agreement
if not previously Recorded, the CC&Rs, acknowledged and
in Recordable form;
Californias Real Estate Withholding Exemption Certificate
Form 593-C;
a reaffirmation of the Citys representations and warranties
set forth in Sections 3.3 and 18.12, in the form attached hereto as Attachment 17, which
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reaffirmation shall identify any representation or warranty which is not, or no longer is, true and
correct and explaining the state of facts giving rise to the change. In no event shall the City be
liable to Developer for, or be deemed to be in Default under this Agreement by reason of, any
breach of representation or warranty which results from any change that (A) occurs between the
Effective Date and the date of the Healthcare Property Close of Escrow, and (B) is expressly
permitted under the terms of this Agreement or is beyond the reasonable control of the City to
prevent. The occurrence of a change in a representation and warranty shall, if materially adverse
to Developer or the Healthcare Property, as determined by Developer in Developers reasonable
business judgment, constitute the non-fulfillment of the condition set forth in Section 7.2.1(h),
unless such matter is cured at least one (1) Business Day prior to the Healthcare Property Close
of Escrow. If, despite changes or other matters described in the Citys reaffirmation certificate,
the Healthcare Property Close of Escrow occurs, the Citys representations and warranties set
forth in Sections 3.3 and 18.12 of this Agreement shall be deemed to have been modified by all
statements made in such certificate;
City consent to the HCD Assignment between Developer
and Healthcare Developer, acknowledged and in Recordable form;
such proof of the Citys authority and authorization to enter
into this Agreement and consummate the transactions contemplated hereby, and such proof of
the power and authority of the individual(s) executing and/or delivering any instruments,
documents or certificates on behalf of the City to act for and/or bind the City as may be
reasonably required by Title Company and/or Developer; and
such other documents or instruments as Escrow Holder
may reasonably request to consummate the transaction contemplated in this Agreement.
Title Policy. Subject to Section 6.3, the Title Company shall be
unconditionally prepared to issue the ALTA Policy to Developer for the Healthcare Property in
the amount of the Healthcare Property Purchase Price and subject only to the Permitted
Exceptions.
Pre-Existing Obligations. Except as approved by Developer in
writing or constituting a Permitted Exception, there shall exist no leases, contracts or rights of
occupancy or other agreements or contracts with respect to the Healthcare Property (but
excluding the provisions of the Federal Deed and the Memorandum of Agreement) entered into
by the City that shall survive the Healthcare Property Close of Escrow.
Applicable Approvals; Parcel Map. The Applicable Approvals
shall have been issued and shall not have expired, the Entitlement Approval Date shall have
occurred and the Parcel Map shall have been recorded.
Grading and Building Permits. Provided that Developer has
submitted complete applications (i.e., meeting all City requirements for issuance) for (a) rough
grading permits in accordance with the Approved Plans for the Grading Work and (b) all
building permits for the Minimum Healthcare Improvements, then, and only then, as a condition
to Close of Escrow, City shall be prepared to issue such permits, subject only to the payment of
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applicable fees required in connection with the issuance of such permits and to Healthcare
.
Developer acquiring title to the Healthcare Property
No Casualty or Condemnation. There shall not have occurred
any material casualty or condemnation with respect to the Healthcare Property and no material
condemnation shall be threatened with respect to the Healthcare Property.
No Litigation. No litigation shall be threatened or pending which
seeks to prevent the development or operation of the Healthcare Project, or any part thereof,
according to the terms of this Agreement and the Other Agreements.
Representations and Warranties. Subject to
Section 7.2.1(a)(viii), the Citys representations and warranties set forth in Sections 3.3 and
18.12 shall be true and correct as of the Healthcare Property Close of Escrow.
Default. The City shall not be in Material Default of any
covenant or agreement to be performed by the City under this Agreement.
City Closing Conditions
. The Citys obligation to deliver the
Quitclaim Deed for the Healthcare Property and to complete all requirements for the
Healthcare Property Close of Escrow is subject to and conditioned upon the satisfaction of,
or the Citys written waiver of, each of the following conditions tothe Healthcare Property
City Healthcare Property Closing Conditions
Healthcare Property Closing Date.
Payments. Not later than one (1) Business Day prior to the
Healthcare Property Close of Escrow, Developer shall deliver to Escrow:
the Healthcare Property Closing Payment;
if not previously paid at the Retail Property Close of
Escrow, the $50,000 marketing fee described in Section 8.7.4; and
any other costs explicitly set forth in this Agreement as
costs to be paid by Developer at the Healthcare Property Close of Escrow.
Document Deliveries. Developers execution and delivery to
Escrow Holder of the following documents, in each case (where applicable) substantially in the
form and substance of the instruments attached as Attachments to this Agreement, unless
otherwise agreed by the Parties, each in its sole discretion, which documents Developer shall
deliver to the Escrow not later than two (2) Business Days prior to the Healthcare Property Close
of Escrow:
if not previously Recorded, the Memorandum of DDA,
acknowledged and in Recordable form;
if not previously Recorded, acceptance of the Special
Restrictions, acknowledged and in Recordable form;
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acceptance of the Quitclaim Deed for the Healthcare
Property, acknowledged and in Recordable form;
if requested by any Party, the Slope Parcel Agreement
Confirmation, acknowledged and in Recordable form;
if not previously Recorded, the CC&Rs, acknowledged and
in Recordable form;
if not previously delivered, a REG Guaranty executed by
REG in substantially the form and substance of that attached hereto as Attachment 14A or as
otherwise agreed by REG and the City, each in its sole discretion;
an HCD Guaranty executed by the Healthcare Guarantor(s)
in substantially the form and substance of that attached hereto as Attachment 14B or as otherwise
agreed by the City, HCD Developer and the Healthcare Guarantor(s), each in its sole discretion;
a reaffirmation of Developers representations and
warranties set forth in Sections 3.1 and 18.12 in the form attached hereto as Attachment 18A,
which reaffirmation shall identify any representation or warranty which is not, or no longer is,
true and correct and explaining the state of facts giving rise to the change. In no event shall
Developer be liable to the City for, or be deemed to be in Default under this Agreement by
reason of, any breach of representation or warranty which results from any change that
(A) occurs between the Effective Date and the date of Healthcare Property Close of Escrow, and
(B) is expressly permitted under the terms of this Agreement or is beyond the reasonable control
of Developer to prevent. The occurrence of a change in a representation and warranty shall, if
materially adverse to the City, as determined by the City in the Citys reasonable business
judgment, constitute the non-fulfillment of the condition set forth in Section 7.2.2(j), unless such
matter is cured at least one (1) Business Day prior to the Healthcare Property Close of Escrow.
If, despite changes or other matters described in Developers reaffirmation certificate, the
Healthcare Property Close of Escrow occurs, Developers representations and warranties set
forth in this Agreement shall be deemed to have been modified by all statements made in such
certificate;
a declaration certified by an officer of REG in the form of
the Updated REG Certificate and further certifying that the Original REG Certificate provided by
the officer of REG pursuant to Section 4.6.3(a)(iii) is true and correct in all material respects as
of the Healthcare Property Close of Escrow, which declaration shall be in the form attached
hereto as Attachment 13A;
a Healthcare Guarantor Certificate, which declaration shall
be in the form attached hereto as Attachment 13B;
a declaration certified by an officer of Developer in the
form attached hereto as Attachment 18A that the documentation submitted by Developer to the
City pursuant to Section 4.6 prior to the Effective Date is true and correct in all material respects
as of the Healthcare Property Close of Escrow together with certificates of good standing of
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Developer, issued by the California Secretary of State within thirty (30) calendar days of the
Closing Date;
the HCD Assignment between Developer and Healthcare
Developer and executed by each, acknowledged and in Recordable form;
a declaration certified by an officer of Healthcare
Developer in the form attached hereto as Attachment 18B (or, if previously delivered, an update
thereto in the form of Attachment 18A) and attaching the required information, which if
comprised of certificates of good standing shall have been issued within thirty (30) calendar days
of the Closing Date and if requested by the City, a declaration certified by an officer of the
Controlling Person of Healthcare Developer in the form attached hereto as Attachment 13C (or if
either of such declarations has previously been delivered, a declaration that the documentation
submitted by Healthcare Developer or such Controlling Person to the City pursuant to such prior
declaration is true and correct in all material respects as of the Healthcare Property Close of
Escrow together with certificates of good standing of Healthcare Developer or Controlling
Person, as applicable, issued by the California Secretary of State within thirty (30) calendar days
of the Closing Date);
with respect to a Construction Loan for the Other
Healthcare Parcels or any portion thereof that is a Permitted Mortgage with a Permitted
Mortgagee as set forth in the Healthcare Financing Plan, a Healthcare Subordination Agreement
in substantially the form and substance attached hereto as Attachment 23, or as otherwise agreed
by the Parties in their sole discretion, executed and acknowledged by Healthcare Developer and
Permitted Mortgagee and in Recordable Form;
such proof of and Healthcare Developers
authority and authorization to enter into this Agreement and consummate the transactions
contemplated hereby, and such proof of the power and authority of the individual(s) executing
and/or delivering any instruments, documents or certificates on behalf of Developer to act for
and/or bind Developer as may be reasonably required by Title Company and/or the City; and
such other documents or instruments as Escrow Holder
may reasonably request to consummate the transaction contemplated in this Agreement.
Parcel Map and Construction Bond. The Parcel Map shall be
Recorded, and if not previously delivered in connection with such Recording or required
pursuant to then effective subdivision improvement agreement with respect to the Parcel Map, a
Construction Bond with respect to the Minimum Horizontal Improvements and the Retail
Horizontal Improvements insuring the Completion of such Horizontal Improvements shall be
delivered.
Applicable Approvals. The Applicable Approvals shall have
been issued and shall not have expired, the Entitlement Approval Date shall have occurred and
the Parcel Map shall have been recorded.
HCD Agreements and HCD Assignment. Developer and
Healthcare Developer shall have fully executed and delivered the HCD Agreements and HCD
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Assignment each in form and substance reviewed and approved by the City pursuant to
Section 2.2.3(b) and with no contingencies to completion of the Transfer described therein other
than the occurrence of the Healthcare Property Close of Escrow and Developer and each and
every Approved Healthcare Developer shall (i) be prepared immediately upon the Healthcare
Property Close of Escrow to close escrow upon the portion of the Healthcare Property that such
Approved Healthcare Developer has been approved by the City to acquire and (ii) shall have
delivered written notice to the City that all closing conditions with respect to such closing have
been satisfied or waived by the applicable parties, including delivery to Escrow Holder of all
documents and funds required to achieve such closing and there remain no contingencies to such
Close of Escrow other than the acquisition of the Healthcare Property by Developer from the
City.
Grading and Building Permits. Developer shall have submitted
complete applications (i.e., meeting all City requirements for issuance) for (a) rough grading
permits in accordance with the Approved Plans for the Grading Work and (b) all building
permits for the Minimum Healthcare Improvements, and City shall be prepared to issue such
permits, subject only to the payment of applicable fees required in connection with the issuance
of such permits and to Healthcare Developer acquiring title to the Healthcare Property.
Insurance. Developer shall have provided to the City evidence of
insurance as and to the extent required by Section 11.
Financial Capability. Developer and Healthcare Developer shall
have satisfied the conditions precedent to the Healthcare Property Close of Escrow set forth in
Section 4.6 and shall be in compliance with the requirements of Section 8.5.2, and there shall
have been (i) no material adverse changes (as determined by the City in accordance with
Section 4.6 of this Agreement) in the financial condition of the Healthcare Developer or the
Healthcare Guarantor since the City approved the same; (ii) no change in ownership of
Healthcare Developer or Healthcare Guarantor since the City approved the same, or if there are
changes, then except as permitted by Section 2.2.2, such changes shall have been approved by
the City in accordance with Section 2.2.3 and (iii) no change to the form and substance of the
HCD Agreements, including, if applicable, the SN PSA without the prior written consent of the
City thereto.
Construction Loan Closing. The Permitted Mortgagee for the
Construction Loan and Healthcare Developer shall be prepared to close the Construction Loan
substantially concurrently with the Healthcare Property Close of Escrow, and Developer shall
have provided to the City written verification from Escrow confirming that the deed of trust to be
recorded in conjunction with the closing of the Construction Loan, if any, has been fully
executed and acknowledged and in Recordable form and deposited into Escrow by the Permitted
Mortgagee for the Construction Loan, substantially in the amount set forth in the Financing Plan
approved by the City pursuant to Section 4.6.4.
Representations and Warranties. Subject to
Section 7.2.2(b)(viii), Healthcare Developers representations and warranties set forth in the
Healthcare Developer Certificate in Attachment 18B and in the HCD Assignment and
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entations and warranties set forth in Sections 3.1 and 18.12 shall be true and
correct as of the Healthcare Property Close of Escrow.
Approval of Healthcare Developer. The City shall have
approved the proposed Healthcare Developer as an Approved Healthcare Developer in
accordance with Sections 2.2.3(b) and 4.6 and shall have approved the Healthcare Financing
Plan, as the same may have been updated from time to time, in accordance with Section 4.6.4.
Retail Property Close of Escrow. The Retail Property Close of
Escrow shall have occurred prior to or shall take place concurrently with the Healthcare Property
Close of Escrow.
Default. Developer shall not be in Material Default of any
material covenant or agreement to be performed by Developer under this Agreement.
7.3Conditions Precedent to Retail Property Close of Escrow
.
Developer Retail Property Closing Conditions
. Developers
obligation (a) to purchase the Retail Property and (b) to complete all requirements for the
Retail Property Close of Escrow is subject to and conditioned upon the satisfaction of, or
Developers express written waiver of, each of the following conditions to the Retail
Developer Retail Property Closing Conditions
Property
before the Retail Property Closing Date.
Document Deliveries. Not later than two (2) Business Days prior
to the Retail PropertyClose of Escrow, the City shall have executed and delivered to Escrow
Holder the following documents, in each case (where applicable) substantially in the form and
substance of the instruments attached as Attachments to this Agreement, unless otherwise agreed
by the Parties, each in its sole discretion:
if not previously recorded, the Memorandum of DDA,
acknowledged and in Recordable form;
if not previously Recorded, the Special Restrictions,
acknowledged and in Recordable form;
a Quitclaim Deed for the Retail Property, acknowledged
and in Recordable form;
the Slope Parcel Easement and Landscape Installation and
Maintenance Agreement, acknowledged and in Recordable form;
if not previously recorded, the CC&Rs, acknowledged and
in Recordable form;
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Californias Real Estate Withholding Exemption Certificate
Form 593-C;
a reaffirmation of the Citys representations and warranties
set forth in Sections 3.3 and 18.12, in the form attached hereto as Attachment 17, which
reaffirmation shall identify any representation or warranty which is not, or no longer is, true and
correct and explaining the state of facts giving rise to the change. In no event shall the City be
liable to Developer for, or be deemed to be in Default under this Agreement by reason of, any
breach of representation or warranty which results from any change that (A) occurs between the
Effective Date and the date of the Retail Property Close of Escrow, and (B) is expressly
permitted under the terms of this Agreement or is beyond the reasonable control of the City to
prevent. The occurrence of a change in a representation and warranty shall, if materially adverse
to Developer or the Retail Property, as determined by Developer in Developers reasonable
business judgment, constitute the non-fulfillment of the condition set forth in Section 7.3.1(i),
unless such matter is cured at least one (1) Business Day prior to the Retail PropertyClose of
Escrow. If, despite changes or other matters described in the Citys reaffirmation certificate, the
Retail Property Close of Escrow occurs, the Citys representations and warranties set forth in
Sections 3.3 and 18.12 of this Agreement shall be deemed to have been modified by all
statements made in such certificate; and
such proof of the Citys authority and authorization to enter
into this Agreement and consummate the transactions contemplated hereby, and such proof of
the power and authority of the individual(s) executing and/or delivering any instruments,
documents or certificates on behalf of the City to act for and/or bind the City as may be
reasonably required by Title Company and/or Developer;
such other documents or instruments as Escrow Holder
may reasonably request to consummate the transaction contemplated in this Agreement.
Title Policy. Subject to Section 6.3, the Title Company shall be
unconditionally prepared to issue the ALTA Policy to Developer in the amount of the Retail
Property Base Purchase Price for the Retail Property being acquired and subject only to the
Permitted Exceptions.
Pre-Existing Obligations. Except as approved by Developer in
writing or constituting a Permitted Exception, there shall exist no leases, contracts or rights of
occupancy or other agreements or contracts with respect to the Property (but excluding the
provisions of the Federal Deed and the Memorandum of Agreement) entered into by the City that
shall survive the Retail Property Close of Escrow.
Applicable Approvals. The Applicable Approvals shall have
been issued and shall not have expired, the Entitlement Approval Date shall have occurred and
the Parcel Map shall have been recorded.
Grading and Building Permits. Provided that Developer has
submitted complete applications (i.e., meeting all City requirements for issuance) for (a) rough
grading permits in accordance with the Approved Plans for the Grading Work and (b) all
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building permits for the Minimum Retail Improvements, then, and only then, as a condition to
Close of Escrow, City shall be prepared to issue such permits, subject only to the payment of
applicable fees required in connection with the issuance of such permits and to Developer
acquiring title to the Retail Property.
Leases. Developer shall have entered into fully executed Leases
or sale agreements for the Minimum Retail Vertical Improvements.
No Casualty or Condemnation. There shall not have occurred
any material casualty or condemnation with respect to the Retail Property and no material
condemnation shall be threatened with respect to the Retail Property.
No Litigation. No litigation shall be threatened or pending which
seeks to prevent the development or operation of the Retail Project, or any part thereof,
according to the terms of this Agreement and the Other Agreements.
Representations and Warranties. Subject to
Section 7.3.1(a)(viii), the Citys representations and warranties set forth in Sections 3.3 and
18.12 shall be true and correct as of the Retail Property Close of Escrow.
Default. The City shall not be in Default of any covenant or
agreement to be performed by the City under this Agreement.
City Closing Conditions
. The Citys obligation to deliver the
Quitclaim Deed for the Retail Property and to complete all requirements for the Retail
PropertyClose of Escrow is subject to and conditioned upon the satisfaction of, or the
Citys written waiver of, each of the following conditions to the Retail Property Close of
City Retail Property Closing Conditions
Closing Date:
Developer Closing Payment. Not later than one (1) Business
Day prior to the Retail PropertyClose of Escrow, Developer shall deliver to Escrow:
the Retail Property Closing Payment;
if the Healthcare Property Close of Escrow is not taking
place concurrently with the Retail Property Close of Escrow, the Healthcare Property Option
Payment;
if not previously paid at the Healthcare Property Close of
Escrow, the $50,000 marketing fee described in Section 8.7.4; and
any other costs explicitly set forth in this Agreement as
costs to be paid by Developer at suchClose of Escrow.
Document Deliveries. Developers execution and delivery to
Escrow Holder of the following documents, in each case (where applicable) substantially in the
form and substance of the instruments attached as Attachments to this Agreement, unless
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otherwise agreed by the Parties, each in its sole discretion, which documents Developer shall
deliver to the Escrow not later than two (2) Business Days prior to the Retail PropertyClose of
Escrow:
if not previously Recorded, the Memorandum of DDA,
acknowledged and in Recordable form;
if not previously Recorded, acceptance of the Special
Restrictions, acknowledged and in Recordable form;
acceptance of the Quitclaim Deed for the Retail Property,
acknowledged and in Recordable form;
if not previously Recorded, the Slope Parcel Easement and
Landscape Installation and Maintenance Agreement, acknowledged and in Recordable form;
if not previously Recorded, the CC&Rs, acknowledged and
in Recordable form;
if not previously delivered, a REG Guaranty executed by
REG in substantially the form and substance of that attached hereto as Attachment 14A or as
otherwise agreed by REG and the City, each in its sole discretion;
a reaffirmation of Developers representations and
warranties set forth in Sections 3.1 and 18.12 in the form attached hereto as Attachment 18A,
which reaffirmation shall identify any representation or warranty which is not, or no longer is,
true and correct and explaining the state of facts giving rise to the change. In no event shall
Developer be liable to the City for, or be deemed to be in Default under this Agreement by
reason of, any breach of representation or warranty which results from any change that
(A) occurs between the Effective Date and the date of Retail Property Close of Escrow, and
(B) is expressly permitted under the terms of this Agreement or is beyond the reasonable control
of Developer to prevent. The occurrence of a change in a representation and warranty shall, if
materially adverse to the City, as determined by the City in the Citys reasonable business
judgment, constitute the non-fulfillment of the condition set forth in Section 7.3.2(h), unless such
matter is cured at least one (1) Business Day prior to the Retail Property Close of Escrow. If,
despite changes or other matters described in Developers reaffirmation certificate, the Retail
Property Close of Escrow occurs, Developers representations and warranties set forth in this
Agreement shall be deemed to have been modified by all statements made in such certificate;
a declaration certified by an officer of REG in the form of
the Updated REG Certificate and further certifying that the Original REG Certificate provided by
the officer of REG pursuant to Section 4.6.3(a)(iii) is true and correct in all material respects as
of the Retail Property Close of Escrow, which declaration shall be in the form attached hereto as
Attachment 13A;
a declaration certified by an officer of Developer in the
form attached hereto as Attachment 18A that the documentation submitted by Developer to the
City pursuant to Section 4.6.8 prior to the Effective Date is true and correct in all material
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respects as of the Retail Property Close of Escrow together with certificates of good standing of
Developer, issued by the California Secretary of State within thirty (30) calendar days of the
Closing Date.
such proof of Developers authority and authorization to
enter into this Agreement and consummate the transactions contemplated hereby, and such proof
of the power and authority of the individual(s) executing and/or delivering any instruments,
documents or certificates on behalf of Developer to act for and/or bind Developer as may be
reasonably required by Title Company and/or the City; and
such other documents or instruments as Escrow Holder
may reasonably request to consummate the transaction contemplated in this Agreement.
Parcel Map and Construction Bond. The Parcel Map shall be
Recorded, and if not previously delivered in connection with such Recording or required
pursuant to then effective subdivision improvement agreement with respect to the Parcel Map, a
Construction Bond with respect to the Minimum Horizontal Improvements and the Retail
Horizontal Improvements insuring the Completion of such Horizontal Improvements.
Applicable Approvals. The Applicable Approvals shall have
been issued and shall not have expired, the Entitlement Approval Date shall have occurred.
Grading and Building Permits. Developer shall have submitted
complete applications (i.e., meeting all City requirements for issuance) for (a) rough grading
permits in accordance with the Approved Plans for the Grading Work and (b) all building
permits for the Minimum Retail Improvements, and City shall be prepared to issue such permits,
subject only to the payment of applicable fees required in connection with the issuance of such
permits and to Developer acquiring title to the Retail Property.
Leases. Developer shall have entered into fully executed Leases
or sale agreements for the Minimum Retail Vertical Improvements.
Financial Capability. Developer shall have satisfied the
conditions precedent to Retail Property Close of Escrow set forth in Section 4.6 and shall be in
compliance with the requirements of Section 8.5.2 and there shall have been (i) no material
adverse changes (as determined by the City in accordance with Section 4.6 of this Agreement) in
the financial condition of the Developer, REG (or other Retail Project guarantor, if applicable)
since the City approved the same; (ii) no change in ownership of Developer or the Retail Project
guarantor since the City approved the same, or if there are changes, then except as permitted by
Section 2.2.2, such changes shall have been approved by the City in accordance with Section
2.2.3.
Representations and Warranties. Subject to Section 7.3.2(b)(vii),
Developers representations and warranties set forth in Sections 3.1 and 18.12 shall be true and
correct as of the Retail Property Close of Escrow.
Default. Developer shall not be in Default of any material
covenant or agreement to be performed by Developer under this Agreement.
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7.4Additional Closing Requirements
.
In addition to the provisions of Sections 7.2 and 7.3, upon eachClose of Escrow the
following shall occur:
Closing Cost Statement
. Escrow Holder shall deliver at least
seven (7) Business Days prior to each Close of Escrow a statement of costs to each Party and at
least two (2) Business Days prior to each Close of Escrow each of the Parties shall approve such
statement as being consistent with the provisions of Section 7.5 below.
Closing Certificate. Each Party shall submit to Escrow Holder a
certificate stating that all applicable Closing Conditions for its benefit have been satisfied or
waived.
7.5Procedures for Conveyance
.
Costs and Expenses
. The costs and expenses of eachClose of
Escrow shall be allocated as follows:
Citys Costs. The City shall pay (i) the portion of the premium
for the ALTA Policy attributable to the so-called standard owners policy coverage portion
thereof in the amount of the Base Purchase Price for the Property being acquired; (ii) one-half
(1/2) of all Escrow fees and costs; (iii) all documentary transfer taxes, if any; and (iv) the Citys
share of prorations, if any.
Developers Costs. Developer shall pay (i) the entire cost of any
extended coverage in excess of the premium for the standard CLTA coverage in the amount of
the Base Purchase Price for the Property being acquired, any other title policy and any Developer
Title Endorsements, (ii) the entire cost of the Survey and any additional land surveys obtained by
Developer in connection with the foregoing; (iii) document recording charges for the Special
Restrictions, the Quitclaim Deed, the Memorandum of DDA, the Slope Parcel Easement and
Landscape Installation and Maintenance Agreement, the Slope Parcel Agreement Confirmation,
the CC&Rs, the Healthcare Subordination Agreement, if applicable, and all other Recorded
documents; (iv) one-half (1/2) of all Escrow fees and costs; and (v) Developers share of
prorations. Developer shall pay the fees of all consultants and employees (including lawyers and
environmental, engineering and land use consultants) engaged by it.
Other Costs. All costs and expenses related to each Close of
Escrow and the transfer of the Property to Developer not otherwise allocated in this Agreement
shall be allocated between the Parties in accordance with the customary practice in Orange
County, California.
Possession
. The City shall deliver to Developer possession of
the Healthcare Property at the Healthcare Property Close of Escrow and the Retail Property
at the Retail Property Close of Escrow.
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Deliveries to Developer Upon Close of Escrow
. The City
agrees to deliver to Developer, on or prior to eachClose of Escrow, outside of Escrow, the
following items:
R
ecords and Plans. To the extent in the Citys possession,
originals or copies of those records and plans with respect to the Property conveyed that will
affect such Property after the Close of Escrow.
Licenses and Permits. To the extent in the Citys possession,
originals or copies of all licenses and permits affecting the Property conveyed.
Prorations
.
General. Rentals, revenues and other income, if any, from the
Property conveyed shall be prorated on a cash basis as of 11:59 P.M. Pacific Time on the day
preceding each Close of Escrow. Tax payments shall be prorated in accordance with
Section 7.5.4(b).
Taxes. Developer shall be responsible for all taxes, assessments,
fees and charges imposed by any Governmental Authority with respect to the Property conveyed
and all existing and future improvements thereon from and after each Close of Escrow. If, after
any Close of Escrow, any real estate taxes or possessory interest taxes are assessed against any
conveyed parcel pertaining to the period prior to such Close of Escrow, the City agrees to contact
the applicable taxing authority and seek recognition and enforcement of its tax exemption. The
provisions of this clause (b) shall survive each Close of Escrow and shall not merge into any
Quitclaim Deed.
Method of Proration. All prorations shall be made in accordance
with customary practice in Orange County, except as otherwise expressly provided in this
Agreement. Developer and the City agree to cause a schedule of prorations to be prepared prior
to each Close of Escrow. Such prorations, if and to the extent known and agreed upon as of each
Close of Escrow, shall be paid by Developer to the City (if the prorations result in a net credit to
the City) or by the City to Developer (if the prorations result in a net credit to Developer) by
increasing or reducing the cash to be paid by Developer at eachClose of Escrow. Any such
prorations not determined or not agreed upon as of eachClose of Escrow shall be paid by
Developer to the City, or by the City to Developer, as the case may be, in cash as soon as
practicable following eachClose of Escrow. A copy of the schedule of prorations as agreed
upon by Developer and the City shall be delivered to Escrow Holder at least three (3) Business
Days prior to eachClose of Escrow. All prorations provided for in this clause (c) shall be on an
-five (365) day year.
Disbursements and Other Actions by Escrow Holder
. At
each Close of Escrow and subject to the satisfaction or waiver by the benefited party of the
applicable Closing Conditions to suchClose of Escrow described in Sections 7.2 and 7.3,
Escrow Holder shall promptly undertake all of the following in the manner indicated
below:
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Funds. Debit or credit all matters addressed in Section 7.5.1 and
prorate all matters addressed in Section 7.5.4 and disburse to the City the Base Purchase Price for
the Property being acquired (as adjusted by the foregoing debits, credits and prorations) and all
other sums comprising the Retail Property Closing Payment at the Retail Property Close of
Escrow and the Healthcare Property Closing Payment at the Healthcare Property Close of
Escrow as set forth in the Escrow closing statement approved by the Parties.
Recording. Cause to be Recorded, in the following order: (i) at
the Retail Property Close of Escrow, the Memorandum of DDA, the Special Restrictions, the
Slope Parcel Easement and Landscape Installation and Maintenance Agreement (which shall be
Recorded against all of the Development Parcels and the Slope Parcel and Landscape Areas
described therein) and the CC&Rs, which shall be Recorded against all of the Development
thereafter
Parcels, and (ii) (A) at the Healthcare Property Close of Escrow, the Special
Restrictions, the Healthcare Property Quitclaim Deed, the Slope Parcel Agreement Confirmation,
if applicable, and, if applicable, the HCD Assignment and the Healthcare Subordination
Agreement, which shall be Recorded against the Healthcare Parcel only and (B) at the Retail
Property Close of Escrow, the Retail Property Quitclaim Deed, which shall be Recorded against
the Retail Parcel only and in each case, thereafter, any other documents that Developer and the
City may mutually direct, or that may be required by the terms of this Agreement to be
Recorded, obtain conformed copies thereof and distribute same to Developer and the City.
Title Policy. Direct the Title Company to issue the ALTA Policy
to Developer in the amount of the Base Purchase Price for Property being conveyed and subject
only to the Permitted Exceptions. Concurrently with the issuance of the ALTA Policy, the Title
Company shall provide the Developer Title Endorsements, provided that the issuance of such
Developer Title Endorsements shall not be a condition to any Close of Escrow except for those
endorsements that the City agreed to obtain in order to cure any Disapproved Exceptions or
Survey matters.
Delivery of Documents to Developer and City. Deliver to each
Party original counterparts (and conformed copies, if applicable) of all then-Recorded
documents, the FIRPTA Affidavit, the California Form 593-W and any other documents (or
copies thereof) deposited into Escrow by Developer or the City pursuant hereto, and deliver to
the Parties a certified copy of their respective Escrow closing statements.
Other Actions. Take such other actions as the Parties direct
pursuant to mutually executed supplemental Escrow instructions.
Notice
. All communications from the Escrow Holder shall be
directed to the addresses and in the manner established in Section 18.6 for notices,
demands and communications between the Parties.
Development of the Property and Additional Covenants of Developer and City.
8.
8.1Scope of Development
.
Requirement to Develop the Project
. The Scope of
Development attached to this Agreement as Attachment 8 sets forth the overall conceptual
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plan for the Project and development of the Development Parcels, including design,
development, and construction of the Improvements as may be required by the Entitlements
and Development Permits. The Project shall be designed and constructed in a manner
consistent with the Scope of Development, the Entitlements, the Site Plan attached as
Attachment 3 (as the same may be modified with approval of the City Manager in his or
her Proprietary Capacity and otherwise in compliance with the City Code), the Approved
Plans and all Governmental Requirements, as further described below. The Parties
acknowledge that the Scope of Development depicts one possible plan for development,
and that Developer shall not be obligated to construct all of the improvements included
within the Scope of Development, provided that, without limiting any other requirement of
the Schedule of Performance: (a) Healthcare Developer shall be obligated to construct and
Complete the Minimum Healthcare Improvements within the time periods set forth in the
Healthcare Schedule of Performance, and (b) Developer shall be obligated within the time
periods for performance set forth in the Retail Schedule of Performance: (i) to construct
and Complete the Minimum Horizontal Improvements and the Minimum Retail
Improvements and (ii) to use commercially reasonable efforts to attract new tenants, and
upon execution of commitments therefor, shall be obligated to promptly commence,
diligently pursue to Completion and Complete construction of additional Retail Vertical
Improvements (up to 90,000 square feet of leasable area) and use commercially reasonable
efforts to cause occupants of such Improvements to covenant to fully stock and open for
business within the leased space for one (1) calendar day. Until the Recording of a
Certificate of Compliance as to the applicable Parcel, no Person shall be permitted or
authorized to undertake the construction of any Vertical Improvements on the Development
Parcels or any portion thereof unless such Person is: (i) the Initial Developer, (ii) a
Permitted Transferee; (iii) an End User, pursuant to a Transfer approved by the City to the
extent the City has the right to approve the same pursuant to this Agreement, and if such
End User is required by this Agreement to enter into a City Non-Disturbance and
Attornment Agreement, such End User shall have satisfied such obligation; or (iv) a Person
approved by the City as a Transferee pursuant to Section 2.2.3 and otherwise meeting the
requirements of Section 2.2.3, including assumption in writing of all obligations of
Developer under this Agreement and the Other Agreements pursuant to an Assignment; or
in the case of a Healthcare Developer, including assumption in writing all obligations of
Developer under this Agreement and the Other Agreements only with respect to the
Healthcare Project, the Healthcare Property and the Improvements existing or to be
constructed thereon pursuant to an HCD Assignment. The foregoing restriction on
construction of improvements does not apply to improvements or tenant improvements
constructed in a Leasable Space.
Control of Site Development
. Developer shall have control
over the design and layout of the Horizontal Improvements and the Vertical Improvements
(including height, shape and location of the Vertical Improvements and special landscaping
and art features) and over the special uses to be incorporated therein, subject to (a) the
Approved Plans, Development Permits and Entitlements, including any conditional use
permit necessitated by particular proposed uses or design features and (b) the design
approval provisions set forth in Section 8.4 for the benefit of the City, which are
undertaken by the City in its Proprietary Capacity.
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Project Development Costs
. Developer hereby agrees that all
costs associated with planning, designing and constructing the Project, preparing the
Property and constructing all Improvements thereon including all hard costs, soft costs, the
cost of services, fees, assessments, exactions, dedications, cost overruns, profit, overhead,
consultants fees, legal fees, wages required to be paid to any person employed by
Developer, any Transferee, contractor or subcontractor, including the costs of the Project
Development Costs
Fair Sh
responsibility of Developer without any cost or liability to the City.
Compliance with Governmental Requirements and Other
Requirements
. The Project shall be consistent with the development concept set forth in
the Scope of Development and subject to obtaining the Entitlements, shall be developed
and maintained in accordance with this Agreement and all Governmental Requirements of
the City, the Specific Plan, the Entitlements, the Approved Plans, the Development
Permits, the Memorandum of Agreement and the Federal Deed.
Construction of Specific Project Components
.
Horizontal Improvements. Developer acknowledges and agrees
that it shall be responsible for design and construction of certain infrastructure to support the
development of the Project to the extent described in the Scope of Development attached to this
Agreement as Attachment 8 and in the depiction of Horizontal Improvements attached to this
Agreement as Attachment 9 and as otherwise required by the Approved Plans, the Entitlements,
the Development Permits, all Governmental Requirements and all requirements of private utility
purveyors. The Horizontal Improvements shall be commenced and diligently prosecuted
Completion in accordance with Schedule of Performance as further described in Section 8.2.1.
Except as contemplated otherwise by the Schedule of Performance, substantial completion of the
Minimum Horizontal Improvements shall be a condition precedent to commencement of
construction by Developer of any Vertical Improvements on the Development Parcels.
Vertical Improvements. Following the Retail Property Close of
Escrow, Developer shall construct or cause the construction of the Minimum Retail Vertical
Improvements and following the Healthcare Property Close of Escrow, Healthcare Developer
shall construct or cause the construction of the Minimum Healthcare Vertical Improvements, in
each case, in accordance with the respective Schedule of Performance, the Scope of
Development, the Approved Plans or other plans and specifications prepared by Developer and
approved by the City, the Entitlements, the Development Permits and all other Governmental
Requirements.
8.2Timing and Conditions of Project Development
.
Schedule of Performance
. The Schedule of Performance
attached as Attachment 7 sets forth the schedule for submissions, approvals and actions,
including the design and development of the Project and construction of the Improvements.
The Parties acknowledge and agree that, subject to Section 18.7, time is of the essence with
respect to the dates set forth in the Schedule of Performance. Accordingly, subject to Force
Majeure Delay, following conveyance of any portion of the Property by the City,
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Developer shall promptly begin and thereafter diligently prosecute to completion within the
time specified in the Schedule of Performance all steps required by the Schedule of
Performance applicable to the Property so acquired, including design, construction and
development of the Improvements. Without limiting the generality of the foregoing:
Developer shall, following the Retail Property Close of
Escrow, commence, or cause commencement of, construction and Complete of the Minimum
Horizontal Improvements, the Retail Horizontal Improvements and the Minimum Retail Vertical
Improvements; provided that: (i) until such time as the Healthcare Property Close of Escrow
occurs, the scope of the Minimum Horizontal Improvements to be performed by Developer on
the Healthcare Parcel shall be limited to the Healthcare Rough Grading and the Healthcare
Perimeter Landscaping; (ii) such limitation shall only apply to the Minimum Horizontal
Improvements
out and Complete the Minimum Horizontal Improvements on the Retail Parcel; and (iii) upon
acquisition by Developer of the Healthcare Property, Developer shall promptly commence and
complete the entirety of the remaining Minimum Horizontal Improvements applicable to the
Healthcare Parcel; and
Healthcare Developer shall, following the Healthcare Property
Close of Escrow, commence or cause commencement of and Complete the Minimum Horizontal
Improvements to the extent not constructed by Developer within the period set forth in the
Schedule of Performance, including if not then previously carried out, the Healthcare Rough
Grading, the Healthcare Perimeter Landscaping, the Healthcare Horizontal Improvements and
the Minimum Healthcare Vertical Improvements.
Extensions
. Subject to Section 18.7, the City may, in its sole
discretion and upon written request from Developer, extend the time specified in the Retail
Schedule of Performance. Any such agreed upon changes shall be within the limitations of
the Specific Plan, the Entitlements, and all other Governmental Requirements. To be
effective, any extensions shall be requested in writing by Developer and evidenced by
written notice from the City Manager or designee.
Project Phases
. The City acknowledges and agrees that the
Project may be constructed and Completed in two Phases, comprising the Retail Project
and the Healthcare Project. Each Phase shall be commenced and Completed in accordance
with the Schedule of Performance and upon Completion thereof, each Phase shall comply
with all Governmental Requirements, including all Specific Plan requirements and
Entitlement conditions of approval for development on the Property, without reliance upon
Improvements to be constructed in future Phases. The conditions of City approval may
require certain additional Improvements to be constructed and Completed as part of each
Phase of the Project. Subject to the foregoing, the City agrees to cooperate in good faith
with Developer to implement this Agreement, so as to permit development of the Project in
two phases, including by providing Developer with a license, or other right of access, for
the purpose of performing construction, including the installation of utilities and the
performance of grading on any portion of the Development Parcels or adjacent land owned
by the City as set forth in Section 8.2.5 below.
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Building Pad Construction
. The Vertical Improvements on
Building Pads may be constructed and Completed by each corresponding Pad Transferee
but subject to the time limits for such construction set forth in the Schedule of Performance
for the Phase in which the Building Pad is located or such additional time as set forth in
any City Non-Disturbance and Attornment Agreement executed by the City and such Pad
Transferee.
Limited License
. The City and Developer shall enter into a
license agreement in substantially the form and substance of the License Agreement
attached as Attachment 27 or as otherwise approved by the City and Developer each in its
sole discretion pursuant to which the City shall grant to Developer a limited and revocable
license to enter upon the portions of the Development Parcels continued to be owned by the
City following the Retail Property Close of Escrow for the purposes of carrying out the
construction of the Minimum Horizontal Improvements.
Restriction on Commencement of Construction on Other
Healthcare Parcels
Healthcare Parcels is to assure development at Tustin Legacy of a Medical Office Building
on the Medical Office Parcel and Developer (and each Healthcare Developer) recognize
that development on the Other Healthcare Parcels is ancillary to the development of the
Medical Office Parcel and assumes the risk that development of the Healthcare Vertical
Improvements on the Other Healthcare Parcels may not be carried out if the Medical Office
Parcel are not developed. Accordingly, in the event that the Medical Office Parcel are
conveyed separately from the Other Healthcare Parcels, the Healthcare Developer owning
the Other Healthcare Parcels shall be prohibited from commencing construction of the
Healthcare Vertical Improvements or any portion thereof on the Other Healthcare Parcel
unless and until the Healthcare Developer owning the Medical Office Parcel shall have
Commenced Construction of the Healthcare Vertical Improvements comprising the
Medical Office Building. In furtherance of this requirement, Developer (and each
Healthcare Developer) acknowledges and agrees that pursuant to the terms of this
Agreement, the DA and the Entitlements, the City shall not issue building permits for
Healthcare Vertical Improvements upon the Other Healthcare Parcels until the following
has occurred: (a) a building permit has been issued for the Medical Office Building and
(b) Healthcare Developer shall have Commenced Construction of the Medical Office
Building and accordingly, the obligation of the HCD Guarantor for the Medical Office
Parcel to Complete such construction shall be effective.
8.3Land Use Matters
.
Subdivision
. Developer at its sole cost and expense shall use its
reasonable efforts to (a) cause the Parcels and Building Pads to be legally described and
(b) to the extent required by the Subdivision Map Act and the City Code, to create separate
legal parcels for each Parcel and Building Pad. Accordingly Developer has submitted for
City approval, as part of the Applicable Approvals, a Parcel Map, which shall be Recorded
prior to the Retail Property Close of Escrow.
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Required Entitlements
. Developer shall, at its sole cost and
expense, use its commercially reasonable efforts to process, obtain, and maintain all
Entitlements to assure that the design, construction, use, operation, maintenance, repair and
replacement of the Improvements is carried out in accordance with the provisions of this
Agreement, and is permitted by the Entitlements and all other Governmental Requirements.
reflect the terms of this Agreement, and shall
not exceed the trip allocation assigned by the City to the applicable uses contemplated for
the Property as set forth in Attachment 26 unless otherwise agreed by the City in its sole
discretion (which shall require City approval in both its Proprietary Capacity and
Governmental Capacity.) Development of the Project shall require and be subject to the
review processes of the City in its Governmental Capacity with respect to the specific
Applicable Approvals
approvals listed on Attachment 28 . Without limiting the
foregoing, in developing and constructing the Project, Developer shall ensure that the
Project complies with all applicable development standards in the Specific Plan, the City
Code and with all building codes, landscaping, signage and parking requirements, except as
may be permitted through conditional use permits, variances and modifications. Developer
acknowledges that the Specific Plan establishes a non-residential total trip estimate for the
Property and that the Project shall be required to comply with such estimate. Developer
shall use its commercially reasonable efforts to timely submit all applications and materials
use its commercially reasonable efforts to timely process and obtain all of the Applicable
Approvals required for the Project and to cause the Entitlement Approval Date to occur in
accordance with the Retail Schedule of Performance.
Development Permits
. Developer, at its sole cost and expense,
shall process, obtain, and maintain all Development Permits required for the construction
and use of the Horizontal Improvements and all Vertical Improvements on the Retail
Property and shall maintain all Entitlements and Development Permits; provided that, as a
condition to any Transfer to a Healthcare Developer, Developer shall cause the Healthcare
Developer to acknowledge that it is obligated to maintain all Entitlements and
Development Permits required for the construction and use of the Healthcare Horizontal
Improvements and the Healthcare Vertical Improvements on the Healthcare Parcel.
Agreement Does Not Grant Entitlements
. Nothing in this
Agreement shall be construed or interpreted as committing the City to approve or undertake
any action or review process or activities that require the independent exercise of discretion
by the City in its Governmental Capacity, including any approval of any Entitlement or
Development Permit application for which Developer applies for after the date of this
Agreement. This Agreement does not (a) grant any land use entitlement to Developer,
(b) supersede, nullify or amend any condition which may be imposed by the City in its
Governmental Capacity or in connection with Entitlement for the Project or the Property
(including approval of the City in its Governmental Capacity of any conditional use permit
review which may be necessitated by particular proposed uses or design features of End
Users or Pad Transferees), (c) guarantee to Developer or any other party any profits from
the development of the Property, or (d) amend any Governmental Requirements of the
City. The issuance or approval of any Entitlement not issued or approved on or prior to the
Effective Date or any Development Permit described in this Agreement shall be done by
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the City in its Governmental Capacity. Nothing contained in this Agreement shall be
deemed to waive the right of the City to act in its Governmental Capacity with respect to
the consideration and approval of the Entitlements and all other permits, licenses and
approvals requested by Developer from time to time in connection with the Project nor
shall it entitle Developer to any Entitlement, Development Permit or other City approval
necessary for the development of the Project, or to the waiver of any applicable City
requirements relating thereto, and the failure of the City to issue or approve any
Entitlement described in this Agreement, including to certify or approve any CEQA
document, to approve any required Applicable Approval or other Entitlement or
Development Permit shall not be a default of the City under this Agreement.
Cooperation of City
. Consistent with this Agreement, the City
agrees, without cost or other liability to the City or any commitment of the City to approve
or conditionally approve any Entitlements required for the full implementation of this
Agreement, to assist and cooperate with Developer in its efforts to process the
Entitlements. The City will use good faith efforts to expedite review of applications for the
Entitlements and the Development Permits that are to be issued by the City and other
submissions made by Developer where reasonably appropriate in order to meet the
deadlines set forth in the Schedule of Performance and will assist and cooperate with
Developer in its efforts to process such Development Permits, Entitlements and other
submissions.
CEQA Requirements
. The Parties acknowledge and agree that
CEQA is applicable to discretionary actions associated with the development of the Project,
Developer acknowledges that the City shall prepare any supplemental environmental
information, if any, as may need to be completed in order to effect compliance with CEQA,
as determined by the City in its sole discretion, and Developer shall be responsible to pay
all costs incurred by the City to prepare or to cause to its consultants to prepare such
environmental documents and shall enter into such agreements to pay such costs as the City
shall require. Developer agrees to cooperate with the City in obtaining information to
determine the environmental impact of the Project, if any.
Entitlement Conditions
. Developer acknowledges and agrees
that the City in its Governmental Capacity may require satisfaction of certain conditions
and dedication of certain property in connection with approval of any Entitlements.
Payment of Fees
. Without limiting any other provision of this
Agreement, Developer shall pay (a) all fees, costs and deposits normally charged by the
City in connection with application for and review and approval of Development Permits
and Entitlements, (b) any fees or costs incurred by the City in complying with CEQA or the
State CEQA implementing regulations; (c) any costs to review or approve any Entitlement
or Development Permit applications or submittals by Developer to the City in connection
with the Project.
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8.4Design Approval
.
Design Review
. It is understood and agreed by Developer that
the quality, character and uses proposed for the Project are of particular importance to the
City. In furtherance of the development of the Project and the foregoing, the City, acting in
its Governmental Capacity, shall require Concept Plan and Design Review approval as part
of the Entitlements. In addition, in its Proprietary Capacity as the current owner of the real
property that is the subject of this Agreement and of substantial portions of Tustin Legacy,
the City will require review and approval of the Basic Concept Plan for the Project as
further set forth in this Section 8.4. Review of design documents by the City in its
Proprietary Capacity only shall be subject to time periods set forth below.
Plan Development and Cost
. All plans and specifications for
the Project shall be prepared by Developer at Developers sole cost and expense and
subject to the requirements set forth in this Article 8.
Process for Governmental Review
. The Parties acknowledge
that the City, acting in its Governmental Capacity, shall have the right to review all plans,
specifications and submissions, including any changes therein, through its normal plan
review and Entitlement process and that the City may exercise its governmental discretion
in review of any of the plans, specifications and submissions. Developer has previously
Site Plan
submitted to the City a preliminary site plan for the Projec
which is attached as Attachment 3, graphically depicting the overall plan for development
of the Improvements on the Property, the Building layouts and dimensions, proposed lots
and Building Pads, Common Area, parking, landscaping and access on and related to each
Building Pad, floor plans, preliminary materials call-outs and conceptual Building
renderings and setting forth the Phasing plan. Within the timeframe shown in the Retail
Schedule of Performance, Developer shall submit for approval by the City in its
Governmental Capacity, final design drawings and related documents conforming to the
requirements of the City Code and including the required contents listed in Chapter 5 of the
Specific Plan. The Community Development Department is authorized pursuant to City
Code to approve minor changes to Building plans after approval by the City provided such
changes do not significantly reduce the quality of the development concept or the design
and materials to be used in enhancing the architecture and aesthetics of the Improvements.
Coordination
. Developer and the Project Architect shall meet
with representatives of the City to review and come to a clear understanding of the
planning and design criteria required by the City. During the preparation of all plans and
specifications for the Project, staff of the City and Developer shall hold regular progress
meetings to coordinate the preparation, submission and review of such plans. The staff of
the City and Developer shall communicate and consult as frequently as necessary to
facilitate prompt and speedy consideration of Developers submittals.
Proprietary Review
. On or before the date specified in the
Schedule of Performance, Developer shall have caused the Basic Concept Plans to be
prepared and submitted to the City for approval. The City in its Proprietary Capacity shall
have the right of reasonable architectural review of all Basic Concept Plans in accordance
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with Section 8.4.6, including with respect to exterior elevations, exterior materials
(including selections and colors) and the size, bulk and scale for all Buildings, the phasing
of the Project and the product mix, which shall include, unless otherwise agreed by the
City, Medical Uses and Healthcare Parcel Retail Uses on the Healthcare Parcel and a
grocery store, drug store and other Retail Uses normally associated with a community
shopping center on the Retail Parcel. Developer acknowledges and agrees that the Citys
Community Development Department is responsible for reviewing the working drawings
and issuing recommendations with respect to the appropriate Entitlements. The exercise by
the City Managers office of its right to inspect or review the concept plans, drawings and
related documents for development of the Project: (a) shall be an exercise of the Citys
Proprietary Capacity and not its Governmental Capacity; (b) shall not constitute an
approval by the City of any Entitlements; (c) shall not constitute a determination by the
City of the engineering or structural design, sufficiency or integrity of the improvements
contemplated by such plans, drawings and related documents, and (d) shall not constitute a
determination by the City of the compliance of such plans, drawings and related documents
with any applicable building codes, safety features and standards. Any inspection or
approval of plans and drawings made or granted pursuant to this Agreement shall not
constitute an inspection or approval of the quality, adequacy or suitability of such plans,
specifications or drawings, nor of the labor, materials, services or equipment to be
furnished or supplied in connection therewith. Developer acknowledges and agrees that the
City in its Proprietary Capacity may approve or disapprove Basic Concept Plans and design
review plans in order to satisfy the Citys obligation to promote the sound development and
redevelopment of land, to promote a high level of design that will impact development
surrounding the Project, and to provide an environment for the social, and economic well-
being of the citizens of the City and that the City is not constrained or limited to act solely
within its governmental discretion, authority, or capacity. Developer shall not be entitled
to damages or compensation as a result of the Citys disapproval, conditional approval, or
failure to approve or disapprove Basic Concept Plans in its Proprietary Capacity.
Process for Proprietary Review
. Developer shall submit two
sets of Basic Concept Plans for the Improvements to the City. Such sets of Basic Concept
Plans shall be submitted in writing over the signature of Developer or a representative duly
authorized by Developer in writing. If the City approves such Basic Concept Plans, the
City shall endorse its approval on one set of such Basic Concept Plans and return them to
Developer. The City shall conclusively be deemed to have given its approval to such sets
of Basic Concept Plans unless, prior to fifteen (15) Business Days after the Citys receipt of
such sets of Basic Concept Plans, the City gives written notice of disapproval to Developer
specifying in reasonable detail each item that the City disapproves and the reasons for such
disapproval. If necessary, Developer shall make changes in response to the Citys notice of
disapproval and resubmit such Basic Concept Plans to the City for review and approval in
accordance with the provisions of this Section 8.4.6 (and in such case the Citys review
period shall be ten (10) Business Days).
Approved Plans
. Upon (a) approval by the City in its
Governmental Capacity of the Applicable Approvals as described in this Article 8,
(b) approval by the City in its Proprietary Capacity of the Basic Concept Plan under
Section 8.4, and (c) approval of construction level drawings by the City in its
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Governmental Capacity, then such approved plans and drawings (collectively the
Approved Plans
Parcels. In addition to any other rights to approve or disapprove the construction level
drawings in its Governmental Capacity, the City may disapprove such documents if they
are not consistent with the Entitlements and the Basic Concept Plan previously approved,
do not represent a logical or commercially reasonable implementation thereof, and/or do
not provide for construction of the same square footage as set forth therein. Developer
shall not construct any Improvements on the Property unless the same are shown in the
Approved Plans or unless the prior written consent of the City in its Proprietary Capacity
and, if necessary, the approval of the City in its Governmental Capacity are obtained to any
modification thereof. To the extent of any inconsistencies between the plans identified in
the Scope of Development or the Site Plan and the Approved Plans, the Approved Plans
shall govern and control as to the development of the Property.
8.5Financial Status
.
Financial Capability
. After the Retail Property Close of
Escrow, and thereafter until Recording of the Certificate of Compliance for each Parcel,
Developer and Healthcare Developer shall each continue to be responsible for
demonstrating to the City their financial capacity and capability to perform their respective
obligations under this Agreement. In addition to the requirements set forth in
Section 4.6.1, 4.6.2 and 4.6.4, as applicable, following Close of Escrow for each Parcel,
until Recording of a Certificate of Compliance for such Parcel, Developer and Healthcare
Developer each shall submit annually, on the anniversary of the applicable Closing Date, a
date-down of the Financing Plan and Healthcare Financing Plan, respectively, and shall
include therein any modifications required to reflect changes to the Project during such
period.
Guaranty; No Mortgage or Construction Loan
. Developer,
on behalf of itself and each Successor Owner, hereby agrees that (a) the REG Guaranty (or,
if applicable, any replacement Guaranty provided and approved by the City pursuant to this
Agreement) shall not be amended, modified or terminated prior to (i) completion of the
Minimum Horizontal Improvements and (ii) the Recording of a Certificate of Compliance
for the Retail Parcel and (b) the HCD Guaranty (or, if applicable, any replacement
Guaranty provided and approved by the City pursuant to this Agreement) shall not be
amended, modified or terminated prior to the Recording of a Certificate of Compliance for
the Healthcare Parcel, in each case without the prior written consent of the City in its sole
discretion. Further, in light of Developers representations set forth in Section 3.1.14,
Developer, on behalf of itself and each Successor Owner of the Retail Property, hereby
waives its rights to require or utilize third party financing with respect to Developer's
acquisition or development of the Retail Parcel or any portion thereof or the Medical Office
Parcel or any portion thereof, or to Transfer such Parcels or any portion thereof to a
Mortgagee or to execute or Record a Mortgage against the Retail Parcel or against the
Medical Office Parcel prior to the Transfer Approval End Date applicable to such Parcel,
unless otherwise agreed by the City in its sole discretion; provided, however, nothing
contained herein shall limit the right of any tenant or End User from obtaining financing
secured by its leasehold interest and subordinate to this Agreement, including the Right of
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Repurchase and Right of Reversion, and the Other Agreements, and the City hereby
consents to the same. The representations, warranties and covenants of Developer pursuant
to this Section 8 and Section 3.1.14 represent material consideration to the City, and shall
be binding on Developer.
8.6Project Budget Statement
.
Developer understands and agrees that the City reserves the right to reasonably request at
any time prior to the Recording of a Certificate of Compliance for a Parcel (but not more
frequently than quarterly) a Project Budget Statement with respect to the Project to be
constructed on such Parcel. If requested by the City, Developer, or Healthcare Developer, as
applicable, shall submit such Project Budget Statement within thirty (30) calendar days
following the later of Developers request
therefor and the expiration of the applicable quarter. Notwithstanding the foregoing, the delivery
of such Project Budget Statement shall be for informational purposes only and in no event shall
the City be entitled to declare a Potential Default or Material Default, or exercise any of its
remedies pursuant to this Agreement, based on the contents of such Project Budget Statement
absent an actual Potential Default or Material Default under one of the other covenants or
obligations of Developer set forth in this Agreement.
8.7Backbone Infrastructure Improvements
.
Developer Acknowledgements
. Developer acknowledges and
agrees that: (a) the development of the Project, together with the development of the
remainder of Tustin Legacy, will contribute to the need for Tustin Legacy backbone
infrastructure located off of the Development Parcels, including Tustin Legacy roadway
improvements; traffic and circulation mitigation to support the Tustin Legacy project;
domestic and reclaimed water; sewer; telemetry; storm drains and flood control channels;
utilities backbone (electricity, gas, telephone, cable, telecommunications, etc.) (as such
Tustin Legacy Backbone
Infrastructure Program
(b) a portion of the Base Purchase Price will be allocated to
development by the City of the Tustin Legacy Backbone Infrastructure Program on behalf
of the Project, as further described below; (c) Developer has had an opportunity to review
the budgets, plans and projections developed by the City in connection with the Tustin
Legacy Backbone Infrastructure Program and the studies prepared by the City in
connection therewith; (d) there is an essential nexus between the imposition on the Project
of the Project Fair Share Contribution and a legitimate governmental interest; and (e) the
Project Fair Share Contribution is roughly proportional to and reasonably and rationally
related to the impacts that will be caused by development of the Project.
Project Fair Share Contribution
. The Base Purchase Price is
inclusive of the obligation to pay the fair share of the Tustin Legacy Backbone
Project Fair Share Contribution
Infrastructure Program (the ) to be contributed by
Developer with respect to the Project and no further obligation shall be imposed on
Developer of the Project in connection with the Project Fair Share Contribution. Developer
waives its right to fund
for the development of facilities within the Tustin Legacy Backbone Infrastructure Program
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Tax A
or pursuant to other community facilities district, and the City agrees that Tax A
shall not be applicable to the Property or the Improvements thereon and Developer shall
have no obligation or liability on account thereof. Developer acknowledges and agrees that
its development plan for the Project will not require use of community facility district
proceeds and that neither assessment district nor community facilities district proceeds will
be used to reimburse Developer for its Development Costs, including Project Fair Share
Contribution or Project specific infrastructure costs.
CFD for Services
. Developer acknowledges that the City has
formed a community services district for services to fund a portion of the City essential
services, including police and fire protection, ambulance and paramedic services, recreation
programs and services, street sweeping, traffic signal maintenance and the maintenance of
City-owned parks, parkways and open spaces, lighting, flood control and storm drain
services and other City services and facilities at Tustin Legacy by forming a community
Tax B
facilities dist). Tax B shall
be in lieu of any other assessments, special taxes, fees or charges that may otherwise be
charged on account of the types of services covered thereby. Notwithstanding the
foregoing sentence, the City shall not be prohibited by the terms of this Agreement from
subjecting the Development Parcels and/or the Improvements thereon to any increase in ad
valorem real property tax pursuant to a City of Tustin-wide election, provided that nothing
herein shall be construed to constitute a waiver by Developer of its right or ability to
dispute or oppose passage of a City of Tustin-wide bond or tax, the proposed formation of
any special district or taxing authority in connection therewith, or the imposition of any
such tax, or its right to dispute any Development Parcels assessed value. Developer
acknowledges and agrees that the term of Tax B imposed upon the Property and the
Improvements thereon shall be perpetual and shall not be time limited in any manner unless
determined by the City in its sole discretion.
Master Marketing Program Fees
. Developer acknowledges
that the City (in its Proprietary Capacity) requires that all builders within Tustin Legacy
contribute a master marketing fee towards the marketing of Tustin Legacy by the City. In
complete satisfaction of such obligation by Developer, Developer shall pay to the City
through Escrow Holder at the Retail Property Close of Escrow a one-time master marketing
fee of Fifty Thousand Dollars ($50,000.00). The City acknowledges and agrees that this
payment shall satisfy all obligations of Developer to contribute to the master marketing
program or any future master marketing program and that Developer shall have no
additional obligations on account thereof after the payment of such fee.
Other Fees and Assessments
. Developer acknowledges and
agrees that in addition to City fees, fees may be imposed by other Governmental
Authorities with jurisdiction over the Project and/or the Property and payment of any such
fees and assessments shall be at Developers sole cost, including the Foothill/Eastern
Corridor Fee, the Santa Ana/Tustin Transportation System Improvement Area (TSIA) fee,
state-mandated school impact fees by the Tustin Unified School District, Orange County
School Facility Bonds (Measure G and Measure L), utility meter and connection fees.
Developer also acknowledges that the Development Parcels may be subject to a future
community facilities district for financing of school facilities to benefit Tustin pursuant to
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an agreement between the City and The Tustin Unified School District regarding the
transfer of school sites.
8.8Development Covenants
.
Developer, on behalf of itself and Successor Owners, hereby covenants and agrees as
follows provided, however, except with respect to the Healthcare Transferor Obligations and the
Ongoing Matters, Developer shall not have any obligations under this Section 8.8 with respect to
the Healthcare Property after the conveyance of the Healthcare Property to Healthcare
Developer, and Healthcare Developer and each of its Successor Owners shall, upon its
acquisition of the Healthcare Property, assume all of the obligations of Developer under this
Section 8.8 with respect to the Healthcare Property and the Healthcare Project (except for
Developer's obligation to complete the Minimum Horizontal Improvements):
Developer shall maintain throughout the term of this Agreement,
sufficient equity, capital and firm binding commitments for financing necessary to (a) pay
through Completion, all costs of development, construction, marketing, sale and/or leasing,
operation and management of all the Improvements as defined in the Scope of
Development without Mortgage or Construction Loan except as set forth in
Section 2.2.3(b) or Section 17 with respect to the Other Healthcare Parcels and the
Healthcare Vertical Improvements proposed to be constructed thereon only (and
specifically excluding the Medical Office Parcel); and (b) enable Developer to perform and
satisfy all the covenants of Developer contained in this Agreement and the Other
Agreements.
The development of the Project shall be done in a professional
and competent manner. Developer shall perform, and shall cause all others carrying out
work on the Development Parcels to perform, all work required to construct and Complete
the Improvements and the Project and related work in accordance with the Approved Plans,
the Entitlements, the Development Permits and all Governmental Requirements and at the
level of quality set forth in the Scope of Development.
Developer shall be responsible for the timeliness and quality of
all work performed and materials and equipment furnished in connection with the Property
and the Minimum Horizontal Improvements, whether the work, materials and equipment
are performed and furnished by Developer or through contractors or subcontractors (of all
tiers) and suppliers.
Developer shall not place, or allow to be placed, on its interests
in the Property, Improvements, or any portion thereof, any Mortgage or encumbrance of
lien not authorized by this Agreement.
Developer shall, within thirty (30) calendar days following
receipt of notice thereof, cause to be removed or bonded against (such bonding to be by the
provision of bonds satisfying California statutory requirements) any and all mechanics
liens, stop notices and/or bonded stop notices that are recorded and/or served by
contractors, subcontractors (of all tiers) and suppliers in connection with the portion of the
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Project owned by it and those other portions of the Property and adjoining City-owned
Property, including the Slope Parcel, upon which Developer is performing work or carrying
out construction or causing either of the foregoing to be carried out. Notwithstanding the
foregoing, Developer may contest the amount, validity or application, in whole or in part,
of any such mechanics liens, stop notices and/or bonded stop notices; subject, however, to
the further requirement that neither the Property nor any Improvements nor any part or
interest in either thereof would be in any danger of being sold, forfeited, attached or lost
pending the outcome of such proceedings. If any such contest is finally resolved against
Developer, Developer shall promptly pay the amount required to be paid, together with all
interest and penalties accrued thereon. Developer hereby agrees to indemnify, defend and
hold the City Indemnified Parties free and harmless from and against any and all Claims
arising from or related to failure to pay for construction of Improvements or other work
related to the Project including costs to remove or bond mechanics liens, stop notices
and/or bonded stop notices that are recorded and/or served by contractors, subcontractors
(of all tiers) and suppliers with respect to construction of Improvements or performance of
work with respect to the Project. The indemnity set forth in this Section shall survive the
termination of this Agreement.
8.9City Rights of Access
.
In addition to any rights it may have in its Governmental Capacity, representatives of the
City shall have the reasonable right of access to all portions of the Property, without charges or
fees, at normal construction hours during the period of construction for the purposes of this
Agreement, including the inspection of the work being performed in constructing the
Improvements. The City agrees to indemnify, defend and hold Developer harmless for any and
all Claims arising out of any such non-governmental inspection or other activity on the Property
or the Project by the City, or its agents, employees or contractors permitted pursuant to this
Section 8.9, except to the extent caused by the gross negligence or willful misconduct of
Developer.
8.10Disclaimer of Responsibility by City and Exculpation
.
Disclaimer of Responsibility
. The City neither undertakes nor
assumes nor will have any responsibility or duty to Developer, any Successor Owner or to
any other third party to review, inspect, supervise, pass judgment upon or inform
Developer, any Successor Owner or any third party of any matter in connection with the
development or construction of Improvements, whether regarding the quality, adequacy or
suitability of the plans, any labor, service, equipment or material furnished for development
of the Project, any Person furnishing same, or otherwise. Developer, any Successor Owner
and all third parties shall rely upon its or their own judgment regarding such matters, and
any review, inspection, supervision, exercise of judgment or information supplied to
Developer, any Successor Owner or to any third party by the City in connection with such
matter is for the public purpose of developing the Project, and neither Developer nor any
Successor Owner nor any third party is entitled to rely thereon.
Exculpation
. The City shall not be liable in damages to
Developer or to any owner, lessee, any licensee or other Person, on account of (a) any
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approval or disapproval by the City, including by the City Manager or designee whether
made in the Governmental Capacity or Proprietary Capacity of the City of any design
documents, including any Basic Concept Plans, whether or not defective or whether or not
in compliance with applicable laws or ordinances; (b) any construction, performance or
nonperformance by Developer or any owner, lessee, licensee or other Person of any work
on the Property, whether or not pursuant to Approved Plans or whether or not in
compliance with applicable laws or ordinances; (c) any mistake in judgment, negligence,
action or omission in exercising its rights, powers and responsibilities hereunder; and/or
(d) the enforcement or failure to enforce any of the provisions of this Agreement. Every
Person who makes design submittals for approval agrees by reason of such submittal, and
Developer and every Successor Owner of the Property or any portion thereof agrees by
acquiring title thereto or an interest therein, not to bring any suit or action against the City
seeking to recover any such damages and expressly waives any such claim or cause of
action for such damages which it would otherwise be entitled to assert. The review of any
design submittals shall not constitute the assumption of any responsibility by, or impose
any liability upon, the City as to the accuracy, efficacy, sufficiency or legality thereof nor
decrease or diminish any liability, duties, responsibilities, or obligations of Developer
under this Agreement or otherwise.
No Supervision or Control
. The City (whether acting in its
Governmental Capacity or its Proprietary Capacity) does not have any right, and hereby
expressly disclaims any right, of supervision or control over the architects, designers,
engineers or persons responsible for drafting or formulating of the plans, drawings and
related documents of Developer.
Graded Condition of the Development Parcels
. The City has
previously caused its contractor to rough grade the Development Parcels and such
Development Parcels have been certified by NMG Geotechnical, Inc. on September 26,
2012 (Project No. 10151-02). Developer acknowledges that the City is delivering the
Development Parcels as-is, and does not certify in any manner the grading or condition of
the Property. Developer shall look solely to the engineers, consultants and contractors and
their respective certifications and not to the City for all purposes related to the grading
work performed, including the adequacy of the work and the certification(s).
Survival
. The provisions of this Section 8.10 shall survive the
termination of this Agreement.
8.11Local, State and Federal Laws
.
Developer shall carry out the construction of the Project, including all Improvements,
subject to Section 8.1.4 and in conformity with all Governmental Requirements including all
applicable federal and State labor laws and regulations and shall investigate the applicability of
and, if and to the extent applicable, pay prevailing wages meeting the requirements of such laws
and regulations; provided that Developer reserves the right to reasonably contest such laws and
regulations. Developer hereby agrees that, with respect to the Project, Developer shall be fully
responsible for determining whether the foregoing wage requirements are applicable and agrees
to indemnify, defend and hold the City and its elected and appointed officials, employees, agents,
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attorneys, affiliates, representatives, contractors, successors and assigns free and harmless from
and against any and all Claims arising from or related to compliance by Developer or
Developers officers, directors, employees, agents, representatives, consultants and/or
contractors (at every tier) in construction of the Project with the prevailing wage requirements
imposed by any applicable federal and State labor laws.
8.12Liens, Taxes and Assessments
.
Developer shall pay when due and prior to delinquency all real estate taxes and
assessments assessed and levied on or against all portions of the Property subsequent to the
conveyance thereof by the City to Developer. Developer shall remove, or shall have removed,
any levy or attachment made on its interests in the Property (or any portion thereof), or shall
assure the satisfaction thereof within thirty (30) calendar days following receipt of notice thereof.
Nothing contained in this Agreement shall be deemed to prohibit Developer from contesting the
validity or amount of any tax or assessment or to limit the remedies available to Developer in
respect thereto. Developer hereby agrees to indemnify, defend and hold the City and its elected
and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors,
successors and assigns free and harmless from and against any and all Claims arising with
respect to or related to payment of taxes and assessments assessed or levied against the Property.
The indemnity set forth in this Section 8.12 shall survive the termination of this Agreement.
Certificate of Compliance.
9.
9.1Certificate of Compliance Defined
.
Upon satisfaction of the Conditions Precedent set forth in Sections 9.2 and 9.3, as
applicable, and upon written request therefor from Developer setting forth evidence of
satisfaction of such conditions, the City shall deliver to Developer, or Healthcare Developer with
respect to the Healthcare Property, or its respective Successor Owner owning fee title to the
Certificate of Compliance
Each Certificate of Compliance shall be substantially in the form and substance of the Certificate
of Compliance set forth on Attachment 15 and in such form as to permit it to be Recorded.
9.2Conditions Precedent for Healthcare Parcel Certificate of Compliance
.
The City shall issue a Certificate of Compliance for the Healthcare Parcel when each of
the following has occurred and Developer or, if a Transfer to a Healthcare Developer has
occurred, Healthcare Developer has certified in writing, for the benefit of the City, as to the
occurrence, truth and correctness of each item:
Completion of each of the following (collectively, the
Minimum Healthcare Improvements
: (i) the Minimum Horizontal Improvements, (ii) the
Healthcare Horizontal Improvements required for construction of the Minimum Healthcare
Vertical Improvements, and (iii) the Minimum Healthcare Vertical Improvements;
Issuance of a certificate of substantial completion for the
Minimum Healthcare Vertical Improvements by the Project Architect(s) for such Improvements;
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Final inspection of the Minimum Healthcare Improvements by or
on behalf of the City and determination by the City that such Improvements have been
Completed in conformance with this Agreement, including the Approved Plans and all
Governmental Requirements;
Issuance of certificates of occupancy or the equivalent sign-off
for a Building shell by the City for the Buildings comprising the Minimum Healthcare Vertical
Improvements; provided that nothing contained in this Agreement shall require that any interior
tenant improvements to be constructed by a Tenant under any Lease be completed in order to
satisfy the terms of this Section 9.2 or as a condition to Recording of a Certificate of
Compliance. The City shall issue a Certificate of Compliance notwithstanding that any interior
tenant improvements to be constructed by third-party tenants have not been completed;
Release or bonding in accordance with California law of all liens
or rights to record liens against the Healthcare Parcel and, if applicable, the Retail Parcel from
the general contractor and all subcontractors (at all tiers) constructing the Minimum Healthcare
Improvements having served valid preliminary 20-day notices, and the statutory period for filing
liens having expired;
Payment by Developer or, if a Transfer to a Healthcare
Developer has occurred, by Healthcare Developer to the City of all funds then owing to the City
under this Agreement and, if applicable, the Other Agreements; and
No Potential Default or Material Default by Developer or, if a
Transfer to a Healthcare Developer has occurred, by Healthcare Developer under this Agreement
shall have occurred and be continuing.
9.3Conditions Precedent for Retail Parcel Certificate of Compliance
.
The City shall issue a Certificate of Compliance for the Retail Parcel when each of the
following has occurred and Developer has certified in writing, for the benefit of the City, as to
the occurrence, truth and correctness of each of the following:
Minimum Retail
Improvements
: (i) the Minimum Horizontal Improvements, (ii) the On-Lot Horizontal
Improvements required for construction and operation of the Minimum Retail Vertical
Improvements, and (iii) the Minimum Retail Vertical Improvements;
Omitted;
Issuance of a certificate of substantial completion for the
Minimum Retail Vertical Improvements and for any additional Retail Vertical Improvements
then constructed on the Retail Parcel by the Project Architect(s) for such Improvements;
Final inspection of the Minimum Retail Improvements by or on
behalf of the City and determination by the City that such Improvements have been Completed
in conformance with this Agreement, including the Approved Plans and all Governmental
Requirements;
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Issuance of certificates of occupancy or the equivalent sign-off
for a Building shell by the City for the Buildings comprising the Minimum Retail Vertical
Improvements provided that nothing contained in this Agreement shall require that any interior
tenant improvements to be constructed by a Tenant under any Lease, be completed in order to
satisfy the terms of this Section 9.3 or as a condition to Recording of a Certificate of
Compliance. The City shall issue a Certificate of Compliance notwithstanding that any interior
tenant improvements to be constructed by third-party tenants have not been completed;
Release or bonding in accordance with California law of all liens
or rights to record liens against the Healthcare Parcel only with respect to any work performed
by Developer on the Healthcare Parcel and the Retail Parcel from the general contractor and all
subcontractors (at all tiers) constructing the Minimum Retail Improvements having served valid
preliminary 20-day notices, and the statutory period for filing liens having expired from the
general contractor and all subcontractors (at all tiers);
Developer shall have paid the Additional Purchase Price in full,
without offset, dispute or challenge;
Payment by Developer to the City of all funds then owing to the
City under this Agreement and, if applicable, the Other Agreements; and
No Potential Default or Material Default by Developer under this
Agreement shall have occurred and be continuing.
9.4Conclusive Presumption
.
Each Certificate of Compliance shall be, and shall so state, conclusive determination of
satisfactory completion of the obligations of Developer to construct pursuant to this Agreement
the portions of the Project on the Parcel to which such Certificate pertains.
9.5Not Evidence
.
Issuance by the City of a Certificate of Compliance is not notice of completion as
referred to in Section 3093 of the California Civil Code.
9.6City Obligations
.
The City shall not unreasonably withhold or delay issuance of any Certificate of
Compliance when all the Conditions Precedent thereto are satisfied. If the City refuses or fails to
issue such Certificate of Compliance after written request from Developer, provided each of the
conditions established in Section 9.2 or 9.3, as applicable, have been satisfied, the City shall,
within ten (10) Business Days of the written request, provide a written statement which details
the reasons the City refused or failed to issue such Certificate of Compliance. The statement
shall also contain a statement of the actions that Developer must take to obtain a Certificate of
Compliance, as the case may be. Upon issuance of any Certificate of Compliance, the City shall
promptly cause it to be Recorded.
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9.7Effect of Certificate of Compliance; Termination of Agreement
.
Except as set forth in this Section 9.7 and the Certificate of Compliance, after the
Recording of a Certificate of Compliance, as the case may be, any Person then owning or
thereafter purchasing, leasing, or otherwise acquiring any interest in the Parcel subject to the
Certificate of Compliance or the Improvements thereon shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or liability under this Agreement with respect
to such Improvements, except that such Party shall continue be bound by the Special
Restrictions, the CC&Rs, the Slope Parcel Easement and Landscape Installation and
Maintenance Agreement and the applicable Quitclaim Deed to the extent set forth therein.
Issuance of the Certificate of Compliance shall not waive any rights or claim that the City may
have against any party for latent or patent defects in design, construction or similar matters under
any applicable law, nor shall it be evidence of satisfaction of any of Developers obligations to
others not a party to this Agreement. The Certificate of Compliance shall be in such form as to
permit it to be Recorded. Upon Recording of the Certificate of Compliance, this Agreement
shall terminate in its entirety with respect to the Project and Property to which such Certificate of
Compliance applies, except that:
the provisions of Section 4.5.2, including the release set forth
therein, shall survive in perpetuity as further set forth in the Quitclaim Deed for such Property;
the provisions of Section 11.1.4 shall survive until the expiration
of the time period for provision of the environmental insurance policy described thereby.
the indemnities set forth in Sections 4.6.4(f), 5.5, 8.8, 8.9, 8.11,
8.12, 10.1, 10.2 and 18.12.1 shall remain in effect and shall bind the indemnifying party and its
successors and assigns to the extent set forth in the Special Restrictions or Other Agreements for
such Property; and
any and all obligations contained in the Federal Deed shall
survive in perpetuity to the extent set forth therein, unless such obligations are released by the
Federal Government.
Indemnification and Environmental Provisions.
10.
10.1Developers Indemnification
.
As a material part of the consideration for this Agreement, to the maximum extent
th
permitted by law, until the date that is the tenth (10) anniversary of the Recording of the
respective Certificate of Compliance each Developer, on behalf of itself and each Successor
Owner, hereby agrees that during the period that Developer or a Successor Owner owns a portion
of the Property and for the Additional Liability Period, such party shall indemnify, protect,
defend, assume all responsibility for and hold harmless the City and its appointed and elected
officials, agents, attorneys, affiliates, employees, contractors, consultants, and representatives
City Indemnified Parties
to the City, from and against any and all Claims resulting or arising from or in any way related to
the following:
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The marketing, sale or use of the Property owned by such party
in any way;
All acts and omissions of Developer, any of the Developer
Representatives or Tenants under any Ground Lease or Space Lease in connection
with the Project, the Property, or any portion of any of the foregoing;
Any plans or designs for Improvements prepared by or on behalf
of Developer or its Ground Lessees or Space Tenants including any errors or omissions with
respect to such plans or designs;
Any loss or damage to the City resulting from any inaccuracy in
or breach of any representation or warranty of Developer or resulting from any Default,
including Material Default, by Developer under this Agreement;
The non-performance or breach by Developer, the Developer
Representatives Tenants under any Ground Lease or Space Lease of any term or
condition of this Agreement; and
Any development or construction of any Improvements by
Developer, Tenants under any Ground Lease or
Space Lease whether regarding the quality, adequacy or suitability of the plans, any labor,
service, equipment or material furnished to the Property, any Person furnishing the same, or
otherwise.
10.2Developers Environmental Indemnification
.
As a material part of the consideration for this Agreement, and effective as to the
Property upon Developers acquisition of fee title to all or any portion thereof, Developer on
behalf of itself and Successor Owners and each and every Person claiming by, through or under
Developer or any Successor Owner, hereby agrees that Developer and each Successor Owner
shall, to the maximum extent permitted by law, indemnify, protect, defend (with counsel
reasonably acceptable to the City), assume all responsibility for and hold harmless the City
Indemnified Parties from and against any and all Claims resulting or arising from or in any way
related to the existence, Release, threatened Release, presence, storage, treatment, transportation
and/or disposal of any Hazardous Materials on, in, under, from, about or adjacent to any portion
or portions of said lands, regardless whether any such condition is known or unknown now or
upon acquisition and regardless of whether any such condition pre-exists acquisition or is
subsequently caused, created or occurring and regardless of how or by whom caused; provided
that neither Developer nor any Successor Owner shall be responsible (and such indemnity shall
not apply) to the extent of (a) the gross negligence, fraud or willful misconduct of the City
Indemnified Parties, or (b) to the extent of the active negligence or willful misconduct of the City
or any City Indemnified Parties with respect to Hazardous Materials occurring prior to the Close
of Escrow for a Parcel with respect to work performed on such Parcel. This environmental
indemnity shall be included in the Quitclaim Deed for each component of the Property provided
that such indemnity (x) shall not be binding upon Tenants who are End Users under Ground
Leases or Space Leases and (y) shall not be deemed to limit in any manner the rights and/or
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remedies that Developer may have against the Federal Government. Without limiting
Developers obligations under this Section 10.2, Developer agrees to use its commercially
reasonable efforts to include within any Ground Leases or Space Leases for the Retail Parcel, or
to cause Healthcare Developer to include within any Ground Leases or Space Leases for the
Healthcare Parcels, an indemnification from the lessee under Ground Leases or such Space
Leases for Developer
defend and hold harmless Developer and the City with respect to the Release of any Hazardous
Materials during its Lease term.
10.3Duration of Indemnities
.
The indemnities set forth in this Section 10 shall run with the land and shall bind
Developer and each and every Successor Owner while such Person owns any portion of the
Project and during the Additional Liability Period applicable to such Person, with respect to such
owned portion of the Project, shall survive each Close of Escrow, shall not be merged into any
Quitclaim Deed and shall be set forth in their entirety in the Special Restrictions.
10.4Claim Response
.
In the event that following the Retail Property Close of Escrow, any Environmental
Agency or other third party brings, makes, alleges, or asserts a Claim, arising from or related to
any actual, threatened, or suspected presence or Release of Hazardous Materials on or about the
Property or Parcel or any Improvements thereon, including any Claim for Investigation or
Remediation on the Property or such Improvements, or such Environmental Agency or other
third party orders, demands, or otherwise requires that any Investigation or Remediation be
conducted on the Property or Parcel or with respect to Improvements thereon, Developer shall
promptly upon its receipt of notice thereof, notify the City in writing and thereafter shall
promptly and responsibly evaluate and respond to such Claim as provided in Section 10.5 below.
Further, upon receipt of such Claim, order, demand or requirement, Developer shall take such
reasonable measures, as necessary or appropriate, to reasonably dissuade such Environmental
Agency or other third party from bringing, making, alleging, or asserting any Claim against the
City arising from or related to the presence or any actual, threatened, or suspected Release of
Hazardous Material on or about the Property, Parcel or such Improvements, including any Claim
for Investigation or Remediation on the Property, Parcel or Improvements; provided, however,
that such obligation shall not apply to those excluded Claims identified in clauses (a) and (b) in
Section 10.2.
10.5Release Notification and Remedial Actions
.
If, after the Close of Escrow with respect to a component of the Property or the
Development Parcels, there presence or any Release of a Hazardous Material is discovered on
such Property or Parcel or any Improvements thereon, and regardless of the cause, Developer
shall with respect to the Property, Parcel and/or Improvements promptly provide written notice
(or in the event of emergency, telephonic notice, followed by written notice) of any such Release
to the City. To the extent that any Environmental Agency (other than the City) is requiring that
the City Remediate any pre-existing condition or Release and the Developer acknowledges that it
is obligated to assume responsibility or indemnify the City with respect to such Release pursuant
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to Section 10.2 or there is a good faith dispute between the City and Developer as to whether
Developer is obligated to assume responsibility or indemnify the City with respect to such
condition or Release pursuant to Section 10.2, then Developer shall (a) Remediate the condition
or Release in compliance with and to the extent required by Environmental Laws and such
Environmental Agency, or if such removal is prohibited by any Environmental Laws, take
whatever action is required by any Environmental Law and such Environmental Agency; (b) take
such other reasonable action as is necessary to have the full use and benefit of the Property as
contemplated by this Agreement; and (c) provide the City with satisfactory evidence of the
actions taken as required in this Section. To the extent that any Environmental Agency (other
than the City) is requiring that the City Remediate such condition Release and the City
acknowledges that Developer is not obligated to assume responsibility or indemnify the City
with respect to such condition or Release pursuant to Section 10.2 or no Environmental Agency
(other than the City) is requiring that the City Remediate such condition or Release, then (as
between Developer and the City under this Agreement) Developer may elect in its sole discretion
whether to Remediate such condition or Release and/or pursue any rights that Developer has
against any Person (including the Federal Government and the City) with respect to such
rights against any responsible party or against the Federal Government pursuant to the Navy
Responsibilities and without compromising the applicability of any insurance coverage in regard
to such Release. The City and Developer will coordinate any remediation action with
appropriate environmental insurance carriers so as not to compromise coverage for the costs of
such actions. Nothing set forth herein requires Developer to perform any obligation of the
Federal Government and nothing set forth herein shall be deemed to limit or impair (or take any
action that might limit or impair) in any manner the rights and/or remedies that Developer or
City may have against the Federal Government or any other rights and/or remedies of Developer.
10.6Conflict with Section 330 and Other Federal Government Obligations
.
Notwithstanding anything to the contrary contained in this Section 10, in the event that
any actions required to be taken by Developer pursuant to this Section 10 could potentially result
in Developer losing rights, or are contrary to any rights, which it otherwise would have pursuant
to Section 330, Fiscal Year 1993, National Defense Authorization Act Public Law 102-484 or
otherwise against the Federal Government, then the City and Developer shall meet in order to
determine the proper course of action to be taken by Developer. The course of action to be
agreed upon shall protect the Citys interest in the Project and Tustin Legacy, while retaining for
Developer its rights pursuant to Section 330 or otherwise against the Federal Government to the
maximum extent reasonable under the circumstances. Notwithstanding the foregoing, nothing
set forth in this Section 10.6 relieves Developer with respect to Developers environmental
responsibilities and obligations and environmental indemnification of Developer to the City in
this Agreement.
10.7Insurance and Indemnification
.
Notwithstanding anything contained herein and without limiting or relieving Developer
or any Successor Owner of its obligations to indemnify, defend and hold harmless the City
Indemnified Parties under this Agreement, the City agrees that with respect to any Claims
tendered by any one (1) or more of the City Indemnified Parties under this Agreement for which
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Developer has the obligation to indemnify the City pursuant to the terms of this Agreement, the
City Indemnified Parties shall, to the extent such insurance could reasonably be determined to be
applicable to the type, extent, value and/or location of the Claim being made, tender such Claim
concurrently with the insurer with respect to the environmental insurance policy required
pursuant to Section 11.1.4 of this Agreement and shall thereafter use reasonable commercial
efforts to prosecute its Claim for coverage with such insurer. To the extent that insurance is
determined by the City not to be reasonably applicable to the Claim or, if after six (6) months,
despite such efforts, insurance proceeds are not available to cover all or a portion of the Claim or
if such Claim is earlier denied by the insurance carrier, Developer shall promptly pay to the City
Indemnified Parties the Claim amounts not then covered by the environmental insurance policy.
Developer shall assist and cooperate with the City in its tender of Claims as required by this
Section and shall pay in accordance with the indemnity obligations of Developer, all staff and
third party costs incurred by the City pursuant to this Section.
Insurance.
11.
11.1Required Insurance
.
Without limiting the Citys rights to indemnification, Developer, or Healthcare Developer
with respect to the Healthcare Property, shall procure and maintain, at its own cost and expense
or cause any tenant under a Lease or Successor Owner to obtain (except in connection with
Section 11.1.4 which Developer shall procure and maintain), and furnish or cause to be furnished
to the City, evidence of the following policies of insurance (complying with the requirements set
forth below) naming the respective Developer as insured and, with respect to the insurance
required pursuant to Section 11.1.1 and 11.1.4 only, the City as additional insured. All insurance
required below shall be kept in force with respect to each such component of the Property and
the Project until Recording of a Certificate of Compliance with respect thereto except as
provided otherwise in Section 11.1.4 below. Upon sale or ground lease of the Healthcare
Property to a Healthcare Developer or any Building Pad to an End User, the Healthcare
Developer or End User, as the case may be, may provide the insurance required by this Section
(except for Section 11.1.4) with respect to the portion of the Property Leased or sold to it and the
Improvements thereon and in such case Developer shall not be required to carry duplicative
insurance, and Developer shall continue to maintain the insurance required by this Section with
respect to all portions of the Development Parcels and Improvements not sold or leased to
Healthcare Developer or an End User. Notwithstanding anything contained in Sections 11.1.1
and 11.1.2 to the contrary, each of the requirements set forth in this Section 11 may be satisfied
through Developers or an affiliated entitys umbrella insurance policies.
Liability Insurance
. Commencing upon the Effective Date,
Developer shall maintain or cause to be maintained commercial general liability insurance,
to protect against loss from liability imposed by law for damages on account of personal
injury, including death therefrom, suffered or alleged to be suffered by any Person or
Persons whomsoever on or about the Property and the business of Developer on the
Property, or in connection with the operation thereof, resulting directly or indirectly from
any acts or activities of Developer or anyone directly or indirectly employed or contracted
with or acting for Developer, or under its respective control or direction, and also to protect
against loss from liability imposed by law for damages to any property of any Person
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occurring on or about the Property or related to the Project and the business of Developer
on the Property, or in connection with the operation thereof, caused directly or indirectly by
or from acts or activities of Developer or any Person acting for Developer, or under its
control or direction. Such insurance shall also provide for and protect the City against
incurring any legal cost in defending Claims for alleged loss. Such insurance shall be
maintained in full force and effect with respect to each Parcel until Recording of a
Certificate of Compliance for such Parcel and so long thereafter as necessary to cover any
claims of damages suffered by Persons or property prior to Recording of a Certificate of
Compliance for the Project, resulting from any acts or omissions of Developer, Developers
employees, agents, contractors, suppliers, consultants or other related parties. The amount
of insurance required hereunder shall include comprehensive general liability and personal
injury with limits of at least Five Million Dollars ($5,000,000.00) and automobile liability
with limits of at least Two Million Dollars ($2,000,000.00) combined single limit per
occurrence. The insurance shall be issued by a company authorized by the Insurance
Department of the State of California and rated A-/VII or better (if an admitted carrier) or
A-VIII (if offered, by a surplus line broker), by the latest edition of Bests Key Rating
Guide. Subject to the prior approval of the City Attorney and City Risk Manager, such
insurance may be provided by an umbrella insurance policy otherwise meeting the
requirements of this Section 11.
An Accord certificate evidencing the foregoing and providing the following
endorsements signed by the authorized representative of the underwriter and approved by the
City shall be delivered within seven (7) Business Days following the Effective Date and annually
(upon request from the City) evidencing renewals of each policy until Recording of a Certificate
of Compliance for the Project. The endorsements shall provide as follows: (a) designate the
City, its elected and appointed officials, agents, representatives and employees as additional
insureds on the commercial general liability policies; (b) the commercial general liability
insurance coverage shall be primary, and not contribute with any insurance or self-insurance
maintained by the City and (c) a waiver of subrogation for the benefit of the City. The procuring
of such insurance and the delivery of policies, certificates or endorsements evidencing the same
shall not be construed as a limitation of Developers obligation to indemnify the City
Indemnified Parties as set forth herein.
Workers Compensation Insurance
. Commencing upon the
Effective Date, Developer shall obtain, and thereafter maintain or cause to be maintained,
workers compensation insurance issued by a responsible carrier authorized under the laws
of the State of California to insure employers against liability for compensation under the
workers compensation laws now in force in California, or any laws hereafter enacted as an
amendment or supplement thereto or in lieu thereof. Such workers compensation
insurance shall cover all Persons employed by Developer in connection with the Project
and shall cover liability within statutory limits for compensation under any such act
aforesaid, based upon death or bodily injury claims made by, for or on behalf of any Person
incurring or suffering injury or death in connection with the Project or the operation thereof
by Developer. Notwithstanding the foregoing, Developer may, in compliance with the
laws of the State of California and in lieu of maintaining such insurance, self-insure for
workers compensation in which event Developer shall deliver to the City evidence that
such self-insurance has been approved by the appropriate State authorities. Developer shall
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also furnish (or cause to be furnished) to the City evidence satisfactory to the City that any
contractor with whom it has contracted for performance of work on the Property or
otherwise pursuant to this Agreement carries workers compensation insurance required by
law. The insurance policy, by endorsement signed by an authorized representative of the
underwriter, shall contain a waiver of subrogation. The insurance provided for under this
Section 11.1.2 shall be issued by a company rated B-/VIII or better or from the State
Compensation Fund.
Builders Risk Insurance
. Commencing upon the
commencement of construction by Developer of any Improvements and continuing until
such time as the City Records a Certificate of Compliance with respect to a Parcel,
Developer shall obtain, or shall cause its contractor to obtain, and thereafter maintain a
builders risk policy with respect to the improvements constructed on such Parcel or in
connection with development of such Parcel or maintain comparable coverage through a
property policy. Such insurance shall be maintained in an amount not less than one
hundred percent (100%) of the full insurable value of the Improvements to be constructed
on or in connection with development of such Parcel. The insurance provided for under
this Section 11.1.3 shall be provided by insurer(s) licensed to do business in the State of
California and with a Bests rating of B/NR or better.
Environmental Insurance
. From and after the Retail Property
Close of Escrow, Developer shall obtain and shall thereafter maintain environmental and
pollution legal liability insurance coverage for the Property, including coverage for loss,
remediation expense and legal defense expenses, and naming the City as additional insured
to address pollution risks at the Property. Such policy shall include coverage relating to
known pre-existing conditions, exacerbation of existing conditions, and/or conditions that
are discovered during development on the Development Parcels. Notwithstanding anything
herein to the contrary, Developer may satisfy its obligations under this Section 11.1.4 in
connection with the Healthcare Parcel by imposing upon Healthcare Developer, upon its
acquisition of the Healthcare Property the obligation to obtain and maintain the insurance
required by this Section 11.1.4. Such policy shall comply with the following requirements:
The policy shall be written by the insurance company selected by
Developer and approved by the City, which approval shall not be unreasonably withheld, and
which insurer(s) shall have a Bests rating of A-/VII or better;
The policy shall provide Five Million Dollars ($5,000,000) in
coverage, subject to a maximum One Million Dollar ($1,000,000) deductible per claim, to
protect against Claims and loss from liability relating to known and unknown conditions on the
Property for a 5-year term with an extended reporting period of at least 24 months; and
The policy shall be paid for in full at the time of issuance and
shall be endorsed as non-cancelable without the written consent of Developer and the City in its
sole discretion to such cancellation and, to the extent available, shall contain a waiver of
subrogation for the benefit of the City. As such, Developers obligation to maintain
environmental insurance pursuant to this Section 11.1.4 shall survive the termination of this
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Agreement following the Retail Property Close of Escrow for the term required for such
insurance policy pursuant to Section 11.1.4(b).
11.2General Insurance Requirements
.
For all policies or certificates, an authorized representative of
Insured Party
De
its insurance broker shall notify the City within thirty (30) calendar days after its
knowledge of any cancellation, termination or modification of such policies.
full insurable value
The terection 11 shall
mean the cost determined by mutual agreement of the Parties (excluding the cost of
excavation, foundation and footings below the lowest floor and without deduction for
depreciation) of providing similar Improvements of equal size and providing the same
habitability as the Improvements immediately before such casualty or other loss, but using
readily-available contemporary components, including the cost of construction,
architectural and engineering fees, and inspection and supervision.
All insurance provided under this Section 11 shall be for the
benefit of the City and any additional Parties that the Developer may require. Developer
shall, and shall cause each Insured Party, (a) to timely pay all premiums for such insurance
and, at its sole cost and expense, to comply and secure compliance with all insurance
requirements necessary for the maintenance of such insurance, and (b) to submit
certificates evidencing such insurance to the City on an Accord form within seven (7)
Business Days following the Effective Date, or, with respect to coverage required by
Section 11.1.4, eachClose of Escrow. Upon request by the City, within seven (7) calendar
days, if practicable, after expiration of any such policy, certificates evidencing renewal
policies shall be submitted to the City.
If Developer fails to procure or to cause any Insured Party to
procure and maintain insurance as required by this Agreement, the City shall have the right,
at the Citys election, and upon ten (10) calendar days prior notice to Developer, to
procure and maintain such insurance. The premiums paid by the City shall be treated as a
loan, due from Developer, to be paid on the first calendar day of the month following the
date on which the premiums were paid. The City shall give prompt notice of the payment
of such premiums, stating the amounts paid and the name of the insured(s).
Since the insurance policies required by Section 11.1.4 will not
be effective until after eachClose of Escrow, the evidence of insurance to be delivered by
Developer to the City at eachClose of Escrow shall be limited to a binder evidencing that
the insurance required by Section 11.1.4 will become effective following suchClose of
Escrow.
Covenants and Restrictions.
12.
The following covenants and restrictions shall be set forth in the Special Restrictions and
shall run with the land for the duration set forth below and in the Special Restrictions for the
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benefit of the City in its Proprietary Capacity. The Special Restrictions may contain additional
covenants and restrictions as further set forth therein.
12.1Use Covenants and Restrictions
.
Developer covenants and agrees for itself and each Successor Owner and each and every
Person claiming by through or under Developer or any Successor Owner that:
The Retail Parcel and each part thereof shall be utilized only for
lawful Retail Uses and only as and to the extent permitted by the Entitlements;
The Healthcare Parcel and each part thereof shall be utilized only
for the following lawful uses and only as and to the extent permitted by the Entitlements:
(i) Medical Uses and (ii) only in the Buildings identified in the Scope of Development as
Medical Retail
Buildings, Healthcare Parcel Retail Uses. Neither Developer nor any
Successor Owner nor any Person claiming by through or under Developer or any Successor
Owner including any End User shall use the Development Parcels or any portion thereof for any
Prohibited Use.
The Developer and its Successor Owners and all End Users shall
be subject to the covenants, conditions and restrictions set forth in the Quitclaim Deed applicable
to the Property, the Special Restrictions and the CC&Rs.
12.2Maintenance Covenant
.
Maintenance Standards
. Developer, on behalf of itself and
each Successor Owner, hereby covenants and agrees, from and after eachClose of Escrow
to maintain the Development Parcels then acquired by Developer and the Improvements
thereon consistent with the following requirements:
Prior to commencement of construction, Developer shall be
responsible, at its sole cost and expense, (i) to secure and maintain the Development Parcels in a
clean, safe and secure condition, in compliance with all applicable laws, (ii) to abate weeds and
other hazards and nuisances on such portion of the Development Parcels as are not then under
construction, (iii) to erect and maintain barricades and fencing, and provide security, in each case
with respect to the Development Parcels and as reasonably necessary to protect the public and
any Improvements already constructed, and (iv) to maintain (in compliance with all
Environmental Laws) erosion control on the Development Parcels.
From the date of commencement and during the continuance of
construction of any Improvements on the Development Parcels and until Completion thereof,
Developer shall maintain the Development Parcels and the Improvements thereon then under
construction consistent with normal and customary construction industry practice.
From and after the issuance of a certificate of occupancy for any
Improvements on the Development Parcels, while this Agreement is in effect, Developer shall
maintain all Improvements on the Development Parcels not then under construction in a clean,
sanitary, orderly and attractive condition, subject to reasonable wear and tear, damage by
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casualty or condemnation, as further set forth in the Special Restrictions. Developer shall be
required to meet the standard for the quality of maintenance of the Improvements on the
Development Parcels required by this Section regardless of whether or not a specific item of
maintenance is listed below, except that, in each case, and notwithstanding anything in this
Section to the contrary, Developer shall not have any maintenance obligation with respect to any
items owned or controlled by (or on property owned or maintained by) a utility franchisee, any
lighting or landscape district or by the City. Representative items of maintenance shall include:
(i) maintenance and repair on a regular schedule, consistent with Class A Standards, of Buildings
and maintenance, repair and replacement on a regular schedule consistent with Class A
Standards, of improvements, private streets, roads, drives, sidewalks, utilities, Common Area,
landscaping, hardscaping and fountains; (ii) frequent and regular inspection for graffiti or
damage or deterioration or failure, and reasonably prompt (or, in the case of graffiti, within 48
hours) repainting or repair or replacement of all surfaces, fencing, walls, equipment, etc., as
necessary; (iii) emptying of trash receptacles and removal of litter; (iv) regular sweeping of
private streets, roadways and sidewalks throughout the Development Parcels; (v) fertilizing,
irrigating, trimming and replacing vegetation as necessary; (vi) cleaning exterior windows on a
regular basis; (vii) painting the Buildings on a regular program and prior to the deterioration of
the painted surfaces; and (viii) conducting roof inspections on a regular basis and maintain roofs
in a leak free and weather tight condition.
Maintenance Responsibilities
. Developer shall have the right
(a) to assign its maintenance responsibilities under this Agreement with respect to the
Healthcare Parcel to Healthcare Developer. Upon such assignment, the transferor
Developer shall have no further liability under this Section 12.2 with respect to
maintenance of the Healthcare Parcel except as specifically set forth in the CC&Rs or the
Slope Parcel Easement and Landscape Installation and Maintenance Agreement.
Developer shall have the right to subcontract its maintenance responsibilities under this
Agreement to a Developer Affiliate (and Healthcare Developer shall have the right to
subcontract its maintenance responsibilities under this Agreement to an HCD Affiliate) or a
first class property management company or other third party that has an interest in one of
the Parcels, provided that such subcontracting shall not relieve Developer of any liability
for its obligations under this Section 12.2.
City Rights to Maintain
. In the event Developer or any
Successor Owner fails to maintain the Improvements or landscaping on the Development
Parcels or any portion thereof in accordance with the standard for the quality of
maintenance set forth in this Section or the Special Restrictions, the City or its designee
shall have the right but not the obligation to enter the Property upon reasonable notice to
Developer or its Successor Owners, correct any such failure, and hold Developer, or such
Successor Owner, responsible for the cost thereof, and such cost, until paid, shall constitute
a lien on the applicable portion of the Property as and to the extent described in
Section 16.2.
12.3Additional Purchase Price
.
Additional Purchase Price Obligation
. Developer covenants
and agrees on behalf of itself and each Successor Owner of the Retail Parcel, or any portion
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thereof, to pay to the City the Additional Purchase Price. The provisions of this
Section 12.3 shall run with the land, shall not merge with any Quitclaim Deed and shall
survive any termination of this Agreement following the Retail Property Close of Escrow
until the Additional Purchase Price is paid in full.
No Interest in Project
. The Citys right to receive the
Additional Purchase Price as set forth herein does not confer upon the City any proprietary
or other interest in the Property or the Project.
Secured by REG Guaranty
. The obligation of Developer to
pay the Additional Purchase Price shall be secured by the REG Guaranty and by any
subsequent Guaranty with respect to the Retail Parcel and Improvements provided pursuant
to the terms of this Agreement.
12.4Slope Parcel Easement and Landscape Installation and Maintenance
Agreement
.
Concurrently with the Close of Escrow, Developer and the City shall enter into a Slope
Parcel Easement and Landscape Installation and Maintenance Agreement in substantially the
form and substance of the instrument attached as Attachment 25 or otherwise as agreed by the
Slope Parcel Easement and Landscape
City and Developer each i
Installation and Maintenance Agreement
pursuant to which Developer on behalf of itself
and each Successor Owner shall agree to landscape and maintain the Slope Parcel for the benefit
of the City, as owner of the Slope Parcel, and its Successor Owners, and the Parties shall grant to
each other various access and maintenance agreements for such purpose. If requested by any
Party, the other Parties shall, at and as a condition to the Healthcare Property Close of Escrow,
enter into a Slope Parcel Agreement Confirmation with respect to the Healthcare Restrictions (as
defined in the Slope Parcel Easement and Landscape Installation and Maintenance Agreement)
to assure the enforceability of and to effectuate the easements and Healthcare Restrictions set
forth in the Slope Parcel Easement and Landscape Installation and Maintenance Agreement and
to provide notice of such actions.
12.5Duration of Covenants
.
The covenants in Sections 12.1 and 12.2.2 shall be included in the Special Restrictions
and shall remain in force and effect with respect to each Parcel until the date which is the twenty-
fifth (25th) anniversary of the Recording of the last Certificate of Compliance for such Parcel,
unless released at an earlier date by the City in writing. The covenants set forth in Section 12.2.1
shall remain in effect only until CC&Rs addressing maintenance requirements in substance
substantially similar to those set forth in Section 12.2.1 are approved by the City, executed and
Recorded. The covenants in Section 12.3 shall survive each Close of Escrow and shall not be
merged into any Quitclaim Deed, shall survive any termination of this Agreement following the
Retail Property Close of Escrow and shall remain in effect until paid in full.
12.6Obligation to Refrain from Discrimination
.
Developer covenants and agrees for itself and each Successor Owner, that there shall be
no discrimination against or segregation of any person, or group of persons, on account of sex,
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race, color, religion, ancestry, national origin, disability, medical condition, marital status, or
sexual orientation in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property
or in development of the Project, nor shall Developer establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property or in
development of the Project or any part thereof.
12.7Deed Restrictions/Covenants Running with the Land
.
The obligations of Developer set forth in this Agreement, the Special Restrictions and
each Quitclaim Deed shall be covenants running with the land, shall be binding upon Developer,
each Successor Owner and each and every Person claiming by, through or under Developer or
any Successor Owner for the benefit of the City and the City Benefited Parcels.
12.8Priority of DDA and Special Restrictions
.
This Agreement, including the Lien, the Right of Repurchase and the Right of Reversion
contained herein, the Memorandum of DDA, the Special Restrictions, the Slope Parcel Easement
and Landscape Installation and Maintenance Agreement and the CC&Rs shall be superior in
priority to all Mortgages.
CC&Rs.
13.
As a condition precedent to the Retail Property Close of Escrow, Developer shall prepare,
submit to the City for approval which shall be granted or denied in the sole discretion of the City,
a set of covenants, conditions and restrictions, as well as design guidelines for development of
the Improvements to be constructed as part of the Project, together with other requirements
CC&Rs
included in the conditions of approval for the Parcel Map
Among other things and without limitation, the CC&Rs shall establish (a) access and
maintenance easements, including pedestrian and vehicular access by all owners and Tenants to
the shared main driveway aisle from Kensington Park Drive, (b) certain use restrictions; and
(c) the mechanism for sharing costs for maintenance, repair and replacement of the Common
Area and Common Area Improvements between the Retail Parcel owner(s) and the Healthcare
Parcel owner(s). The CC&Rs shall be Recorded against the entirety of the Development Parcels
at the Retail Property Close of Escrow, but shall include the right of the City to require that the
CC&Rs be amended as is necessary to accommodate the development of any portion of the
Development Parcels that are not acquired by Developer on or before the Healthcare Property
Outside Closing Date or are Reacquired Property acquired by the City pursuant to Section 16.3
or 16.4 of this Agreement. From and after the Retail Property Close of Escrow, Developer and
each Successor Owner of the Development Parcels shall be responsible for all costs associated
with maintenance and repair of the Improvements, and the City shall have no liability therefor.
Potential Defaults and Material Defaults.
14.
14.1Potential Defaults
.
Except as otherwise provided in this Agreement, in the event either Party (the
Defaulting Party
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or in part, required to be performed by the Defaulting Party as provided in this Agreement (a
Potential DefaultInjured Party
Default Notice
the particulars of the Potential Default. The Parties agree to cooperate in good faith and meet
and confer regarding each Potential Default.
14.2Material Defaults
.
Monetary Defaults
. Notwithstanding any other provision of this
Agreement, if a Party fails to pay the other Party any sum required to be paid pursuant to
this Agreement and the Injured Party gives the Defaulting Party a Default Notice of such
nonpayment, such nonpayment shall be a Potential Default. The Defaulting Party shall
have a period of fifteen (15) calendar days after the date the Default Notice is received, or
deemed to have been received, within which to cure the Potential Default by making the
required payment; the period to cure such Potential Default shall not be extended by Force
Majeure Delay. In the event a Potential Default for nonpayment is not cured within said
Material Default
fifte
that shall be deemed to have occurred upon the expiration of the cure period.
Non-Monetary Defaults
. With respect to non-monetary
Material Default
defaults under this Agreement, a Potenti
the event the Potential Default is not cured, at the Defaulting Partys expense, (a) within
thirty (30) calendar days after the date the Default Notice is received, or deemed to have
been received by the Defaulting Party, or (b) if such cure cannot be reasonably
accomplished within such thirty (30) calendar day period, within ninety (90) calendar days
after the date the Default Notice is received, or deemed to have been received by the
Defaulting Party, but only if the Defaulting Party has commenced such cure within such
thirty (30) calendar day period and diligently pursues such cure to completion, or (c) within
such longer period of time as may be expressly provided in this Agreement or as mutually
agreed to in writing between the Parties with respect to the Potential Default. Except as set
forth in Section 14.2.3, the time periods set forth in this Section 14.2.2 to cure a Potential
Default shall be extended by Force Majeure Delay. Following written notice and failure to
cure within the time periods set forth above, each Potential Default shall become a Material
Default that shall be deemed to have occurred upon the expiration of the applicable cure
period. Notwithstanding anything in the foregoing to the contrary, the Defaulting Party
may cure a Material Default at any time prior to the date the Injured Party exercises its
remedy for the Material Default.
Transfer Defaults
. Notwithstanding the foregoing, any Transfer
or any Transfer of Control in violation of the provisions of Section 2 shall be null and void
and shall in all events be a Material Default under this Agreement as of the date of the
Transfer by the violating party, without notice or cure period and shall not be subject to
extension for Force Majeure Delay, except that with respect to involuntary mechanics
liens for which the notice and cure periods set forth in Section 14.2.2 shall apply, in order
to enable Developer to comply with the provisions of Section 8.6.
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Interest
. If a monetary Material Default occurs under this
Agreement, then in addition to any other remedies conferred upon the Injured Party
pursuant to this Agreement, the Defaulting Party shall pay to the Injured Party, in addition
to all principal amounts due, interest on such principal amounts at the Default Rate, for the
period from the date such payment or part thereof was due until the date the same is paid.
No Waiver
. Failure or delay by an Injured Party to deliver a
Default Notice shall not constitute a waiver of any Default, nor shall it change the time of
Default. Except as otherwise expressly provided in this Agreement, any failure or delay by
either Party in asserting any of its rights and remedies as to any Default shall not operate as
a waiver of any Default or of any such rights or remedies. Delays by either Party in
asserting any of its rights and remedies shall not deprive either Party of its right to institute
and maintain any actions or proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
Developer and Healthcare Developer Obligations Related to
Healthcare Property Transfer
. Notwithstanding anything in this Agreement to the
contrary but subject to the terms of Section 2.2.3(b)(iv) and (v) hereof, following a Transfer
of the Healthcare Property to a Healthcare Developer pursuant to Section 2.2.3(b) until
Recording of a Certificate of Compliance for the Healthcare Parcel, Healthcare Property
Transferor and Healthcare Developer shall be obligated to comply with the following:
Healthcare Property Transferor covenants and agrees,
notwithstanding any Transfer to Healthcare Developer: (i) to carry out the Healthcare Transferor
Obligations; (ii) to construct the Minimum Horizontal Improvements upon the entirety of the
Property and (iii) s,
the HCD Assignment and the HCD Guaranty in order to ensure that the Minimum Healthcare
Improvements are completed in accordance with the Scope of Development and the Healthcare
Schedule of Performance, provided that the City may, at any time, and at its option, exercise its
rights under the HCD Assignment, the HCD Guaranty or the REG Guaranty (but as to the REG
Guaranty, only with respect to the Minimum Horizontal Improvements on the Healthcare
Parcel), as applicable, with respect thereto. The obligations of Developer under this clause (a)
shall not be transferable or Transferred to Healthcare Developer; provided however, that
Healthcare Developer shall be obligated to construct the Minimum Horizontal Improvements
upon the Healthcare Property, but only in the event that Healthcare Property Transferor fails to
timely carry out such construction in accordance with the Schedule of Performance, as further set
forth in Section 2.2.3(b)(iv)(A).
Healthcare Property Transferor shall have the right, but not the
obligation, jointly with Healthcare Developer, to cure any obligations under this Agreement or
the Other Agreements assigned by Healthcare Property Transferor to Healthcare Developer.
Healthcare Property Transferor, and by acceptance of the Assignment, Healthcare Developer
agree that the time period for Completion of construction of the Healthcare Horizontal
Improvements and the Healthcare Vertical Improvements by Healthcare Developer shall be
reduced by six (6) months from the time period otherwise set forth in this Agreement for
performance by Developer. Any Potential Default of Healthcare Developer shall not become a
Material Default of Healthcare Developer or Healthcare Property Transferor if either cures such
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Potential Default during the time period set forth in Section 14.2.1 or 14.2.2, as applicable.
Following the Healthcare Property Close of Escrow and a Transfer of the Healthcare Property to
a Healthcare Developer that is not a Developer Affiliate, and with respect to the Transferred
Property only, Healthcare Property Transferor shall have the right, at any time prior to the earlier
of exercise of the Right of Repurchase and/or Right of Reversion or the termination of this
Agreement that affects the Transferred Property or any portion thereof, to cure or remedy a
Default, to effect any insurance, to pay any amounts due to the City, to make any repairs or
improvements, to do any other act or thing required of Healthcare Developer under this
Agreement and to do any act or thing which may be necessary and proper to be done in the
performance and observance of this Agreement to prevent Material Default by Healthcare
Developer or the termination of this Agreement or the rights of Healthcare Developer hereunder.
Any of the foregoing done by Healthcare Property Transferor shall be as effective to cure such
Default or to prevent a termination of this Agreement or the exercise by the City of the Right of
Repurchase or the Right of Reversion as the same would have been if done by Healthcare
Developer.
If either Healthcare Property Transferor and/or
Healthcare Developer fail to cure any Default of Healthcare Developer within the time periods
set forth in this Agreement for such cure, the City, in addition to any rights it may have with
respect to Healthcare Developer, shall have the right, but not the obligation, at its option and
without exclusivity, to exercise all remedies under this Agreement and/or the HCD Guaranty,
including, to the extent such remedy is available pursuant to Section 16.3 or 16.4, to exercise the
Right of Repurchase set forth in Section 16.3 or to exercise its Right of Reversion with respect to
the Healthcare Project, the Healthcare Property and Improvements or any portion thereof and/or
to terminate this Agreement with respect thereto. Healthcare Developer shall be liable for and
shall pay to the City all costs and expenses incurred by the City, if any, in enforcement by the
City of its remedies under this Agreement or the HCD Guaranty with respect to the Healthcare
Developer, the Healthcare Project, the Healthcare Property or any Improvements thereon,
including the exercise by the City of the Right of Repurchase or Right of Reversion with respect
to the Healthcare Parcel or any portion thereof, but excluding the Repurchase Price applicable to
any Reacquired Property actually acquired by the City pursuant to the Right of Repurchase;
provided that the City shall be entitled to retain the Reacquired Property so acquired in its
entirety, notwithstanding any contribution or payment made by Developer, or by REG pursuant
to the REG Guaranty, Healthcare Developer or Healthcare Guarantor pursuant to the Healthcare
Guaranty.
In the event of any Default by Healthcare Property Transferor
with respect to the Healthcare Transferor Obligations, the City shall have the right, at its option
and without exclusivity, but not the obligation, to exercise all remedies under this Agreement,
and the REG Guaranty, including, to the extent such remedy is available pursuant to Section 16.3
or 16.4, to exercise the Right of Repurchase set forth in Section 16.3 or to exercise its Right of
Reversion with respect to the Retail Project, the Retail Property and Improvements or any
portion thereof and/or to terminate this Agreement with respect thereto.
Healthcare Property Transferor shall provide notice to the City of
any default by Healthcare Developer under the agreements between Healthcare Property
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Transferor and Healthcare Developer, concurrently with its provision of notice of such default to
Healthcare Developer.
In the event that Healthcare Property Transferor intends to cure
the Default of Healthcare Developer pursuant to this Section 14.2.6, then Healthcare Property
Transferor shall provide written notice to the City within fifteen (15) calendar days after its
receipt of the Notice to Healthcare Property Transferor specifying its proposed actions, and shall
thereafter provide written reports to the City on a monthly basis setting forth its actions to date
and proposed actions to cure the Default of Healthcare Developer.
14.3Due Diligence Information; Products
.
Destruction of Due Diligence Information
. Developer (and
Healthcare Developer, if any) shall use commercially reasonable efforts to return to the
City all written Due Diligence Information in Developers possession: (a) pertaining to the
Property within five (5) Business Days following (i) termination of this Agreement prior to
the Retail Property Close of Escrow or (ii) the Retail Property Outside Closing Date, if the
Close of Escrow for the Retail Property shall not have taken place on or before such date,
or (b) pertaining to the Healthcare Property following (i) termination of this Agreement as
to the Healthcare Property prior to the Healthcare Property Close of Escrow or (ii) the
Healthcare Property Outside Closing Date, if the Close of Escrow for the Healthcare
Property shall not have taken place on or before such date. The obligation to return Due
Diligence Information to the City under this Section is without representation or warranty
of any kind by Developer and/or Healthcare Developer, as applicable.
Surrender of Transferable Products
. In connection with the
proposed Project, Developer shall be preparing or causing to be prepared architectural and
other products, surveys, plans, reports, tests, studies and investigations with respect to the
Products
prepared at Developers sole cost and expense. If (a) this Agreement is terminated for any
reason other than a Material Default by the City prior to the Retail Property Close of
Escrow or (b) if either the Healthcare Property Outside Closing Date or the Retail Property
Outside Closing Date shall pass without the Close of Escrow for such Property having
taken place and this Agreement shall terminate as to either such Property then, with respect
to all Products with respect to the portion of the Property for which this Agreement has
terminated, other than financial or economic estimates, projections and evaluations; studies
and information related to potential tenants, lenders and investors; and any confidential or
proprietary information of Developer or its equity partner(s) (the Products not subject to
Transferable Products
such
Developer, for consideration to be mutually agreed, transfer Developers rights to any or all
of the Transferable Products identified by the City, but in no event shall the cost to the City
exceed Five Thousand Dollars ($5,000.00). Upon such request, Developer shall deliver to
the City copies of all Transferable Products requested by the City together with a bill of
sale therefor, provided that Developer makes no representation, warrantee or guarantee
regarding the completeness or accuracy of the Transferable Products, and Developer does
not covenant to convey the copyright or other ownership rights of third parties thereto.
Such Transferable Products shall thereupon be free of all claims or interests of Developer
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or any liens or encumbrances. Upon the Citys acquiring Developers rights to any or all of
the Transferable Products, the City shall be permitted to use, grant, license or otherwise
dispose of such Transferable Products to any person or entity for development of the
Project or any other purpose; provided, however, that Developer shall have no liability
whatsoever to the City or any transferee or title to the Transferable Products in connection
with the use of the Transferable Products.
Survival
. The provisions of this Section 14.3 shall survive the
termination of this Agreement in its entirety or as to any portion of the Property except that
it shall terminate upon the Recording of a Certificate of Compliance therefor.
Nonoccurrence of a Condition at Close of Escrow.
15.
The following provisions govern the failure of Close of Escrow for either the Healthcare
Property or the Retail Property for reason of non-occurrence of a Closing Condition or Default
by either Party. Notwithstanding any other provision of this Agreement,
Any Closing Condition for the benefit of either Party to be
satisfied at or prior to a Close of Escrow shall not, on its own, constitute a Default by either Party
hereunto absent a Default under a separate covenant, obligation, representation or warranty set
forth in this Agreement or any Other Agreement;
In the event of a termination of all or a portion of this Agreement
as provided in Section 15.1, 15.2 or 15.3, under no circumstances shall Developer have any right
or claim to, or against, the Project or Property or any portion thereof for which this Agreement is
terminated;
Ieither
the Healthcare Property or the Retail Property pursuant to this Agreement, the City shall have the
right to market and sell such Property to third parties without restriction; and
The termination of this Agreement or the provisions of this
Agreement applicable to the Retail Project, the Retail Property and/or the Improvements thereon
Retail Provisions
(the ) or the provisions of this Agreement applicable to the Healthcare
Healthcare
Project, the Healthcare
Provisions
ection 15 shall constitute a waiver of any rights or Claims either Party
may have against the other pursuant to this Agreement or against the Property or the
Improvements, or portion thereof to which the termination applies, but shall not terminate or
release any liability or obligations of either Party to comply with any obligations under this
Agreement pursuant to this Section 15 which remain in effect or which are expressly stated to
survive a termination of this Agreement.
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15.1Failure of a Condition to Retail Property Close of Escrow Absent a Default
.
Failure of a Condition to Retail Property Close of Escrow
Generally
.
If the Retail Property Close of Escrow does not occur on or
before 5:00 p.m. Pacific Time on the earlier of the Retail Property Closing Date or the Retail
Property Outside Closing Date, in either case, as the same may be extended, in either case
because of the failure to occur of a Closing Condition for the benefit of either Party for reasons
other than a Default by a Party, then the Party for whose benefit the failed Closing Condition was
intended may, by delivery of written notice to the other Party and to the Escrow Holder,
terminate this Agreement.
It is the intent of the Parties that even if (i) the Healthcare
Property Close of Escrow has not then occurred, (ii) the time period for close of escrow for the
Healthcare Property has not expired, and (iii) no Party is then in Default with respect to the
Healthcare Property Close of Escrow, then upon termination under Section 15.1.1(a) above, this
Agreement shall terminate in its entirety as to both the Retail Project and as to the Healthcare
Project.
In the event either Developer or the City is in Default as of the
Retail Property Closing Date, in the case of the Retail Property Close of Escrow, or as of the
Healthcare Property Closing Date, in the case of the Healthcare Property Close of Escrow the
Party in Default shall not have the right to terminate the Agreement pursuant to this Section 15.1.
Failure of a Condition to Retail Property Close of Escrow for
Litigation or Referendum
. In the event the Retail Property Close of Escrow is extended
for any of the reasons set forth in this Section 15.1.2 not caused by a Material Default by
either Party, then:
In the event a final non-appealable decision in any litigation
brought by a third party or approval of a referendum or initiative results in the inability of the
City to convey all or any portion of the Retail Property to Developer, or results in the inability of
Developer to perform its material obligations hereunder despite Developers commercially
reasonable efforts to do so, either Party shall have the right, upon thirty (30) calendar days prior
written notice to the other Party and the Escrow Holder, to terminate this Agreement.
In the event litigation, referendum, or initiative brought by a
third party remains pending on the Retail Property Outside Closing Date and (i) such ongoing
challenge prevents the City from conveying all or any portion of the Property to Developer, or
(ii) such ongoing challenge is the cause of Developers inability to perform its material
obligations hereunder despite Developers commercially reasonable efforts to do so, either Party
shall have the right, upon thirty (30) calendar days written notice to the other Party and the
Escrow Holder, to terminate this Agreement.
In the event that the circumstances creating the right of
termination in Sections 15.1.2(a)(i) or (ii) above has been cured during such thirty (30) calendar
day period, the right to terminate shall likewise be extinguished. In addition, if Developer
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provides the City with written notice that Developer will indemnify, defend and hold harmless
the City in any litigation or will challenge such referendum or initiative identified in
Section 15.1.2(a)(ii), then, the City shall not have the right to terminate this Agreement and the
applicable Outside Closing Date shall be extended for as long as the Developer continues such
defense or challenge.
Return of Purchase Price Deposit Prior to Retail Property
Close of Escrow
. Upon any termination of this Agreement or the Healthcare Provisions
pursuant to Section 15.1.1(a) or 15.1.2 prior to the Retail Property Close of Escrow and
provided that neither Party is then in Default under this Agreement, each Party shall pay
one-Escrow Holder
shall return the Purchase Price Deposit to Developer less any amounts due and owing to the
City with respect to City Transaction Expenses and for which the City Cost Deposit then
funded pursuant to Section 1.8 is insufficient; provided that in no event shall the City have
any obligation to return the Healthcare Property Option Payment, if then paid, the
Applicable ENA Deposit or the Non-Refundable ENA Deposit. The termination of the
obligations of the Parties with respect to the Retail Property Close of Escrow shall relieve
both parties of all of their respective liabilities and obligations with respect to this
Agreement except for those obligations and liabilities that this Agreement expressly
provides shall survive such termination.
15.2MATERIAL DEFAULT OF DEVELOPER RESULTS IN FAILURE OF
RETAIL PROPERTY CLOSE OF ESCROW
.
IF THE RETAIL PROPERTY CLOSE OF ESCROW DOES NOT TAKE
PLACE ON OR BEFORE 5:00 P.M., PACIFIC TIME, ON THE CLOSING DATE
ESTABLISHED BY THIS AGREEMENT FOR SUCH CLOSE OF ESCROW SOLELY AS A
RESULT OF A DEFAULT BY DEVELOPER (INCLUDING FAILURE TO DELIVER THE
DELIVERABLES REQUIRED PURSUANT TO SECTION 7.2.2(b) OR 7.3.2(b), AS
APPLICABLE OR TO DELIVER SUFFICIENT FUNDS TO CAUSE THE CLOSING TO
OCCUR IN A TIMELY MANNER, IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 7), THE PARTIES ACKNOWLEDGE AND AGREE BY INITIALING THIS
AGREEMENT IN THE SPACE PROVIDED BELOW THAT:
THE PURCHASE PRICE DEPOSIT PROVIDED FOR IN
SECTION 4.3.1 OF THIS AGREEMENT AND THE OTHER SUMS DESCRIBED IN THIS
PARAGRAPH BEAR A REASONABLE RELATIONSHIP TO THE DAMAGES WHICH
THE PARTIES ESTIMATE MAY BE SUFFERED BY THE CITY AS THE RESULT OF THE
DEVELOPERS DEFAULT UNDER THIS AGREEMENT THAT RESULTS IN THE
FAILURE OF THE RETAIL PROPERTY CLOSE OF ESCROW, WHICH DAMAGES
WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO QUANTIFY, THAT SUCH
DEPOSIT CONSTITUTES A REASONABLE ESTIMATE OF THE CITYS DAMAGES IN
SUCH EVENT, AND THAT THE REMEDY PROVIDED FOR IN THIS AGREEMENT IS
NOT A PENALTY OR FORFEITURE AND IS A REASONABLE LIMITATION ON
DEVELOPERS POTENTIAL LIABILITY AS A RESULT OF SUCH DEFAULT;
PROVIDED THAT NOTHING I THIS AGREEMENT SHALL PRECLUDE THE CITY FROM
RETAINING ALL REIMBURSEMENTS IT HAS PREVIOUSLY RECEIVED FROM
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DEVELOPER FOR THE CITY TRANSACTION EXPENSES, RETAINING THE
NONREFUNDABLE ENA DEPOSIT AND THE APPLICABLE ENA DEPOSIT AND
COLLECTING FROM DEVELOPER ANY ADDITIONAL AMOUNTS THEN DUE TO CITY
ON ACCOUNT OF DDA TRANSACTION EXPENSES INCURRED BY THE CITY TO THE
DATE OF TERMINATION OF THIS AGREEMENT AND THEREAFTER TO THE EXTENT
INCURRED TO ADDRESS MATTERS CAUSED BY SUCH TERMINATION, AND
DEVELOPER SHALL PAY THE FULL AMOUNT OF
ESCROW HOLDERS CHARGES.
DEVELOPER SHALL COMPLY WITH THE
REQUIREMENTS OF SECTION 14.3 AND SHALL INDEMNIFY THE CITY AS
PROVIDED IN SECTIONS 4.6.4(f) AND 5.5.
IF DEVELOPER FAILS TO CURE ITS MATERIAL
DEFAULT WITH RESPECT TO THE RETAIL PROPERTY CLOSE OF ESCROW WITHIN
TEN (10) BUSINESS DAYS AFTER THE CITY PROVIDES WRITTEN NOTICE OF SUCH
DEFAULT, THEN THE CITY SHALL HAVE THE RIGHT TO TERMINATE THIS
AGREEMENT AND THE ESCROW IN ITS ENTIRETY, IN EITHER CASE BY
DELIVERING WRITTEN NOTICE TO THE DEVELOPER AND TO ESCROW HOLDER,
WHEREUPON THE CITY SHALL BE RELEASED FROM ITS OBLIGATIONS
HEREUNDER, AND ESCROW HOLDER SHALL DISBURSE THE PURCHASE PRICE
DEPOSIT AND ALL ACCRUED INTEREST THEREON TO THE CITY, AS LIQUIDATED
DAMAGES, WHICH DAMAGES SHALL BE THE CITYS SOLE AND EXCLUSIVE
REMEDY HEREUNDER FOR SUCH DEFAULT, EXCEPT FOR THE RIGHTS AND
REMEDIES FOR A SEPARATE BREACH, IF ANY, OF THE CONFIDENTIALITY AND/OR
INDEMNIFICATION PROVISIONS SET FORTH IN SECTIONS 5.5 AND 18.24 OF THIS
AGREEMENT AND/OR THE PROVISIONS OF SECTION 14.3.
___________________ ___________________
Initials of City Initials of Developer
15.3FAILURE OF HEALTHCARE PROPERTY CLOSE OF ESCROW
.
IF THE RETAIL PROPERTY CLOSE OF ESCROW HAS TAKEN PLACE,
DEVELOPER HAS MADE THE FIRST OPTION PAYMENT AND THE HEALTHCARE
PROPERTY CLOSE OF ESCROW DOES NOT TAKE PLACE ON OR BEFORE 5:00 P.M.
PACIFIC TIME ON THE EXPIRATION OF THE HEALTHCARE PROPERTY OUTSIDE
CLOSING DATE FOR ANY REASON OTHER THAN A MATERIAL DEFAULT OF THE
CITY AS SET FORTH IN SECTION 15.4.1, THE PARTIES ACKNOWLEDGE AND AGREE
BY INITIALING THIS AGREEMENT IN THE SPACE PROVIDED BELOW THAT:
THE HEALTHCARE PROPERTY OPTION PAYMENT
PROVIDED FOR IN SECTION 4.3.3 OF THIS AGREEMENT SHALL BE FORFEITED TO
THE CITY AS A NON-REFUNDABLE OPTION PAYMENT WHICH SHALL BE THE
CITY'S SOLE COMPENSATION IN ALL EVENTS FOR A FAILURE OF THE
HEALTHCARE PROPERTY CLOSE OF ESCROW TO OCCUR;
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THE PARTIES ACKNOWLEDGE AND AGREE THAT
THE HEALTHCARE PROPERTY OPTION PAYMENT PROVIDED FOR IN SECTION 4.3.3
SHALL BE THE EXCLUSIVE REMEDY TO SELLER FOR THE DAMAGES SUFFERED
BY THE CITY AS THE RESULT OF THE FAILURE OF THE HEALTHCARE PROPERTY
CLOSE OF ESCROW; PROVIDED THAT NOTHING HEREIN SHALL PRECLUDE THE
CITY FROM RETAINING ALL REIMBURSEMENTS IT HAS PREVIOUSLY RECEIVED
FROM DEVELOPER FOR THE CITY TRANSACTION EXPENSES, RETAINING THE
NONREFUNDABLE ENA DEPOSIT AND THE APPLICABLE ENA DEPOSIT AND
COLLECTING FROM DEVELOPER ANY ADDITIONAL AMOUNTS THEN DUE TO CITY
ON ACCOUNT OF DDA TRANSACTION EXPENSES INCURRED BY THE CITY TO THE
HEALTHCARE PROPERTY OUTSIDE CLOSING DATE; AND
DEVELOPER SHALL PAY THE FULL AMOUNT OF
ESCROW HOLDERS CHARGES.
DEVELOPER SHALL COMPLY WITH THE
REQUIREMENTS OF SECTION 14.3 AND SHALL INDEMNIFY THE CITY AS
PROVIDED IN SECTIONS 4.6.4(f) AND 5.5.
THE HEALTHCARE PROVISIONS SHALL
TERMINATE WHEREUPON THE CITY SHALL BE RELEASED FROM ITS OBLIGATION
HEREUNDER TO SELL THE HEALTHCARE PROPERTY TO THE DEVELOPER, AND
THEREAFTER THE HEALTHCARE PROPERTY SHALL NOT BE ENCUMBERED BY
THIS AGREEMENT, AND ESCROW HOLDER SHALL DISBURSE THE HEALTHCARE
PROPERTY OPTION PAYMENT AND ALL ACCRUED INTEREST THEREON TO THE
CITY, AS PAYMENT FOR THE OPTION GRANTED BY THE CITY TO DEVELOPER
WHICH SHALL BE THE CITYS SOLE AND EXCLUSIVE REMEDY HEREUNDER FOR
THE FAILURE OF THE HEALTHCARE PROPERTY CLOSE OF ESCROW TO OCCUR
EXCEPT FOR THE CITY RIGHTS TO REMEDIES FOR A SEPARATE BREACH, IF ANY,
OF THE CONFIDENTIALITY AND/OR INDEMNIFICATION PROVISIONS SET FORTH
IN SECTIONS 4.6.4(f), 5.5 AND 18.24 OF THIS AGREEMENT AND/OR THE PROVISIONS
OF SECTION 14.3.
NOTHING CONTAINED IN THIS SECTION 15.3
SHALL RELIEVE DEVELOPER OF ITS OBLIGATION TO PERFORM THE MINIMUM
HORIZONTAL IMPROVEMENTS, PROVIDED THAT THE MINIMUM HORIZONTAL
IMPROVEMENTS ON THE HEALTHCARE PROPERTY SHALL BE LIMITED TO THE
HEALTHCARE ROUGH GRADING AND THE HEALTHCARE PERIMETER
LANDSCAPING.
___________________ ___________________
Initials of City Initials of Developer
15.4Failure to Close; Default of City
.
If either Close of Escrow does not occur on or before 5:00 p.m.,
Pacific Time, on or before the applicable Closing Date as the same may be extended, solely
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as a result of a Default by the City in the performance of its obligations under this
Agreement with respect to such Close of Escrow, then, so long as Developer is not in
Default, Developer shall have the right, by providing notice to the City, within twenty (20)
Business Days after the Closing Date, of its election to do so, either: (a) to purchase the
relevant Property pursuant to this Agreement notwithstanding such Default by the City,
without waiving Developers rights in connection with such Default; (b) with respect to the
Retail Property Close of Escrow only, to terminate this Agreement and cancel the Escrow,
in which case the provisions of Section 15.4.3 shall apply; (c) with respect to the
Healthcare Property Close of Escrow only, to terminate its obligation to acquire the
Property to be conveyed at the Healthcare Property Close of Escrow and the Healthcare
Provisions; or (d) with respect to either Close of Escrow, to elect to extend the applicable
Closing Date for a period of sixty (60) calendar days in order to provide the City with time
to cure such Default (and in such event the City shall use its reasonable efforts to cure the
same during such extension period). Notwithstanding the foregoing, in the event that all
applicable City Closing Conditions have been waived by the City in writing or satisfied
(except with respect to any applicable City Closing Condition which is not satisfied as a
result of a Default by the City), and the City fails to deliver any of the materials described
in Section 7.2.1(a) or 7.3.1(a) or otherwise fails to proceed with either Close of Escrow in
breach of this Agreement within ten (10) Business Days after Developer has delivered into
Escrow a written notice that Developer is prepared to consummate the transaction and
proceed to Close of Escrow, Developer shall have the right to bring an action in equity
against the City or subsequent owners, lessors or sublessors of the Property for specific
performance of this Agreement, including Section 7, provided, however, that except as set
forth in Section 18.5, Developer specifically waives any right to receive any monetary
In the event the City receives timely notice of Developers
election pursuant to this Section 15.4 to purchase (a) the Retail Property or (b) pursuant to
Close of Escrow to take place concurrently with or following the Retail Property Close of
Escrow, the Healthcare Property, then as applicable, notwithstanding the Default by the
City, Developer shall (a) with respect to the Retail Property Close of Escrow, deliver the
Retail Property Closing Payment and all other deliverables required by this Agreement and
(b) with respect to the Healthcare Property Close of Escrow, deliver the Healthcare
Property Closing Payment and all other deliverables required by this Agreement into
Escrow no later than ten (10) Business Days after the Citys receipt of said notice and,
provided that the City Retail Property Closing Conditions or the City Healthcare Property
Closing Conditions, as applicable, have been satisfied, the Close of Escrow for such
Property shall occur on that date which is eleven (11) Business Days after the Citys receipt
of such notice and Developer shall be deemed to have waived the City Default as of such
Close of Escrow.
In the event the City is in Material Default of this Agreement and
receives timely notice from Developer pursuant to this Section 15.4 of Developers election
to terminate this Agreement with respect to the Retail Property, then s election
to terminate this Agreement with respect to the Retail Property shall terminate the entirety
of this Agreement, including the Retail Provisions and the Healthcare Provisions, the City
shall pay the full amount of Escrow Holders charges, and Developer shall be entitled to a
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full refund of its Purchase Price Deposit. In the event the City is in Material Default of this
Agreement with respect to the Healthcare Property Close of Escrow and receives timely
the Healthcare
Property pursuant to this Section 15.4: (a) the provisions of this Agreement applicable to
the Healthcare Property shall terminate and the provisions of this Agreement related to the
Retail Property shall remain in full force and effect, (b) City shall pay the full amount of
Escrow Holders charges, and (c) Developer shall be entitled to a full refund of the
Healthcare Property Option Payment previously paid to the City, if any, which refund shall
Healthcare
Property Close of Escrow and, in all cases, Developer shall not be entitled to pursue an
action against the City for damages or other remedies as a result of the Default by the City
except as expressly set forth in Section 18.5.3.
In the event Developer has elected to purchase the Retail
Property or the Healthcare Property pursuant to this Section 15, but fails to deliver the
Retail Property Closing Payment or the Healthcare Property Closing Payment, as
applicable, into Escrow and to satisfy the other Closing Conditions with respect to such
Close of Escrow for the benefit of the City no later than ten (10) Business Days after the
receipt of said notice, then the City shall have the right: (a) if the Retail Property
Close of Escrow shall not then have occurred, to terminate this Agreement by providing
written notice of its election to terminate to Developer, such termination to be in
accordance with the provisions of Section 15.4.3. or (b) if the Retail Property Close of
Escrow shall have occurred, to terminate the portions of this Agreement applicable to the
Healthcare Property (i.e., the Healthcare Provisions), by providing written notice of its
election to terminate to Developer, such termination to be in accordance with the
provisions of Section 15.4.3.
The termination of this Agreement pursuant to this Section 15.4
shall not terminate or release any liability or obligations of Developer to indemnify the City
as provided in Section 4.6.4(f), 5.5 or to comply with Section 14.3. In the event of a
termination as provided in Section 15.4.3 or 15.4.4., under no circumstances shall
Developer have any right or claim to, or against, the Property or any portion thereof. The
termination of this Agreement pursuant to this Section 15.4 shall constitute a waiver of any
and all rights and Claims either Party may have against the other, except as expressly
provided above.
Remedies for Defaults After the Close of Escrow.
16.
16.1General Remedies
.
In the event Developer or any Person to which it has Transferred an interest in the
Property or any portion thereof or Improvement thereon is in Material Default with respect to
any obligation of Developer under this Agreement following the Close of Escrow for the
Property so conveyed, and prior to the issuance of the Certificate of Compliance with respect to
such Property, the City, as its sole and exclusive remedies, may do any one or more of the
following with respect to the Parcel in question; provided, however, subject to the terms of
Sections 2.2.3(b)(iv) and (v) and Section 14.2.6, neither Developer and the Retail Property on the
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one hand, nor Healthcare Developer and the Healthcare Property on the other hand, shall have
any liability or obligation in connection with a Default relating to the other Party or Property (in
other words, each such Pobligations shall be independent, and the City's remedies shall
relate only to the Person or the Property that is in Material Default). The City hereby waives all
other rights and remedies in connection with such Material Default and acknowledges that the
remedies set forth in this Section 16 are sufficient to protect the Citys interests under this
Agreement:
The City may record a lien against the respective Retail Property
or Healthcare Property as applicable in accordance with Section 16.2.
The City may sue for damages it may have incurred.
The City may seek to specifically enforce the obligations of
Developer or the Healthcare Developer in connection with the Parcel owned by each respective
party.
Except as otherwise set forth in this Agreement, the City may
exercise its Right of Repurchase pursuant to Section 16.3.
Except as otherwise set forth in this Agreement, in the event of a
Reversion Action Trigger only, the City may exercise its Right of Reversion pursuant to
Section 16.4.
pursuant to Section 16.3 and 16.4, the City agrees to provide Developer with such
documentation, including recordable evidence of such termination, as Developer reasonably
requires to reflect that the City no longer has such rights with respect to the Retail Project.
16.2Lien Rights
.
Developer, on behalf of itself, each Successor Owner and each and every Person claiming
by, through or under Developer or any Successor Owner for the benefit of the City and its
successors and assigns hereby agrees that the delinquent amount of any payments due hereunder,
together with any late charges or interest due on any such delinquent payment, reasonable
attorneys fees, experts fees and consultants fees and collection costs related to such delinquent
payment shall, to the greatest extent permitted by applicable law, be a lien and charge upon the
Property and shall be a continuing lien upon the Property in favor of the City effective upon
City Lien
paramount to the lien and charge of any Mortgage upon the Property subject to being
subordinated to a Permitted Mortgage in accordance with the terms of Section 17.
16.3Right of Repurchase
.
Right of
For the period described in Section 1
Repurchase
e to time, at any time after the date that Developer became in Material
Reacquired Property
Default until such Material Default is cured to purchase
(a) all or any portion of the Retail Property and/or the Healthcare Property affected by the
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Material Default, (b) any Improvements thereon, (c) all applicable Entitlements and other
development rights, consents, authorizations, variances, waivers, licenses, permits, certificates
and approvals from any governmental or quasi-governmental authority, and (d) all other
appurtenant rights applicable to the respective Property, including the interest in any ground
leases encumbering the respective Property. The Reacquired Property designated by the City
shall be acquired by the City for the Repurchase Price less the amount of liens or Mortgages
against the Reacquired Property and otherwise in accordance with this Section 16.3. The City
may exercise its Right of Repurchase by delivering written notice to Developer stating that the
City is exercising its Right of Repurchase and specifying the Reacquired Property; provided that
such notice is delivered at least ninety (90) calendar days prior to the date on which the City
requires Developer to convey the Reacquired Property to the City pursuant to the Right of
Repurchase and otherwise in accordance with this Section 16.3. The Right of Repurchase shall
be a lien and encumbrance on the Property that shall be paramount to (a) the lien and charge of
any Mortgage upon the Property, except that with respect to a first priority lien that is a
Permitted Mortgage on the Other Healthcare Parcels with a Permitted Mortgagee, the
implementation of the Right of Repurchase shall be subject to the terms of the Healthcare
Subordination Agreement, and (b)
the Property. The Reacquired Property shall be delivered to the City at close of escrow free and
clear of all liens and Mortgages and subject only to the Permitted Exceptions at the time of Close
of Escrow.
Termination of this Agreement
. In the event the City exercises
its Right of Repurchase as to any Reacquired Property as provided in this Section 16.3, this
Agreement shall terminate with respect to the Reacquired Property as of the date of the
quitclaim deed conveying to the City title to the Reacquired Property (and the Healthcare
Property Option Payment if then held by Escrow shall be paid to the City); provided that
the provisions of this Section 16.3 shall survive the termination of the Agreement.
Exercise of Right of Repurchase
. The City may exercise its
Right of Repurchase by delivering written notice to Developer stating that the City is
exercising its Right of Repurchase and specifying the Reacquired Property; provided that
such notice is delivered at least ninety (90) calendar days prior to the date on which the
City requires Developer to convey the Property to the City pursuant to the Right of
Repurchase and otherwise in accordance with this Section 16.3. The Reacquired Property
shall be delivered to the City at close of escrow free and clear of all liens and Mortgages
and subject only to (x) the Permitted Exceptions at the time of the applicable original Close
of Escrow for such portion of the Propertyand (y) all other matters created in connection
with the Entitlements and the development of the Project pursuant to this Agreement.
Process
. If the City is entitled to and elects to repurchase any
designated Reacquired Property, the Parties shall: (a) within five (5) Business Days after
the date of the Citys notice of election to exercise the Right of Repurchase, open an
escrow with an escrow agent designated by the City for the purchase and sale, and shall
execute an escrow agreement that shall provide that Developer shall pay all costs of the
escrow and shall include such usual and ordinary terms as are reasonably required by the
escrow agent and by the transaction; (b) no later than five (5) Business Days after the
opening of escrow, Developer shall place into the escrow appropriate quitclaim deeds and
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bill of sale conveying fee title to the Reacquired Property; and (c) no later than eighty-five
(85) calendar days after the opening of the escrow, the City shall deposit into the escrow
and amount equal to (i) the Repurchase Price minus (ii) the Lien Release Amounts, if any.
The escrow shall close, and title to the Reacquired Property shall be conveyed to the City,
no later than five (5) Business Days after the City has deposited into escrow the
Repurchase Price. Concurrently with the close of escrow, Developer shall comply with its
obligations under Section 14.3. Nothing herein shall restrict the right of the City to
terminate its exercise of the Repurchase Right at any time prior to the close of escrow. The
Property acquired by the City shall be free and clear of all liens and Mortgages, including
Permitted Mortgages, and subject only to the Permitted Exceptions at the time of
conveyance to the City. If and to the extent that the Repurchase Price is less than Permitted
Mortgage Unpaid Balance plus the aggregate amounts that may then be due under any
other Permitted Mortgages (and any other Mortgages that may then exist), all Mortgagees
shall nonetheless execute reconveyances of deeds of trusts, releases of mortgages, and any
other documents requested by the City to remove the liens of all Mortgages from title to the
Property. The Parties agree that the amount of reduction in the Repurchase Price as
compared with the Fair Market Value of the Property is justified in that it bears a
reasonable relationship to the damages which the Parties estimate may be suffered by the
under this Agreement, which damages would be impractical or extremely difficult to
quantify, and that the remedy provided for herein is not a penalty or forfeiture, and is a
default.
Termination of Right of Repurchase
. The Right of
Repurchase shall remain in effect from the Close of Escrow with respect to a Parcel until
(a) as to the Healthcare Parcel, the Recording by the City of a Certificate of Compliance
with respect thereto and (b) as to the Retail Parcel, the satisfaction of the Conditions
Precedent set forth in Section 9.3(a), (c), (d), (e), (f), (h) and (i) with respect to the
Minimum Retail Improvements. In the event that Developer or any Person on behalf of
Developer either (a) cures the Material Default which is the basis for the Citys exercise of
its Right of Repurchase, but excluding any Transfer in violation of this Agreement, or
(b) Completes the Project prior to the closing of escrow on such Right of Repurchase, such
Right of Repurchase shall cease and terminate with respect to such Material Default only.
Release of Liability
. In the event the City exercises its Right of
Repurchase, such purchase shall terminate or release the obligations of Developer with
respect to the Reacquired Property except that Developer shall not be released from its
obligations pursuant to Section 4.5.2(f), to return any written Due Diligence Information to
the City as provided in Section 14.3 and to indemnify, defend and hold harmless the City
Indemnified Parties as provided in Sections 4.6.4(f) and Section 10 for matters arising or
related to the period of time prior to the conveyance of the Reacquired Property to the City
and with respect to any Developer or Healthcare Developer during the Additional Liability
Period; and to indemnify, defend and hold harmless the City Indemnified Parties as
provided in Section 5.5 as to a Parcel for matters arising or related to the period prior to the
Close of Escrow for such Parcel, and such obligations shall survive the close of escrow and
shall not be merged into the quitclaim deed. Following suchClose of Escrow, under no
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circumstances shall Developer have any right or claim to, or against, the Reacquired
Property. Notwithstanding the purchase of the Reacquired Property by the City as
provided in this Section 16.3, this Agreement shall remain in full force and effect with
respect to the portions of the Property and the Project not purchased by the City.
Rights of Third Parties
. The Right of Repurchase shall be a
lien and encumbrance on the Property that shall be paramount to the lien and charge of
(a) any Mortgage upon the Parcels or Improvements, except that with respect to a first
priority lien that is a Permitted Mortgage, the implementation of the Right of Repurchase
shall be subject to the terms of the Healthcare Subordination Agreement and (b) any
The Right of Repurchase shall not defeat or render invalid or limit any rights or interests
provided in easements, covenants, conditions or restrictions in favor of third parties (i.e.,
who are not Developer, Healthcare Developer, Developer Affiliates or HCD Affiliates)
granted pursuant to Transfers approved by the City or constituting Permitted Transfers and
Recorded with respect to the Reacquired Property repurchased hereunder.
16.4The Right of Reversion
.
Following conveyance of any portion of the Property to
Developer by the City and notwithstanding that the Reacquired Property may be
encumbered by one or more Mortgages or Permitted Mortgages, in the event of the
occurrence of any Reversion Action Trigger (defined in Section 16.4.1), and in addition to
its other rights or remedies as a result of the occurrence of any such Reversion Action
Trigger, the City shall have the right on the terms and subject to the conditions set forth in
this Section 16.4 to re-enter and take possession of the applicable Reacquired Property or
Right of Reversion
any portion thereof
accordance with the terms of this Section 16.4. Any revesting of the Reacquired Property
by the City whether based on voluntary action of Developer or otherwise after notice by the
Reversion
City of its intent to exercise the Right of Reversion is referred to herein as a
Event
after the occurrence of any of any one or more of the Reversion Action Triggers only with
respect to the respective Retail Property or Healthcare Property that is the subject of the
Reversion Action Trigger; provided that the City has complied with the conditions to such
reversion set forth in Section 16.4.2. The Right of Reversion shall be a lien and
encumbrance on the Property that shall be paramount to (a) the lien and charge of any
Mortgage upon the Property, except that with respect to a first priority lien that is a
Permitted Mortgage on the Other Healthcare Parcels with a Permitted Mortgagee, the
implementation of the Right of Reversion shall be subject to the terms of the Healthcare
Subordination Agreement, and (b)
attach to the Property.
Certain Defaults Triggering the Right of Reversion
. The
Right of Reversion shall remain in effect from the Close of Escrow with respect to the
Healthcare Parcel, until the Recording of a Certificate of Compliance for the Healthcare
Parcel and with respect to the Retail Parcel, until Completion of the Minimum Retail
Vertical Improvements with respect to the Retail Parcel and thereafter shall not apply,
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provided that (a) the City shall not revest the Retail Property upon occurrence of a
Reversion Action Trigger solely
right to revest is created by a Reversion Action Trigger with respect to the Minimum
Healthcare Improvements, the Healthcare Transferor Obligations or the act or failure to act
by the Healthcare Property Transferor with respect thereto and (b) the City shall not revest
the any portion of the Healthcare Property upon occurrence of a Reversion Action Trigger
solely with respect to the Retail Property. The City may exercise the Right of Reversion if
it elects to do so with respect to only the Parcel affected by the Material Default and any
Improvements thereon and all applicable Entitlements and other development rights,
consents, authorizations, variances, waivers, licenses, permits, certificates and approvals
from any governmental or quasi-governmental authority, and all other appurtenant rights
Reversion Action
appli
Trigger
Reversion Action Trigger Date)
.
Developer fails to commence construction of the Minimum
Horizontal Improvements within six (6) months after the Construction Period Commencement
Date for the Retail Parcel, as such date may be extended for Force Majeure Delay;
Healthcare Developer fails to commence construction of the
Minimum Healthcare Vertical Improvements within twelve (12) months after the Construction
Period Commencement Date for the Healthcare Parcel, as such date may be extended for Force
Majeure Delay;
Developer fails to commence construction of the Minimum
Retail Vertical Improvements within eighteen (18) months after the Construction Period
Commencement Date for the Retail Parcel, as such dates may be extended for Force Majeure
Delay;
Developer or Healthcare Developer, as to their respective
Parcels, fails to Complete construction of the Minimum Vertical Improvements within thirty-six
(36) months after the Construction Period Commencement Date applicable to such Parcel as
such date may be extended for Force Majeure Delay; provided that such Completion date shall
not under any circumstances be later than the date that is forty eight (48) months after the Close
of Escrow for such Parcel (which date shall not be extended for Force Majeure Delay);
Developer or Healthcare Developer with respect to their
respective Parcels commits waste on the Property and such becomes a Material Default in
accordance with the notice and cure provisions of Section 14.2, subject to extension for Force
Majeure Delay;
Developer or Healthcare Developer with respect to their
respective Parcels abandons or substantially suspends (except for suspensions resulting from
Force Majeure Delay) construction of the Project for a total period of one (1) year, and such
becomes a Material Default in accordance with the notice and cure provisions of Section 14.2.
Nothing in this Section 16.4.1(f) shall extend the terms of Section 16.4.1(a), (b) or (c) above;
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The occurrence of a Developer Insolvency Event; and
A Material Default arises because of a voluntary or involuntary
Transfer or Transfer of Control.
Conditions to Exercise of the Right of Reversion
. The City
shall be entitled to exercise the Right of Reversion at any time on or after the applicable
Reversion Action Trigger Date; provided that (a) the City has provided notice to Developer
or Healthcare Developer as applicable that the City elects to exercise its Right of Reversion
and such notice states the date for the Reversion Event and (b) the Reversion Event shall
not take place until the earlier of (i) the date that is thirty (30) calendar days after
Developer has had the opportunity to address the City Council at a public meeting
regarding the Reversion Action Trigger or (b) if there is a Permitted Mortgage
encumbering the Parcel, the date that is one (1) year after the date of such notice of
exercise. In the event that, prior to the Reversion Event, Developer and Permitted
Mortgagee with respect to the Other Healthcare Parcels or any Person on behalf of
Developer either (x) cures the Reversion Action Trigger which is the basis for the Citys
exercise of its Right of Reversion or (y) Completes the Project prior to the date of the
Reversion Event, such Right of Reversion shall cease and terminate with respect to such
Reversion Action Trigger only.
Exercise of Right of Reversion
. If the City exercises its Right
of Reversion in accordance with the provisions of this Agreement, Developer shall use all
reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done,
all things necessary or desirable under applicable law to consummate the revesting of the
Reacquired Property in the name of the City, including the execution and delivery of such
other documents, certificates, agreements, deeds and other writings and the taking of such
other actions as may be reasonably necessary to consummate such revesting.
Sale of Reacquired Property
. Upon the revesting in the City of
title to the Reacquired Property, the City shall use reasonable efforts to resell the
Reacquired Property as soon and in such manner as the City shall find feasible, in
accordance with applicable state law, if any, and consistent with the objectives of this
Agreement, to a qualified and responsible party or parties (as determined by the City in its
sole discretion) who will assume the obligation of making or completing the Minimum
Improvements and of using reasonable commercial efforts to commence and thereafter to
Complete, the additional Retail Vertical Improvements. Upon such resale of the
Reacquired Property, or any part thereof, the proceeds thereof shall be applied in the
following order and amounts, provided that the City shall have no liability to Developer or
to any Permitted Mortgagee or third party to the extent the balance is insufficient to pay the
following amounts:
Delinquencies. First, to repayment in full of all delinquent tax
and delinquent assessment liens with respect to the portion of the Reacquired Property sold;
Permitted Mortgage Balances. Second, if there is a Permitted
Mortgage in favor of a Permitted Mortgage with respect to all or any portion of the Healthcare
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Parcel only and the Reacquired Property is comprised of all or any portion of the Healthcare
Parcel, to repayment in full of the outstanding balance of the Permitted Mortgages and all other
sums then due and owing thereunder;
Reimbursement to the City. Third, to reimburse the City on its
own behalf for all costs and expenses incurred by the City, in connection with the recapture,
management and resale of the Reacquired Property, or any part thereof, including: a pro-rata
share of the salaries of personnel engaged in such action (based on the amount of time spent by
such personnel on such matters relating to the Reacquired Property as compared to the aggregate
amount of time worked by such personnel); all taxes, assessments and utility charges with
respect to the Reacquired Property; any payments made or necessary to be made to discharge or
prevent from attaching or being made any subsequent encumbrances or liens due to obligations,
Defaults or acts of Developer or any Successor Owner or each and every Person claiming by,
through or under Developer or any Successor Owner; any expenditures made or obligations
incurred with respect to the making or completion of the agreed improvements or any part
thereof on the Reacquired Property; all costs of sale and marketing, including reasonable
brokers fees and costs incurred in the marketing and sale of the Reacquired Property; all legal
fees and expenses; all escrow and title fees and costs; all survey and due diligence fees and costs;
all the Lien Release Amounts, if any, paid by the City to third parties; and any amounts
otherwise owing to the City or any third party by Developer and/or any Successor Owner,
including any City Liens;
Reimbursement to Developer. Fourth, to reimburse Developer
up to the amount equal to the Repurchase Price attributable to the Reacquired Property less all
amounts paid pursuant to Section 16.4.4(a), (b) and (c); and
Balance Retained by the City. Any balance remaining after such
reimbursements shall be retained by the City as its property.
Release of Liability
. In the event the City exercises its Right of
Reversion, such reversion shall terminate and release Developer, or Healthcare Developer,
as applicable, from all liability and obligations of Developer or, as applicable, Healthcare
Developer, under this Agreement with respect to the Reacquired Property, but shall not
constitute a waiver or termination of the release provided for the benefit of the City
pursuant to Section 4.5.2(f), the obligation to return any written Due Diligence Information
to the City as provided in Section 14.3 and to indemnify the City as provided in
Sections 4.6.4(f), 5.5 and 10 for matters relating to or arising prior to the conveyance of the
Reacquired Property to the City, and such liability and obligations shall survive the close of
escrow and shall not be merged into the quitclaim deed, it being acknowledged and agreed
that all other obligations under this Agreement shall be released and terminated as of the
date on which the Property or the applicable portion thereof is conveyed to the City.
Following suchClose of Escrow, under no circumstances shall Developer have any right or
claim to, or against, the Reacquired Property. Notwithstanding the purchase of the
Reacquired Property by the City as provided in this Section 16.4, this Agreement shall
remain in full force and effect with respect to the portions of the Property not purchased by
the City.
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Rights of Third Parties
. The Right of Reversion shall be a lien
and encumbrance on the Property that shall be paramount to the lien and charge of (a) any
and all Mortgages, including Permitted Mortgages, upon the Parcels or Improvements,
provided, however, that with respect to a first priority lien that is a Permitted Mortgage on
the Other Healthcare Parcels or Improvements thereon, made by a Permitted Mortgagee,
the implementation of the Right of Reversion shall be subject to the terms of the Healthcare
Subordination Agreement and (b)
Parcels or the Improvements thereon. The Right of Reversion shall not defeat or render
invalid or limit any rights or interests provided in easements, covenants, conditions or
restrictions in favor of third parties (i.e., Persons other than Developer, Healthcare
Developer, Developer Affiliates or HCD Affiliates) granted pursuant to Transfers approved
by the City or constituting Permitted Transfers and Recorded on the portion of the Property
for which the City exercises its rights under this Section 16.4.
Continuation of Agreement
. This Agreement shall remain in
full force and effect with respect to portions of the Property not revested in the City, but the
termination of this Agreement shall be effective as of the date title to any portion of the
Property and/or any Improvements thereon are revested in the City.
Termination of Right of Reversion
. The Right of Reversion
shall not apply to the Healthcare Parcel after Recording by the City of a Certificate of
Compliance with respect thereto. The Right of Reversion shall not apply to the Retail
Parcel after satisfaction of the Conditions Precedent set forth in Section 9.3(a), (c), (d), (e),
(f), (h) and (i) with respect to the Minimum Retail Improvements.
16.5Cooperation of Developer
.
If the City exercises its Right of Repurchase or Right of Reversion in accordance with the
provisions of this Agreement, Developer shall use all reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or desirable under
applicable law to consummate the repurchase or revesting of the Reacquired Property, as the
case may be, including the execution and delivery of such other documents, certificates,
agreements, deeds and other writings and the taking of such other actions as may be reasonably
necessary to consummate such transactions.
Mortgages and Mortgagee Protection.
17.
17.1Transfers to Permitted Mortgagee
.
Generally
.
Any Mortgage or other encumbrance of the Parcel in violation of
this Section 17.1 shall be a prohibited Transfer and a Material Default by Developer.
Neither this Agreement, nor the Development Parcels (nor any
portion thereof) nor the Improvements thereon, shall be cross-collateralized with any other
contract or real or personal property, nor shall this Agreement or the Development Parcels (or
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any portion thereof) or the Improvements thereon serve as additional security for any other loan
by a Mortgagee, nor any other debt of Developer.
No Permitted Mortgage otherwise permitted by this Agreement
may be cross- collateralized or cross defaulted with any other Mortgage.
Developer shall not transfer the Development Parcels or the
Property or any portion thereof to a third party for purposes of a sale-leaseback transaction.
Prior to the Transfer Approval End Date applicable thereto,
Developer shall not encumber the Retail Parcel or the Medical Office Parcel or any portions
thereof or any Improvements thereon with any Mortgage without the prior written consent of the
City in its sole discretion. If City does permit a Mortgage, such Mortgage shall be a Permitted
Mortgage made by a Permitted Mortgagee and in accordance with each and every requirement of
this Agreement with respect to Mortgages, including this Section 17
Prior to the Recording of a Certificate of Compliance with
respect to the Healthcare Parcel, neither the Healthcare Developer nor the Developer shall
encumber the Healthcare Parcel or an portion thereof or any Improvements thereon with any
Mortgage, unless such Mortgage is a Permitted Mortgage made by a Permitted Mortgagee and in
accordance with each and every requirement of this Section 17.
Unless and until the City agrees (in its sole discretion) to permit
a Permitted Mortgage on the Retail Parcels, the provisions of Sections 17.2 through 17.12 shall
apply exclusively with respect to the Healthcare Developer and the Healthcare Parcel.
Permitted Mortgages for Healthcare Vertical Improvements
.
Prior to the Recording of a Certificate of Compliance with respect to the Minimum
Healthcare Vertical Improvements on the Healthcare Parcel, the following shall apply to
every Mortgage with respect to the Healthcare Parcel, the Improvements thereon or any
portion thereof:
A Mortgage shall be a Permitted Mortgage under this Agreement
and a Mortgagee shall be a Permitted Mortgagee entitled to a Transfer under this Agreement if:
(a) such Mortgagee is a Qualified Institutional Lender or is the lender identified in the Healthcare
Financing Plan approved by the City in Section 4.6.4; (b) the terms of its Mortgage and all of the
loan documents executed in connection with the loan are consistent with the Healthcare
Financing Plan approved by the City in Section 4.6.4 and the requirements of Section 8.5 of this
Agreement; (c) complete copies of all of the loan documents have been reviewed by the City and
the City has determined that such loan documents comply with the requirement of this
Section 17.1 and, if applicable, Section 17.3; (d) the loan proceeds will be used to finance the
construction of the Healthcare Vertical Improvements on the Other Healthcare Parcels and for
associated costs and expenses (including financing costs) and for no other purpose (and such
purposes shall specifically exclude land acquisition costs); and (e) the Mortgage does not
encumber the Retail Parcel, Medical Office Parcel or any portion thereof. The loan documents
shall include a Healthcare Subordination Agreement in substantially the form and substance of
the subordination agreement attached as Attachment 23 or otherwise acceptable to the City in its
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sole discretion, which shall be Recorded at the Healthcare Property Close of Escrow,
immediately after the Permitted Mortgage is Recorded.
At least fifteen (15) Business Days prior to entering into any
Mortgage, Developer shall deliver to the City drafts (and at least five (5) Business Days prior to
documents in substantially the form and substance of the final forms of such documents, red-
lined to show changes from the drafts reviewed by the City; and shall deliver final forms or
indicate no change in the previously submitted forms prior to the execution thereof), including
all documents and guaranties securing the interest of the Mortgagee, and such other information
determinations described in this Section 17.1.2. The City shall determine whether the loan
documents for a proposed Permitted Mortgage comply with the requirements of this Agreement,
including:
Whether the proposed Mortgagee is a Qualified
Institutional Lender or, if the proposed Mortgagee is not a Qualified Institutional Lender,
whether the proposed Mortgagee was identified in the Financing Plan approved by the City.
Whether any unsecured mezzanine financing proposed by
Developer complies with the terms of this Agreement, including the restrictions on Transfers and
Transfers of Control.
17.2Acknowledgment by City of Permitted Mortgagee
.
and information required under Section 17.1.2: (a) the City shall acknowledge receipt of the
same and receipt of the address of any Mortgagee (or proposed Mortgagee), (b) the City shall
confirm in writing to Developer whether the proposed Mortgagee is a Permitted Mortgagee, or
explain why the City considers the proposed Mortgagee not to be a Permitted Mortgagee, and
(c) the City shall confirm in writing to Developer whether it has determined if the loan
documents comply with the requirements of Sections 17.1 and 17.3 or explain why the City
considers the loan documents not to comply.
17.3Change in Loan Documents
.
Following approval by the City of loan documents and the Healthcare Subordination
Agreement pursuant to Section 17.1.2, but prior to closing of the Construction Loan evidenced
by such loan documents, Developer shall not modify or agree to modify those loan documents
without the prior written approval of the City in its sole discretion.
17.4Initial Notice
.
Developer or any Permitted Mortgagee shall provide the City notice, in accordance with
the provisions of Section 18.6, of the name and address of such Mortgagee, accompanied by a
copy of the executed loan documents for such Mortgage but the failure to provide such notice
shall not affect the protections provided for under this Agreement to any Permitted Mortgagee.
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17.5Foreclosure Transfers
.
If a Permitted Mortgagee acquires all or any portion of the Healthcare Property in a
Foreclosure, the provisions of Section 17.6 and the Healthcare Subordination Agreement shall
govern such acquisition and the rights and obligations of such Permitted Mortgagee. With
respect to a Transfer to any Transferee which acquires title to the Healthcare Property or any
portion thereof at a Foreclosure sale or from a Permitted Mortgagee following a Foreclosure and
which Transferee is not a Permitted Mortgagee, the provisions of Section 2.2.3 shall apply;
however, the City shall not withhold its consent to such Transfer so long as the Transferee shall
meet each of the following criteria: (a) have a reputation as a quality builder of healthcare
developments of the scope and constructed of the quality described by this Agreement; (b) be
licensed to do business in the State of California; (c) have a reputation for fair and honest
business dealings with persons or entities generally; (d) have a sufficient net worth to undertake
the obligations to be performed by Developer;(e) shall propose a use that is consistent with this
Agreement and not a Prohibited Use and (f) if an End User, shall have successfully constructed,
or if not an End User, shall have successfully constructed, marketed and leased healthcare
facilities of similar size and quality to those required to be constructed pursuant to the Approved
Plans. All of the provisions contained in this Agreement shall be binding upon and benefit the
Transferee which acquires title to all or any portion of the Property, and provided that such
Person assumes the obligations of Developer under this Agreement in accordance with
Section 2.2.3, the City shall recognize such Transferee as Developer under this Agreement.
17.6Mortgagee Protections
.
Each Permitted Mortgagee of a then-existing Permitted Mortgage that is a City approved
Construction Loan affecting a portion of the Property which has provided notice to the City as
required by Section 17.4 shall, until its Permitted Mortgage is satisfied of record or until written
notice of satisfaction is given by the Permitted Mortgagee to the City or it ceases to be a
Permitted Mortgagee, be entitled to the following:
Provision of concurrent notice of any default by any Party
hereunder; provided, however, that a failure of a Party to deliver a concurrent copy of such
notice of default to the Permitted Mortgagee shall not affect in any way the validity of the
notice of default as it relates to the defaulting Party, but in any subsequent proceedings
arising from or related to the notice of default with respect to which there was a failure to
provide the requested concurrent notice to the Permitted Mortgagee, the interest of the
Permitted Mortgagee and its lien upon the affected Property shall not be affected in any
way until such time as it has received proper notice and all cure periods with respect
thereto have expired, and provided, further, the giving of any notice of default or the failure
to deliver a copy to any Permitted Mortgagee shall in no event create any liability on the
part of the Person so declaring a default.
The right, but not the obligation, at any time prior to the earlier to
occur of exercise of the Right of Repurchase and/or Right of Reversion, or the termination
of this Agreement and without payment of any additional penalty or assumption of the
obligations of Developer under this Agreement, to cure or remedy such Potential Default or
Material Default, to effect any insurance, to pay any amounts due to the City, to make any
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repairs or improvements, to do any other act or thing required of Developer under this
Agreement and to do any act or thing which may be necessary and proper to be done in the
performance and observance of this Agreement to prevent termination of this Agreement.
To carry out the foregoing, Developer hereby agrees that from and after Healthcare
Property Close of Escrow until acquisition of the Healthcare Parcel or any portion thereof
by the City pursuant to the Right of Repurchase or Right of Reversion, such Permitted
Mortgagee and its agents and contractors shall have full access to the Healthcare Parcel for
purposes of accomplishing any of the foregoing. Any of the foregoing done by such
Permitted Mortgagee shall be as effective to prevent a termination of this Agreement or the
exercise by the City of the Right of Repurchase or the Right of Reversion as the same
would have been if done by Healthcare Developer.
Notwithstanding any other provision of this Agreement to the
contrary, if any Material Default shall occur which, pursuant to any provision of this
Agreement, entitles the City to terminate this Agreement and/or to exercise its Right of
Reversion, the City shall not be entitled to terminate this Agreement or to acquire the
Reacquired Property unless (a) the City, following the expiration of any periods of time
given Developer in this Agreement to cure such Material Default, shall have given written
Notice to Mortgagee
(b) within one year after delivery of such notice, such
Permitted Mortgagee shall fail to do any of the following:
cure the Material Default if the same consists of the
nonperformance by Developer of any covenant or condition of this Agreement requiring the
payment of money by Developer to the City, other than payments required under Sections 4.2 or
Section 7 (provided, however, that nothing set forth in this Agreement shall restrict or limit the
right of City to exercise its Governmental Capacity remedies with respect to the Entitlements or
any bond issues in favor of the City); and
if the Material Default is not of the type described in clause
(i) cure such Material Default, if
the same is capable of being cured within such one hundred eighty (180) calendar day period,
(ii) deliver a Construction Bond to the City for all uncompleted Improvements; provided that the
City shall have the right (upon delivery by the City of a written demand and without the consent
of any other Person) to require the surety issuing the Construction Bond to commence the
construction necessary to complete the Improvements no later than twelve (12) full calendar
months after the date of the Construction Bond, or (iii) commence, or cause any trustee under the
Permitted Mortgage to commence, and thereafter diligently pursue to completion, steps and
proceedings to Foreclosure; provided that except as extended by Section 17.6.4, such
Foreclosure shall be completed within a maximum of one (1) year following the commencement
of such proceeding. Any Material Default which does not involve a covenant or condition of this
Agreement requiring the payment of money by Developer to the City shall be deemed cured if
any Permitted Mortgagee shall diligently pursue to completion Foreclosure and shall, upon
acquiring fee title to all or any portion of the Property, thereafter undertake its obligations (if
any) with respect such portion of the Property pursuant to Section 17.6.2.
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If such Permitted Mortgagee is prohibited from commencing or
prosecuting Foreclosure by any process or injunction issued by any court or by reason of
any action by any court having jurisdiction of any bankruptcy or insolvency proceeding
involving Developer (other than any such process, injunction or court action occurring in
response to any negligence or misfeasance of Permitted Mortgagee), the times specified in
Section 17.6.3(b)(ii) for commencing or prosecuting a Foreclosure or other proceedings
shall be extended for the period of the prohibition; provided that the Permitted Mortgagee
shall have fully cured any Material Default required by Section 17.6.3(b)(i) above and shall
continue to perform and/or cure all such obligations as and when the same fall due.
Notwithstanding anything to the contrary in this Section 17.6, if the Foreclosure is not
consummated on or before the date that is 365 days after the date of the Notice to
Mortgagee, then at any time after such date (which shall not be extended by any
Bankruptcy of Developer or any Force Majeure delay), the City may (in its sole discretion
and without any further notice to any Mortgagee) consummate a Reversion Event.
No Permitted Mortgagee shall have the right to use the failure of
the City to provide notice to any other Mortgagee as a claim, defense or estoppel to
application of these provisions with respect to such Permi
Mortgage.
17.7Failure of Permitted Mortgagee to Cure
.
If Healthcare Developer shall have failed to cure any Material Default following the
Healthcare Property Close of Escrow within the time periods for such cure set forth in
Section 14, and any notice required by Section 17.6.1 to a Permitted Mortgagee with respect to
the Healthcare Developer and/or portion of the Healthcare Property affected by the Material
Default was properly given, and such Permitted Mortgagee has not cured or commenced to cure
as required by Section 1
notice to such Healthcare Developer and such Permitted Mortgagee either: (a) purchase the
Reacquired Property pursuant to the Right of Repurchase set forth in Section 16.3; (b) subject to
the conditions to exercise of such reversion set forth in Section 16.4.2, exercise its Right of
Reversion with respect to Reacquired Property pursuant to Section 16.4 or (c) exercise any other
rights or remedies provided to City by this Agreement.
17.8Condemnation or Insurance Proceeds
.
Except as otherwise expressly set forth in this Agreement, the rights of any Permitted
Mortgagee pursuant to its Permitted Mortgage to receive condemnation or insurance proceeds
which are otherwise payable to such Permitted Mortgagee or to a Party which is its mortgagor
shall not be impaired.
17.9Loss Payable Endorsement to Insurance Policy
.
The City agrees that the name of the senior-most Permitted Mortgagee may be added as
policies required to be carried by Developer under this Agreement.
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17.10Subordination
.
Notwithstanding anything to the contrary contained in this Agreement, the rights of the
parties to declare defaults hereunder and exercise their respective rights and remedies described
herein shall be subject in all cases to the conditions and limitations imposed thereon by the
Healthcare Subordination Agreement(s) executed by the City. In the event of any conflict
between the rights and remedies of the parties provided under this Agreement and the limitations
on such rights and remedies under the Healthcare Subordination Agreement, the Healthcare
Subordination Agreement shall control.
17.11Constructive Notice and Acceptance
.
Until such time as a Certificate of Compliance is Recorded with respect to the Property
and subject to the provisions of Section 2 or this Section 17 and the terms of any Healthcare
Subordination Agreement, all of the provisions contained in this Agreement shall be binding
upon and benefit any Person who acquires fee title to a portion of the Property. Upon acquisition
of fee title to an interest in the Property or any portion thereof by a Person, other than a Permitted
Mortgagee which is not assuming the obligations of Developer under this Agreement, acquiring
title through Foreclosure, the acquiring Person and the City shall meet and confer in good faith to
revise the Schedule of Performance as reasonably necessary to provide adequate time for such
Person to satisfy the obligations of Developer hereunder.
17.12Bankruptcy Affecting the Developer
.
Developer and City hereby agree that this Agreement (including the Right of Repurchase
and Right of Reversion contained herein), the Quitclaim Deeds and the Other Agreements shall
contain and consist of covenants running with the land and that neither this Agreement, the
Quitclaim Deeds or the Other Agreements shall be subject to rejection in bankruptcy, and
Developer hereby waives its rights to reject this Agreement, Quitclaim Deed(s) and the Other
Agreements in bankruptcy. If, notwithstanding the foregoing, the Developer, as debtor in
possession, or a trustee in bankruptcy for Developer seeks to and does reject this Agreement, the
Quitclaim Deeds or the Other Agreements in connection with any proceeding involving
Developer under the United States Bankruptcy Code or any similar state or federal statute for the
Bankruptcy Proceeding
ght of the City to
challenge such rejection, the Parties hereby agree for the benefit of the City and each and every
Permitted Mortgagee that such rejection shall, subject to the written acceptance by the most
senior Permitted Mortgagee, be deemed the Deve
rights under the Quitclaim Deeds and the Other Agreements and the Property corresponding
thereto to the most senior Permitted Mortgagee or its nominee or designee in the nature of an
assignment in lieu of foreclosure. Upon such deemed assignment the most senior Permitted
Mortgagee shall, subject to compliance with Section 2.2, become the Healthcare Developer
under this Agreement for the portion of the Other Healthcare Parcels secured by the Permitted
Mortgage as if the Bankruptcy Proceeding had not occurred.
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17.13Notice and Cure Rights of City
.
Following the occurrence of an event of default under any Mortgage, the holder of the
Mortgage shall promptly notify the City of the occurrence of such event of default, which
notification shall be provided to the City contemporaneously with the delivery to Developer or
its Assignee of any notice of default under any of Mortgage documents. The City shall have the
right, but not the obligation, during the cure periods which apply to Developer pursuant to the
Mortgage documents to cure default by Developer relative to the Mortgage. If the City elects to
and actual costs and expenses incurred by the City in curing the default and any amounts paid by
under this Agreement.
18.General Provisions.
18.1Applicable Law; Consent to Jurisdiction; Service of Process
.
This Agreement shall be governed by, interpreted under, construed and enforced in
accordance with the laws of the State of California, irrespective of Californias choice-of-law
principles. Developer and City agree that any disputes arising between them in connection with
this Agreement or in connection with or under any instrument, agreement or document provided
for or contemplated by this Agreement, including in connection with the execution of this
Agreement, a Close of Escrow or any other matter arising under, related to or in connection with
this Agreement (including a determination of any and all issues in such dispute, whether of fact
or of law) shall be tried and litigated exclusively in the Superior Court of the County of Orange,
State of California, in any other appropriate court of that county, or in the United States District
Court for the Central District of California. This choice of venue is intended by Developer and
the City to be mandatory and not permissive in nature, thereby precluding the possibility of
litigation between or among Developer and the City with respect to or arising out of or related to
this Agreement in any jurisdiction other than that specified in this Section 18.1. Each Party
hereby waives any right that it may have to assert forum non conveniens or similar doctrine or to
object to venue with respect to any proceeding brought in accordance with this Section 18.1, and
stipulates that the State and federal courts located in the County of Orange, State of California,
shall have in personam jurisdiction and venue over each of them for the purpose of litigating any
dispute, controversy or proceeding arising out of or related to this Agreement. Each Party
hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action
against it as contemplated by this Section 18.1 by means of registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of notices as set forth in this
Agreement, or in the manner set forth in Section 18.6(a) or (c) of this Agreement pertaining to
notice. Any final judgment rendered against a Party in any action or proceeding shall be
conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in
any manner provided by law.
18.2Legal Fees and Costs
.
If any Party to this Agreement institutes any action, suit, counterclaim or other
proceeding for any relief against another Party, declaratory or otherwise (collectively an
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Action
to enforce the terms hereof or to declare rights hereunder or with respect to any
inaccuracies or material omissions in connection with any of the covenants, representations,
warranties or obligations on the part of the other Party to this Agreement, then the Prevailing
Party in such Action shall be entitled to have and recover of and from the other Party all costs
and expenses of the Action, including (a) the Prevailing Party's reasonable attorneys' fees which
shall be payable at the actual contractual hourly rate for City's litigation counsel at the time the
fees were incurred, but in no event more than $200 per hour and (b) costs actually incurred in
bringing and prosecuting such Action and/or enforcing any judgment, order, ruling or award
(collectively, a Decision) granted therein, all of which shall be deemed to have accrued on the
commencement of such Action and shall be paid whether or not such Action is prosecuted to a
Decision. Any Decision entered in any final judgment shall contain a specific provision
providing for the recovery of all costs and expenses of suit, including reasonable attorneys fees
and expert fees and costs (collectively Costs) incurred in enforcing, perfecting and executing
such judgment. For the purposes of this paragraph, Costs shall include in addition to Costs
incurred in prosecution or defense of the underlying action, reasonable attorneys fees, costs,
expenses and expert fees and costs incurred in the following: (a) post judgment motions and
collection actions; (b) contempt proceedings; (c) garnishment, levy, debtor and third party
examinations; (d) discovery; (e) bankruptcy litigation; and (f) appeals of any order or judgment.
Prevailing Party within the meaning of this Section 18.2 includes a Party who agrees to
dismiss an Action in consideration for the other Partys payment of the amounts allegedly due or
performance of the covenants allegedly breached, or obtains substantially the relief sought by
such Party.
18.3Modifications or Amendments
.
No amendment, change, modification or supplement to this Agreement shall be valid and
binding on any of the Parties unless it is represented in writing and signed by each of the Parties
hereto.
18.4Further Assurances
.
Each of the Parties hereto shall execute and deliver, any and all additional papers,
documents, or instruments, and shall do any and all acts and things reasonably necessary or
appropriate in connection with the performance of its obligations hereunder in order to carry out
the intent and purposes of this Agreement.
18.5Rights and Remedies Are Cumulative; Limitation on Damages
.
Cumulative Remedies
. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies of
the Parties are cumulative, and the exercise by either Party of one or more such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other
rights or remedies for the same Material Default or any other Material Default by the other
Party. Except as otherwise specifically set forth in this Agreement, and subject to
Section 18.5.2 below, wherever a Party has a right to damages for the Material Default of
another Party: (a) such damages shall be limited to direct (actual) damages for the Material
Default of the other Party, and (b) each of the Parties, on behalf of itself and its successors
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and assigns, hereby expressly waives, releases and relinquishes any and all right to any
expectation, anticipation, indirect, consequential, exemplary or punitive damages.
Limitation on Damages Payable by the City
. Developer
acknowledges that the City would not have entered into this Agreement if the City could
become liable for significant damages under or with respect to this Agreement and the
Other Agreements. Consequently, and notwithstanding any other provision of this
Agreement, except for (a) the monetary damages that may arise from the Citys indemnity
obligations referenced below in Section 18.5.3, and (b) the payment of attorneys fees in
accordance with Section 18.2 and court costs, the City shall not be liable in damages under
this Agreement or any Other Agreement to Developer or to any Successor Owner and
Developer hereby waives any and all rights to claim damages of any kind or nature from
the City except as set forth in Section 18.5.3. Notwithstanding the foregoing, nothing
herein shall be deemed to preclude Developer from seeking payment for amounts which the
City is obligated to pay to Developer or Escrow Holder pursuant to Sections 1.8, 7.5.1,
7.5.4, 14.3.2, 15.1.3 or 15.4.3 of this Agreement, provided that Developer shall not be
entitled to any damages in addition to the actual amounts owed by the City to Developer
pursuant to this Agreement or the Other Agreements.
Special Circumstances Where Damages may be Payable by
the City
. Subject to Section 18.5.1, the limitations on damages set forth in Section 18.5.2
shall not limit the liability of the City, if any, for damages which arise out of (a) a breach of
the Citys representations and warranties contained in Sections 3.3 or 18.12 of this
Agreement, provided that the amount of any damages payable pursuant to this clause
(a) shall be the lesser of (i) actual damages, or (ii) One Hundred Thousand Dollars
($100,000) or (b) the exercise of any of the rights reserved to the City pursuant to
Section 4.1(a)(i) or (ii) and as the same shall be included in each Quitclaim Deed.
Right to Specific Performance
. In the event the City is in
Material Default with respect to a portion of the Property conveyed to Developer or any
obligation of City under this Agreement following Close of Escrow with respect to the
Property so conveyed, Developer shall be entitled to seek specific performance or
injunctive relief in order to enforce Developers rights pursuant to this Agreement. For
purposes of clarity, in the event that the City is obligated to pay any amounts to Developer
pursuant to this Agreement, including pursuant to Sections 1.8 and 7.5.4, and the City fails
to pay such amounts to Developer as and when required by this Agreement, Developer
shall be entitled to seek specific performance of such obligation, notwithstanding the other
provisions of this Section 18.5.
18.6Notices, 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) three (3) Business Days after
such notice has been sent by U.S. Postal Service via certified mail, return receipt requested,
postage prepaid, and addressed to the other Party as set forth below; (c) the next Business Day
after such notice has been deposited with an overnight delivery service reasonably approved by
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the Parties (Federal Express, Overnite Express, United Parcel Service 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; or (d) when
transmitted if sent by facsimile transmission or email to the fax number or email address set forth
below; provided that notices given by facsimile or email shall not be effective unless either (i) a
duplicate copy of such notice is promptly sent by any method permitted under this Section 18.6
other than by facsimile or email (provided that the recipient Party need not receive such
duplicate copy prior to any deadline set forth herein); or (ii) the receiving Party delivers a written
confirmation of receipt for such notice either by facsimile, email or any other method permitted
under this Section. Any notice given by facsimile or email shall be deemed received on the next
Business Day if such notice is received after 5:00 p.m. (recipients time) or on a non-Business
Day. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows:
City: Jeffrey C. Parker, City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
Fax: 714-838-1602
Email: jparker@tustinca.org
With a copy to: David Kendig
Woodruff Spradlin & Smart, APC
555 Anton Boulevard, #1200
Costa Mesa, CA 92626
Fax: (714) 415-1183
Email: dkendig@wss-law.com
Developer: 1C Tustin Legacy, LLC
915 Wilshire Blvd., Suite 2200
Los Angeles, CA 90017
Attn: John Mehigan
Fax: (213) 624-2279
Email: jmehigan@regencycenters.com
With a copy to: Regency Centers
One Independent Drive, Suite 114
Jacksonville, FL 32202
Attn: Legal Department
With a copy to: Allen Matkins Leck Gamble Mallory & Natsis LLP
1900 Main Street, 5th Floor
Irvine, California 92614-7321
Attn: Drew Emmel, Esq.
Fax: (949) 553-8354
Email: demmel@allenmatkins.com
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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.
18.7Delay
.
Definition of Force Majeure DelayForce Majeure Delay
shall mean the occurrence of any of the following events when such event is beyond the
control of the First Party and such Partys contractors and consultants and is not due to an
act or omission of such Party or any consultant, contractor or other Person for whom such
Party may be contractually or legally responsible, which directly, materially and adversely
affects (a) the ability of the First Party to meet its non-monetary obligations under this
Agreement, including the deadlines imposed by the Schedule of Performance, or (b) the
ability of Developer to Complete the Project, and which events (or the effect of which
events) could not reasonably have been avoided by due diligence and use of reasonable
efforts by the Party claiming Force Majeure Delay:
Civil Unrest. An epidemic, blockade, quarantine, rebellion, war,
insurrection, act of terrorism, strike or lock-out, riot, act of sabotage, civil commotion, act of a
public enemy, freight embargo, or lack of transportation.
Unforeseeable Conditions. Reasonably unforeseeable physical
condition of the Property including the presence of Hazardous Materials.
Casualty. Fire, earthquake or other casualty, in each case only if
causing material physical destruction or damage on the Property.
Litigation. Any lawsuit seeking to restrain, enjoin, challenge or
delay any issuance of any Entitlement or seeking to restrain, enjoin, challenge, or delay
construction of the Project, which is defended by the First Party.
Change of Law. The passage of a referendum or initiative that
results in the inability of the First Party to perform its material obligations hereunder; provided
however that the foregoing shall not apply to a Partys performance regarding any Close of
Escrow, which is governed by Sections 7 and 15.
Weather. Unusually severe weather conditions not reasonably
anticipatable for the City of Tustin, based upon U.S. Weather Bureau climatological reports for
the months included plus a report indicating average precipitation, temperature, etc. for the last
ten (10) years from the nearest reporting station.
Other Party. Any delay caused by the Second Partys failure to
respond in accordance with the terms of this Agreement from and after the time in which such
failure becomes a Material Default under this Agreement.
LimitationForce Majeure Delay
to the matters listed Section 18.7.1 above and specifically excludes from its definition the
following matters which might otherwise be considered Force Majeure Delay:
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Entitlements. The suspension, termination, interruption, denial
or failure to obtain or nonrenewal of any Entitlement, permit, license, consent, authorization or
approval which is necessary for the development of the Project, except for any such matter
resulting from a lawsuit or referendum as described in Section 18.7.1(d);
Foreseeable Changes in Governmental Requirements. Any
change in a Governmental Requirements which was proposed or was otherwise reasonably
foreseeable at the Effective Date;
Failure to Perform Obligations. Failure of Developer or any
Successor Owner or other Person to perform any obligation to be performed by Developer or any
Successor Owner or such other Person hereunder as the result of adverse changes in the financial
condition of Developer or such Successor Owner or other Person, as applicable;
Failure to Provide Financial Security. Failure of Developer or
any Successor Owner to provide financial security required by this Agreement when due or to
submit evidence of financing of the Project or failure to perform any obligation to be performed
by Developer or any Successor Owner or other Person hereunder as the result of adverse changes
in market conditions.
Failure to Submit Required Documentation. Failure of the First
Party to submit documentation as and when required by this Agreement.
Failure to Submit Basic Concept Plan, Other Plans and
Entitlements. Failure to submit a Basic Concept Plan and Concept Plan and Design Review
submittals, and/or submittals for other Entitlements required for construction of the
Improvements and/or development of the Project on the Property when required pursuant to the
Schedule of Performance.
Failure to Maintain Required Insurance. Failure to acquire,
maintain and submit evidence of insurance policies as required by Section 11.
Failure to Execute Documents. Failure of the First Party to
execute documents.
Other Matters. All other matters not caused by the Second Party
and not listed in Section 18.7.1(a) through (f).
ProcedureFirst Party
es that it is
entitled to an extension of time due to Force Majeure Delay, it shall notify the other Party
Second Party
the First Party becomes aware of such Force Majeure Delay, describing the Force Majeure
Delay, when and how the First Party obtained knowledge thereof, the date the event
commenced, the steps the First Party anticipates taking to respond to such Force Majeure
Delay, and the estimated delay resulting from such Force Majeure Delay and response.
The extension for Force Majeure Delay shall be granted or denied in the Second Partys
reasonable discretion. If the First Party fails to notify the Second Party in writing of its
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request for a given Force Majeure Delay within the thirty (30) calendar days specified
above, there shall be no extension for such Force Majeure Delay.
Extension of Time Periods
. Except as otherwise specifically set
forth in this Agreement, all time periods under this Agreement, including the Schedule of
Performance and the dates provided in Sections 16.3 and 16.4, relating to non-monetary
obligations under this Agreement shall be extended for Force Majeure Delay in accordance
with this Section 18.7.
Reversion Action Dates
. Notwithstanding any other provision
of this Agreement to the contrary, the Reversion Action Trigger Date shall be extended for
Force Majeure Delays only to the extent specifically set forth in Section 16.4.
18.8Conflict of Interest
.
No appointed or elected official or employee of the City shall have any personal interest,
direct or indirect, in this Agreement nor shall any official or employee participate in any decision
relating to the Agreement which affects his interests or the interests of any corporation,
partnership, or association in which he is directly or indirectly interested.
18.9Non-liability of City Officials and City or Developer Employees
.
No elected or appointed official, representative, employee, agent, consultant, legal
counsel or employee of the City shall be personally liable to Developer, or any successor in
interest in the event of any Default or breach by the City for any amount which may become due
to Developer or successor or on any obligation under the terms of this Agreement. No
representative, agent, consultant, legal counsel or employee of Developer shall be personally
liable to the City, or any successor in interest in the event of any Default or breach by Developer
for any amount which may become due to the City or successor or on any obligation under the
terms of this Agreement.
18.10Inspection of Books and Records
.
The City shall have the right at all reasonable times, upon ten (10) calendar days written
notice, to inspect the books and records of Developer pertaining to the Property as pertinent to
the purposes of this Agreement.
18.11Consents and Approvals
.
Consent
. In any instance in which a Party shall be requested to
consent to or approve of any matter with respect to which such Partys consent or approval
is required by any of the provisions of this Agreement, such consent or approval shall be
given in writing. In addition, whenever not expressly otherwise stated: (a) the City, when
acting in its Governmental Capacity shall be permitted to utilize its sole discretion with
respect to matters requiring its approval except as otherwise specified in any applicable
Governmental Requirements; (b) the City, when acting in its Proprietary Capacity shall not
unreasonably withhold, condition or delay its approvals with respect to matters requiring its
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approval hereunder; and (c) Developer shall not unreasonably withhold, delay or condition
its consent with respect to matters requiring its approval hereunder.
Deemed Submitted
. Any matter required by this Agreement to
be submitted to the City shall be deemed submitted upon the submittal to the City Manager
or designee.
Action Taken
. Following its approval by the City, this
Agreement shall be administered by any designee of the City Manager or the City
Manager. Except where the terms of this Agreement expressly require the approval of a
matter or the taking of any action by the City Council, any matter to be approved by the
City shall be deemed approved, and any action to be taken by the City shall be deemed
taken, upon the written approval by the City Manager (or designee). The City Manager or
designee shall have the authority to issue interpretations with respect to this Agreement and
to determine whether any action requires the approval of the City Council. All waivers,
amendments or modifications of this Agreement shall require the approval of the City
Council.
18.12No Real Estate Commissions
.
Developer Representation and Indemnity. The City shall not be
liable for any real estate commissions, brokerage fees or finders fees which may arise from
this Agreement. Developer represents that it has engaged no broker, agent or finder in
connection with this Agreement or the transactions identified in this Agreement, other than
disclosed to City in writing prior to the Effective Date. Developer hereby agrees to
indemnify and hold the City and its elected and appointed officials, employees and
representatives harmless from any losses and liabilities arising from or in any way related
to any claim by any broker, agent, or finder retained by Developer regarding this
Agreement or development of the Project or the transactions identified in this Agreement.
City Representation. The City represents that it has engaged no
broker, agent, or finder in connection with this Agreement or the transactions identified in
this Agreement.
18.13Date and Delivery of Agreement
.
Notwithstanding anything to the contrary contained in this Agreement, the Parties intend
that this Agreement shall be deemed effective, executed and delivered for all purposes under this
Agreement and for the calculation of any statutory time periods based on the date an agreement
between the Parties is effective, executed and/or delivered, as of the Effective Date.
18.14Constructive Notice and Acceptance
.
Every Successor Owner and each and every Person claiming by, through or under
Developer or any Successor Owner is and shall be conclusively deemed to have consented and
agreed to every provision contained herein, whether or not any reference to this Agreement is
contained in the instrument by which such Person acquired an interest in the Project or Property.
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18.15Survival of Covenants, Representation and Warranties
.
The covenants, representations, warranties, and indemnities specified in this Agreement
shall survive any investigation made by any Party hereto and the closing of the transactions
contemplated hereby until the termination of this Agreement.
18.16Construction and Interpretation of Agreement
.
Construction
. The language in all parts of this Agreement shall
in all cases be construed simply, as a whole and in accordance with its fair meaning and not
strictly for or against any Party. The Parties hereto acknowledge and agree that this
Agreement has been prepared jointly by the Parties and has been the subject of arms
length and careful negotiation over a considerable period of time, that each Party has been
given the opportunity to independently review this Agreement with legal counsel, and that
each Party has the requisite experience and sophistication to understand, interpret, and
agree to the particular language of the provisions hereof. Accordingly, in the event of an
ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall
not be interpreted or construed against the Party preparing it; instead other rules of
interpretation and construction shall be utilized. The provisions of California Civil Code
Section 1654 are specifically waived by each Party hereto.
Effect of Invalidity or Unenforceability
. If any term or
provision of this Agreement, the deletion of which would not adversely affect the receipt of
any material benefit by any Party hereunder, shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby and each other term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. It is the intention of the Parties hereto
that in lieu of each clause or provision of this Agreement that is illegal, invalid, or
unenforceable, there be added as a part of this Agreement an enforceable clause or
provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as
may be possible.
Captions
. The captions of the sections and clauses in this
Agreement are inserted solely for convenience and under no circumstances are they or any
of them to be treated or construed as part of this instrument.
References to Sections, Sections, Paragraphs, Clauses,
Exhibits, Attachments and Schedules
. Unless otherwise indicated, references in this
Agreement to Sections, paragraphs, clauses, exhibits, attachments and schedules are to the
same contained in or attached to this Agreement and all attachments and schedules
referenced in this Agreement are incorporated in this Agreement by this reference as
though fully set forth in this Section.
Gender, Singular and Plural
. As used in this Agreement and
as the context may require, the singular includes the plural and vice versa and the
masculine gender includes the feminine and vice versa.
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Includes and Including
. As used in this Agreement the words
18.17Time of Essence
.
Time is of the essence with respect to all provisions of this Agreement in which a definite
time for performance is specified; provided that the foregoing shall not be construed to limit or
deprive a Party of the benefits of any cure period or Force Majeure Delay expressly provided for
in this Agreement.
18.18Fees and Other Expenses
.
Except as otherwise provided in this Agreement, each of the Parties hereto shall pay its
own fees and expenses, including attorneys fees, experts fees and consultants fees and costs, in
connection with negotiation and preparation of this Agreement and compliance with its terms.
18.19No Partnership
.
Nothing contained in this Agreement shall be deemed or construed to create a
partnership, joint venture or any other relationship between the Parties hereto other than
purchaser and seller according to the provisions contained in this Agreement, or cause the City to
be responsible in any way for the debts or obligations of Developer.
18.20Binding Effect
.
This Agreement and terms, provisions, promises, covenants, conditions and restrictions
contained herein shall be binding upon and shall inure to the benefit of the Parties hereto and
their respective heirs, legal representatives, successors and assigns.
18.21No Third Party Beneficiaries
.
This Agreement has been made and entered into solely for the benefit of the Parties to
this Agreement and their respective successors and permitted assigns. Nothing in this
Agreement confers any rights or remedies on any other Person. Without limiting the generality
of the foregoing, nothing in this Agreement confers any rights or remedies on any Approved
Healthcare Developer or approved Transferee unless and until such Approved Healthcare
Developer becomes the Developer or Healthcare Developer, as applicable, hereunder, and then
only for the period from and after the Transfer to such Developer or Healthcare Developer.
Nothing in this Agreement relieves or discharges the obligation or liability of any third Persons
to any Parties to this Agreement.
18.22Counterparts
.
This Agreement may be executed in two or more separate counterparts, each of which,
when so executed, shall be deemed to be an original. Such counterparts shall, together,
constitute and shall be one and the same instrument. This Agreement shall not be effective until
the execution and delivery by the Parties of at least one set of counterparts. The Parties agree to
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recognize execution of this Agreement by facsimile or other electronically transmitted
signatures; provided that such execution by facsimile or electronic transmission shall not be
effective unless a manually executed copy of the signature page is promptly sent by U.S. Postal
Service, postage prepaid or overnight delivery service or is hand delivered to the Parties or
Escrow Holder pursuant to Section 4.4. The Parties hereby authorize each other (and Escrow
Holder) to detach and combine original signature pages and consolidate them into a single
identical original. Any one of such completely executed counterparts shall be sufficient proof of
this Agreement.
18.23Duplicate Originals, Entire Agreement and Waivers
.
Duplicate Originals
. This Agreement is executed in three (3)
duplicate originals, each of which is deemed to be an original.
Entire Agreement
. This Agreement, including the Attachments
hereto, together with the Other Agreements, constitute the entire agreement between the
Parties with respect to the subject matter hereof. This Agreement and the Other
Agreements supersede and replace any and all prior agreements, proposed agreements,
negotiations and communications, oral or written, relating to the subject matter hereof and
contain the entire agreement between the Parties as to the subject matter hereof and any and
all prior agreements, understandings or representations between the Parties and/or any
Developer Affiliate are hereby terminated and canceled in their entirety. Each Party hereby
acknowledges that no other Party hereto, nor its agents or attorneys, have made any
promises, representations or warranties whatsoever, expressed or implied, not contained in
this Agreement or the Other Agreements, to induce such Party to execute this Agreement,
and each Party acknowledges that it has not executed this Agreement in reliance on any
such promise, representation or warranty not contained in this Agreement or any Other
Agreements. For the avoidance of doubt, this Agreement shall terminate and supersede the
RFP, the responses of Developer or any Developer Affiliate in connection therewith and
the ENA, except that this Agreement does not supersede Sections 3.5, 4.5.3, 4.3.6, 6.9.2,
10.2 or 10.13 of the ENA which shall remain in effect with respect to claims arising during
or related to the term of the ENA.
No Waiver
. No waiver of any provision or consent to any action
under this Agreement shall constitute a waiver of any other provision or consent to any
other action, whether or not similar. No waiver or consent shall constitute a continuing
waiver or consent or commit a Party to provide a waiver in the future except to the extent
specifically set forth in writing. All waivers of the provisions of this Agreement must be in
writing and signed by the appropriate authorities for the City and Developer and all
amendments hereto must be in writing and signed by the appropriate authorities of the City
and Developer.
18.24Confidentiality
.
Non-Disclosure and Exceptions
. Subject to the provisions of
Public
the California Public Records Act (Government Code Section 6250 et seq.
Records Act
s use and disclosure of its agreements and records,
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the City and Developer hereby agree that each shall keep confidential information provided
by the other and denominated as confidential and will not disclose any such information to
any Person without obtaining the prior written consent of the other Party, except that (a) the
City shall have the right to disclose any information contained in any third party reports
produced or obtained by Developer and required to be disclosed by it pursuant to law,
(b) Developer shall have the right to disclose any Developer Excluded Information, (c) the
City shall have the right to disclose any City Excluded Information, (d) Developer shall
have the right to disclose to its consultants, members, and their respective consultants and
members, any information to the extent necessary or desirable in connection with
Developers due diligence on the Property and performance of its obligations under this
Agreement and the Other Agreements, (e) City shall have the right to disclose to its
officials, employees and City retained consultants and representatives all information
received by it from Developer as required to perform its obligations under this Agreement
and the Other Agreements, and (f) either Party shall have the right to disclose any
information to the extent that it is legally required or compelled to do so provided that (to
the extent permitted) it provides the other Property with prior notice of such disclosure
obligation and cooperates with such other Party (at no cost or liability to the cooperating
Party) in any attempts to obtain confidential treatment of such disclosed information.
Developers obligations pursuant to this Section 18.24 shall terminate upon the earlier of
(A) termination of this Agreement, (B) the Healthcare Property Close of Escrow or (C) if
the Healthcare Property Close of Escrow has not then occurred, the Healthcare Property
Outside Closing Date. Except with respect to material described in Section 18.24.2, the
Citys obligations pursuant to this Section 18.24 shall terminate upon the earlier of (1) the
Healthcare Property Close of Escrow or (2) if the Healthcare Property Close of Escrow has
not then occurred, the Healthcare Property Outside Closing Date.
Financial Information
. Developer shall identify with
specificity any submitted financial documents which Developer wants the City to maintain
as confidential documents and a statement as to why the request is consistent and complies
with the provisions of the Public Records Act. The City shall not disseminate such
information and shall take all reasonable steps to maintain such confidentiality unless
otherwise required by law. The Citys staff, agents, negotiators and consultants may
review the statements as necessary as long as such parties agree to maintain the
confidentiality of such statements.
Cooperation
. In the event that the City obtains a request
pursuant to the provisions of the Public Records Act to disclose any of Developer's
information which the City is required to keep confidential pursuant to the terms of this
Agreement, the City shall provide Developer with prompt written notice thereof and the
City and Developer shall cooperate at Developers sole cost and expense to seek to avoid
disclosure of such matters to the extent legally permissible pursuant to the provisions of the
Public Records Act.
18.25Proprietary and Governmental Roles; Actions by Parties
.
Except where clearly and expressly provided otherwise in this Agreement, the capacity of
the City in this Agreement shall be as owner, lessor, assembler, redeveloper and/or seller of
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Proprietary Capacity
by this
Agreement on the City, shall be limited to that capacity and shall not relate to, constitute a
waiver of, supersede or otherwise limit or affect the exercise by the City of its governmental
authority with respect to any matter related to this Agreement which shall include the regulation
and entitlement of the Property pursuant to Governmental Requirements, including enacting
laws, inspecting structures, reviewing and issuing permits, and all of the other legislative and
administrative or enforcement functions of each pursuant to federal, state or local law
Governmental Capacity
any discretionary or regulatory approvals required to be obtained from the City under applicable
Governmental Requirements.
18.26Performance of Acts on Business Days.
In the event that the final date for payment of any amount or performance of any act
under this Agreement falls on a day other than a Business Day, such payment may be made or
act performed on the next succeeding Business Day.
\[signature page follows\]
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IN WITNESS WHEREOF, the City and Developer have signed this Agreement as of the
date first set forth above.
CITY OF TUSTIN
Dated: By:
Jeffrey C. Parker
City Manager
ATTEST:
By:
Erica N. Rabe, City Clerk
APPROVED AS TO FORM
By:
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
Special Tustin Counsel
By:
Amy E. Freilich
Dated:
\[SIGNATURES CONTINUED ON NEXT PAGE\]
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1C TUSTIN LEGACY, LLC,
a Delaware limited liability company
By: Regency Centers, L.P.,
Delaware limited partnership
Its Sole Member
By: Regency Centers Corporation,
a Florida corporation
Its General Partner
By: ________________________
Dated:
John Mehigan
Vice President
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JOINDER OF ESCROW HOLDER
The undersigned is joining this Agreement to evidence its agreement to receive, hold and
disburse the Purchase Price Deposit in accordance with the terms of this Agreement and
otherwise to comply with the escrow instructions set forth in this Agreement.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
Name:
Title:
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LIST OF ATTACHMENTS
ATTACHMENT 1 GLOSSARY OF DEFINED TERMS
ATTACHMENT 2A LEGAL DESCRIPTION OF DEVELOPMENT PARCELS
ATTACHMENT 2B DEPICTION OF RETAIL PARCEL AND HEALTHCARE
PARCEL
ATTACHMENT 3 SITE PLAN, SUBDIVISION AND PAD PLAN & COMMON
AREA
ATTACHMENT 4 PRELIMINARY TITLE REPORT
ATTACHMENT 5 DESCRIPTION OF CITY BENEFITED PROPERTIES
ATTACHMENT 6 FORM OF CITY ESTOPPEL
ATTACHMENT 7 SCHEDULE OF PERFORMANCE
ATTACHMENT 8 SCOPE OF DEVELOPMENT
ATTACHMENT 9 DEPICTION OF HORIZONTAL IMPROVEMENTS
ATTACHMENT 10 LIST OF ENVIRONMENTAL REPORTS AND STATEMENTS
ATTACHMENT 11 FORM OF QUITCLAIM DEED
ATTACHMENT 12 FORM OF MEMORANDUM OF DDA
ATTACHMENT 13A UPDATED REG CERTIFICATE
ATTACHMENT 13B HEALTHCARE GUARANTOR CERTIFICATE
ATTACHMENT 13C CONTROLLING PERSON CERTIFICATE
ATTACHMENT 14A FORM OF REG GUARANTY
ATTACHMENT 14B FORM OF HCD GUARANTY
ATTACHMENT 15 FORM OF CERTIFICATE OF COMPLIANCE
ATTACHMENT 16A FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ATTACHMENT 16B FORM OF HCD ASSIGNMENT AND ASSUMPTION
AGREEMENT
ATTACHMENT 17 FORM OF CITY DATE DOWN CERTIFICATE
ATTACHMENT 18A FORM OF DEVELOPER DATE DOWN CERTIFICATE
ATTACHMENT 18B FORM OF HEALTHCARE DEVELOPER CERTIFICATE
ATTACHMENT 19 LIST OF PROHIBITED USES
ATTACHMENT 20 FORM OF SPECIAL RESTRICTIONS
ATTACHMENT 21 RETAIL PARCEL PRE-APPROVED TENANTS
ATTACHMENT 22A FORM OF CITY NON-DISTURBANCE AND ATTORNMENT
AGREEMENTPAD TRANSFEREE
ATTACHMENT 22B FORM OF CITY NON-DISTURBANCE AND ATTORNMENT
AGREEMENTSPACE LEASES
ATTACHMENT 23 FORM OF HEALTHCARE PERMITTED MORTGAGEE
SUBORDINATION AGREEMENT
ATTACHMENT 24 LAND REPURCHASE AMOUNT
ATTACHMENT 25 SLOPE PARCEL EASEMENT AND LANDSCAPE
INSTALLATION AND MAINTENANCE AGREEMENT
ATTACHMENT 26 TRIP ALLOCATION
ATTACHMENT 27 LICENSE AGREEMENT
ATTACHMENT 28 APPLICABLE APPROVALS
ATTACHMENT 29 ON-LOT IMPROVEMENTS
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ATTACHMENT 1
GLOSSARY OF DEFINED TERMS
For purposes of this Agreement, the following capitalized terms shall have the following
meanings:
Action
Section 18.2.
Additional Liability Period
(a) with respect to any Developer or
Healthcare Developer, for the period of ownership of its Successor Owners unless such
Developer or Healthcare Developer has been released with respect to such obligations pursuant
to Section 2.2.3(b)(v); (b) with respect to any Developer or Healthcare Developer, for the period
of ownership of its Successor Owners acquiring pursuant to Permitted Transfer under
Sections 2.2.2(a) or (b); (c) with respect to Transfer by Developer to a Healthcare Developer, for
the additional period following Transfer to a Healthcare Developer until the HCD Guaranty has
been delivered and the Healthcare Transferor Obligations have been completed; provided that in
no event shall termination of the Additional Liability Period remove, reduce or modify the
liability of Developer, Healthcare Developer or their respective Successor Owners for Ongoing
Matters.
Additional Purchase Price
shall have the meaning set forth in Section 4.2.3.
Agreement
pment Agreement
including all Attachments attached hereto.
ALTA Policy
s and/or leasehold policy
of insurance as such term is used in Section 6.2.
Applicable Approvals
Section 8.3.2.
Applicable ENA Deposit
Section 1.9.2.
Approval Notice
Approved Healthcare Developer
(a) a Healthcare Developer that is
approved by the City in its sole discretion in accordance with the requirements of
Sections 2.2.3(b) and 4.6, or (b) a Person that is Controlled by the Person that was the
Controlling Person of a Healthcare Developer at the time of City approval of the Healthcare
Developer. As of the Effective Date, there is no Approved Healthcare Developer.
Approved Plans
: (a) the Applicable Approvals required by the
City which govern development of improvements on the Property, including approval of plans
by the City in its Governmental Capacity pursuant to the Concept Plan and Design Review
process; (b) the Basic Concept Plans approved by the City in its Proprietary Capacity pursuant
to Section 8.4.7 of the Agreement, and (c) approval by the City of construction levels drawings
as required to obtain the Entitlements.
ATTACHMENT 1
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Assignment
mean an Assignment and Assumption Agreement in the form and
substance of the agreement attached as Attachment 16A which shall be required to be executed
by transferor, Transferee and consented to by the City, with respect to an assignment and
as a whole or in the Retail Project pursuant to
Section 2.2.3(a).
Bankruptcy Proceeding
ning set forth in Section 17.12.
Base Closure Law
Section 1.1.1.
Base Purchase Price
Section 4.2.
Basic Concept Plan
shall mean the submittals by Developer to the City for purposes of
satisfaction of the Concept Plan and Design Review approval and shall include the Phasing and
proposed product mix, provided that Basic Concept Plan submittals shall be reviewed by the City
in its Proprietary Capacity (as opposed to the Concept Plan and Design Review submittals which
are reviewed by the City Development Department under the Governmental Capacity of the
City.)
Building
Building Pad
vided lot comprising a portion of the
Development Parcels.
Business Day(s)
specifically exclude Fridays when City Hall is officially closed, Saturday, Sunday or a legal
holiday.
CC&Rs
shall have the meaning set forth in Section 13.
CEQA
regulations and guidelines, contained in Cal. Public Resources Code Section 21000 et seq., and
Cal. Code of Regulations, title 14, Section 15000 et seq., respectively.
Certificate of Compliance
upon Completion by Developer of all of the Improvements and satisfaction of all additional
Conditions Precedent applicable to such Parcel set forth in Section 9. A Certificate of
Compliance may be issued for either of the Retail Project or the Healthcare Project.
City
s rights,
powers and responsibilities as described in Section 1.4.1.
City Attorney
City Benefited Property
on Attachment 5 attached hereto.
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City Code
mean the Tustin City Code for the City of Tustin, California, as the
same may be amended from time to time.
City Costs Deposit
Section 1.8.2.
City Council
es as the
Citys legislative body.
City Estoppel
substance of that attached hereto as Attachment 6, to be executed and delivered by the City to a
Transferee or to a Successor Owner.
City Excluded Information
(a) known by the City prior
to the disclosure thereof by Developer or its officers, employees, agents, attorneys, affiliates,
representatives, contractors, successors or assigns, (b) developed by or on behalf of the City
without the use of any confidential information provided by Developer or its officers, employees,
agents, attorneys, affiliates, representatives, contractors, successors or assigns, (c) disclosed to
the City by a third party other than Developer or any of its officers, employees, agents, attorneys,
affiliates, representatives or contractors, or (d) known to the public through no act or fault of the
City in violation of this Agreement.
City Hall
ity of Tustin, presently located at
300 Centennial Way, Tustin, California.
City Indemnified Parties
Section 10.1.
City Lien
Section 16.2.
City Manager
ker, or his successor in such capacity, or
other designee as identified in writing by the City Manager.
City Non-Disturbance and Attornment Agreement
-
disturbance and attornment agreement and estoppel certificate to be executed and delivered by
the City to a Transferee substantially in the form and substance attached hereto as
Attachment 22A (with respect to Pad Transferees) or Attachment 22B (with respect to Space
Leases) or as otherwise agreed by the parties thereto, each in its sole discretion.
City Representatives
Section 3.3.
City Healthcare Property Closing Conditions
Section 7.2.2.
City Retail Property Closing Conditions
Section 7.3.2.
City Transaction Expenses
Section 1.8.3.
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ClaimClaims
orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses
(including attorneys fees, fees of expert witnesses, and consultants and court and litigation
costs), costs and expenses attributable to compliance with judicial and regulatory orders and
requirements, fines, penalties, liens, taxes, or any type of compensation whatsoever, direct or
indirect, known or unknown, foreseen or unforeseen.
Class A Project
(a) the Retail Parcel, a first class retail
shopping center equivalent in terms of construction, design and maintenance with the top ten
percent (10%) of neighborhood commercial shopping centers in the market area (i.e., within
twenty (20) miles of) the Property and containing no Prohibited Uses and (b) the Healthcare
Parcel, a first class medical facility equivalent in terms of construction, design and maintenance
with the top ten percent (10%) of medical office centers in the market area (i.e., within twenty
(20) miles of) the Property and containing no Prohibited Uses.
Class A Standards
consistent with a Class A Project.
Close of Escrow
title to the Property by the City to Developer pursuant to one or more Quitclaim Deeds, and
execution and Recording (to the extent that such Other Agreements are to be Recorded pursuant
to the terms of Section 7.5.5(b)) of Quitclaim Deed and the Other Agreements and additional
documents associated therewith, as more fully set forth in Section 7, which shall take place on
the applicable Closing Date, and which shall take place in one or two closings.
Closing Conditions
Escrow, the Developer Healthcare Property Closing Conditions and the City Healthcare Property
Closing Conditions and with respect to the Retail Property Close of Escrow, the Developer
Retail Property Closing Conditions and the City Retail Property Closing Conditions.
Closing Retail Equity Funding Letter
required to be delivered by Developer to the City prior, and as a condition for the benefit of the
City, to the Retail Property Close of Escrow.
Commenced Construction
mean, with respect to the Medical Office Building,
that the Healthcare Developer owning the Medical Office Building has applied for and obtained
the first building permit (which shall include the first foundation permit) for construction of the
Vertical Improvements comprising the Medical Office Building.
Common Area
shared drive aisle as depicted on Attachment 3
Common Area Improvements
lighting, and landscaping within the Common Area as reflected in the Approved Plans, as will be
further described in the CC&Rs.
CompleteCompletion
constructed in Phases, with respect to a given Phase, the point in time when all of the following
shall have occurred with respect to the Project or such Phase: (a) the Improvements with respect
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thereto have been substantially completed in accordance with this Agreement; (b) the issuance of
a permanent certificate of occupancy by the City or, to the extent a certificate of occupancy is not
required by the City for a particular Improvement, the equivalent inspection, signoff or other
permit activity with respect to such Improvement, (c) the Recording of a Notice of Completion
(California Civil Code Section 3043) by Developer, its Successor Owner or such Partys
contractor; (d) a certification by the Project Architect that such Improvements (with the
and substantially in accordance with the Approved Plans and specifications; and (e) all
contractors, subcontractors, laborers, suppliers, Architects, and engineers who performed work
on the relevant Improvements shall have been paid in full and shall have executed final
unconditional lien waivers and any mechanics liens that have been recorded or stop notices that
have been delivered have been paid, settled or otherwise extinguished, discharged, released,
waived, bonded around or insured against.
Concept Plan and Design Review
required by the Specific Plan and the site plan and design review approvals required by the City
Code, which shall be part of the Entitlements.
Conditions Precedent
ith respect to a Certificate of Compliance
for the Healthcare Parcel and the Healthcare Project, the conditions precedent to issuance of such
certificate set forth in Section 9.2, and with respect to a Certificate of Compliance for the Retail
Parcel and the Retail Project, the conditions precedent to issuance of such certificate set forth in
Section 9.3.
Construction Bond
performance bond, each in a sum of not less than one hundred percent (100%) of the scheduled
cost of construction of the Improvements required to be bonded, and guaranteeing due and
punctual performance and completion (within the respective times provided in the Schedule of
Performance) in accordance with the applicable Approved Plans that specifically describe the
work to be performed in sufficient detail for the issuance of such bond(s), and including all
obligations of and to subcontractors, sub-subcontractors and other Persons with respect to the
work covered by such bond, and naming the City as a co-obligee. Said bonds, if issued, shall be
issued by an insurance company which is licensed to do business in California and named in the
Register by the Audit Staff Bureau of Accounts, U.S. Treasury Department and for amounts
which are not in excess of the acceptable amount set forth on such list for the respective surety.
The insurance company shall have a rating equivalent to a Best rating of A or FSC rating of 9.
Construction Loan
Permitted Mortgage made by a Permitted Mortgagee
that will be secured by a first lien deed of trust on all or any portion of the Development Parcels,
the loan documents for which have been approved by the City as part of the Healthcare
Financing Plan and otherwise in accordance with this Agreement, and the proceeds of which
may be used by the mortgagee only to construct the Vertical Improvements and pay other
no
Development Costs, provided that it is the intent of the Parties that Construction Loan shall
be permitted with respect to the Retail Project or any portion thereof or the Medical Office
Project or any portion thereof, and accordingly, no such Construction Loan shall be permitted for
any reason without the prior written consent of the City in its sole discretion.
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Construction Period Commencement Date
: (a) with respect to the Retail
Parcel, the earlier of (i) the date on which the City issues to Developer the Grading Permits for
the Grading Work on the Retail Parcel or (ii) six (6) months following Retail Property Close of
Escrow but in no event later than June 30, 2017 and (b) with respect to the Healthcare Parcel, the
earlier of (i) the date on which the City issues to Healthcare Developer the first permit for
Horizontal Improvements on the Healthcare Parcel or (ii) six (6) months following Healthcare
Property Close of Escrow but in no event later than December 1, 2017.
ControlControlledControlling
to any Person, shall
mean the possession, directly or indirectly (including through one or more intermediaries), of the
power to direct or cause the direction of the management and policies of such Person, including
through the ownership or control of voting securities, partnership interests, membership interests,
or other equity interests, acting as the manager of a limited liability company, or otherwise.
Controlling Person
(a) any Person who Controls Developer and (b) any
Person who Controls a Controlling Person.
Costs
Section 18.2.
DA
respect to the Development Parcels, pursuant to Government Code Section 65864 et seq.
DDA Transaction Expenses
implementation costs incurred in connection with this Agreement, the Other Agreements and/or
the Project, and each and every component thereof, and shall include (a) City staff costs; (b) the
costs of third party consultants, legal counsel, appraisers, financial, engineering and other
consultants and any other expenditures required in connection with the implementation,
amendment, modification and/or termination of this Agreement and/or the Other Agreements
(including any requested modification to the attachments thereto); (c) approvals by the City
requested Transfers, Transferees, Permitted Mortgages and Permitted Mortgages and
documentation submitted by Developer or any proposed Transferee or Mortgagee in connection
therewith; (d) and provision of estoppel certificates, certificates of compliance and the like,
occurring at any time from the Effective Date until, as to each of the Retail Parcel and the
Healthcare Parcel, the Recording of a Certificate of Compliance for such Parcel.
Decision
Section 18.2.
Default
Default Notice
Section 14.1.
Default Rate
annually, but in no event in excess of the maximum legal rate.
Defaulting Party
Section 14.1.
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Developer
Acquisition LLC, as of the Effective Date of
the Agreement, and each and every Successor Owner following any Transfer or Transfer of
Control pursuant to a Permitted Transfer or any other Transfer or Transfer of Control approved
by the City, as described in Section 2.2, including Healthcare Developer with respect to the
Healthcare Parcel.
Developer Affiliate
shall mean REG, or any Person that Controls, is Controlled by or
is under common Control with REG or Regency Centers Acquisition LLC.
Developer Excluded Information
(a) known by
Developer prior to the disclosure thereof by the City or its elected and appointed officials,
employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns,
(b) developed by or on behalf of Developer without the use of any confidential information
provided by the City or its officers, employees, agents, attorneys, affiliates, representatives,
contractors, successors or assigns, (c) disclosed to Developer by a third party other than the City
or any of its elected and appointed officials, employees, agents, attorneys, affiliates,
representatives or contractors, or (d) known to the public through no act or fault of Developer in
violation of this Agreement.
Developer Healthcare Property Closing Conditions
in Section 7.2.1.
Developer Insolvency Event
Section 2.2.5.
Developer Knowledge Parties
Section 3.1.
Developer Representatives
mean the Developer and its officers, directors,
employees, agents, representatives, tenants, prospective tenants, prospective purchasers,
contractors, and other Persons accessing the Development Parcels and/or the Slope Parcel or
other property owned by the City by, through or with the permission or under the direction or
auspices of Developer, and when used in the context of the Healthcare Developer shall mean the
s officers, directors, employees, agents, representatives, tenants, prospective tenants, prospective
purchasers, contractors, and other Persons accessing the Healthcare Parcel and/or the Slope
Parcel or other property owned by the City by, through or with the permission or under the
direction or auspices of Healthcare Developer.
Developer Retail Property Closing Conditions
Section 7.3.1.
Developer Title Endorsements
Section 6.4.
Development Costs
Section 8.1.3.
Development Parcel
individually.
Development Parcels
Section 1.2.
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Development Permits
Governmental Authority in connection with construction of the Project and shall include any
grading permit, foundation permit, construction permit, building permit or other permit type as
may be necessary pursuant to Chapter 4 of the Specific Plan and/or the City Code.
Diligence Termination Notice
Section 5.1.
Disapproved Exception
Section 6.3.
Disposition Strategy
Section 1.1.5.
DTSC
an the California Department of Toxic and Substance Control.
Due Diligence Information
relating to the Property furnished to Developer by the City, or its elected and appointed officials,
employees, agents, attorneys, affiliates, representatives, contractors or consultants, in connection
with Developers due diligence pursuant to Section 5.1 of this Agreement.
Due Diligence Period
Section 5.1.
EBS
aning set forth in Section 4.5.1(b)(iii).
Effective Date
and if no date is set forth in that location shall be the date of City Council approval of this
Agreement (even if executed subsequent to such date).
ENA
Package 1C) entered into by the City and Developer, dated August 7, 2012, as the same may
have been amended from time to time.
ENA Deposit
Section 1.8.1.
ENA Transaction Expenses
Section 1.8.1.
End User
Improvement including any Building or Leasable Space, whether such Person holds a fee interest
in a Building Pad, a ground leasehold interest in a Building Pad, or a leasehold interest in a
Leasable Space or is leasing office space in a Building.
Entitlements
land use approvals and entitlements legally required by the City or any other Governmental
Authority as a condition of the Parcel Map and development of the Property and construction of
Improvements and shall include the Applicable Approvals, but shall specifically exclude
Development Permits.
Entitlement Approval Date
Approvals for the Property to be developed by Developer with the Project have been granted by
the City, and no lawsuit has been filed to challenge such entitlements within the statute of
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limitations or, if a lawsuit has been filed, the date on which the lawsuit is finally adjudicated and
is not appealable or has been settled and dismissed with prejudice.
Environmental Agency
Agency; the California Environmental Protection Agency and all of its sub-entities, including
any Regional Water Quality Control Board, the State Water Resources Control Board, the
Department of Toxic Substances Control, the South Coast Air Quality Management District, and
the California Air Resources Board; the City; any Fire Department or Health Department with
jurisdiction over the Property; and/or any other federal, State, regional or local governmental
agency or entity that has or asserts jurisdiction over Hazardous Substance Releases or the
presence, use, storage, transfer, manufacture, licensing, reporting, permitting, analysis, disposal
or treatment of Hazardous Materials in, on, under, about, or affecting the Project, the
Development Parcels or any Improvements thereon.
Environmental Laws
rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence
as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating
or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory
decrees, judgments and orders and common law, including those relating to industrial hygiene,
public safety, human health, or protection of the environment, or the reporting, licensing,
permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage,
discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous
Materials. Environmental Laws shall include the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.)
CERCLA
RCRA
Section 6901 et seq.
(33 U.S.C. Section 1251 et seq.); the Toxic Substances Control Act, as amended (15 U.S.C.
Section 2601 et seq.); the Hazardous Substances Account Act (Chapter 6.8 of the California
Health and Safety Code Section 25300 et seq.); Chapter 6.5 commencing with Section 25100
(Hazardous Waste Control) and Chapter 6.7 commencing with Section 25280 (Underground
Storage of Hazardous Substances) of the California Health and Safety Code; and the California
Water Code, Sections 13000 et seq.
Escrow
Section 4.4.
Escrow Holder
First American Title Insurance Company.
Federal Deed
Pursuant to Civil Code Section 1471 dated May 13, 2002, that was Recorded on May 14, 2002 as
Instrument Number 20020404598.
Federal Government
by and through the Secretary of the Navy, or designee.
Final EIS/EIR
shall have the meaning set forth in Section 1.1.2.
Financing Plan
Section 4.6.1.
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FIRPTA Affidavit
in Real Property Act.
First Option Payment
g set forth in Section 7.1.1(b).
First Option Term
Section 7.1.1(b).
First Party
Section 18.7.3.
Force Majeure Delay
Section 18.7.1 as limited by
Section 18.7.2.
Foreclosure
thereunder), whether by judicial proceedings, by virtue of any power of sale under the Permitted
Mortgage, by acceptance of a deed-in-lieu of foreclosure, or by any other conveyance of all or
any portion of the Property and/or Improvements by other appropriate proceedings in the nature
of a foreclosure, resulting in the Transfer of all or any portion of the Property and/or
Improvements to (a) any Permitted Mortgagee, (b) any entity that Controls Permitted Mortgagee,
is Controlled by Permitted Mortgagee, or is Controlled by an entity that also Controls Permitted
Mortgagee, (c) any participating lender in the Construction Loan (excluding Developer or any
Developer Affiliate), and/or (d) any agent or nominee for one or more of the lenders in clauses
(a) through (c) under the Permitted Mortgage that secures the Construction Loan.
FOST
Development Parcels were suitable for transfer to the City, pursuant to the document entitled
-8, 10-12, 14, and 42, and Parcels
25, 26, 30-33, 37, and Portions of 40 and 41 Marine Corps Air Station
September 28, 2001.
GBA
City Code requirements, and shall exclude items not included in such calculations, such as
unoccupied mezzanines.
General Plan
Governmental Authority
shall mean any and all federal, State, county, municipal and
local governmental and quasi-governmental bodies and authorities (including the United States
of America, the State of California and any political subdivision, public corporation, district,
joint powers authority or other political or public entity) or departments thereof having or
exercising jurisdiction over the Parties, the Project, the Property or such portions of the foregoing
as the context indicates.
Governmental Capacity
Section 18.25.
Governmental Requirements
regulations, standards, guidelines and other requirements issued by any Governmental Authority
having jurisdiction over, governing, applying to or other affecting the Parties, the Project, the
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Improvements, the Property or any component thereof and including the City Code, the Specific
Plan, the Entitlements, the Development Permits and the Approved Plans.
Grading Work
rough grading work for foundations and utilities
and precise grading work required to be completed by Developer on the Healthcare Parcel and
the Retail Parcel under the terms of this Agreement and any Parcel Map and/or subdivision
improvement agreement entered into in connection with the Parcel Map.
Ground Lease
Parcel to an End User for construction and/or occupancy of one or more Buildings thereon.
Guaranty
attached as Attachment 14A or 14 B or as otherwise approved by the City in its sole discretion in
which the City is a named beneficiary, made by the specified guarantors and guarantying
payment for all Development Costs, the faithful performance and completion (within the
respective times provided in this Agreement) of the respective portions of the Project and the
Improvements, or components thereof, and the other matters described herein in accordance with
this Agreement.
Hazardous Materials
Hazardous SubstanceHazardous MaterialHazardous Waste
(a)
Toxic Substance
Liability Act of 1980, 42 U.S.C. subsection 9601, et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. subsection 5101, et seq., or the Resource Conservation and
Recovery Act, 42 U.S.C. subsection 6901, et seq.;
Extremely Hazardous WasteHazardous Waste
(b)
Restricted Hazardous Waste
ections 25115, 25117, or 25122.7 of the California
Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the
California Health and Safety Code;
Hazardous MaterialHazardous SubstanceHazardous Waste
(c)
Toxic Air ContaminantMedical Waste
under subsections 25281, 25316, 25501,
25501.1, 117690 or 39655 of the California Health and Safety Code;
OilHazardous Substance
(d)
Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any
other hydro carbonic substance or by-product;
Hazardous WasteExtremely Hazardous
(e)
WasteAcutely Hazardous Waste
Code of Regulations;
(f) Listed by the State of California as a chemical known by the State to cause
cancer or reproductive toxicity pursuant to Section 25249.9(a) of the California Health and
Safety Code;
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(g) A material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures damages or threatens to damage, health,
safety, or the environment, or is required by any law or public agency to be remediated,
including remediation which such law or public agency requires in order for the property to be
put to any lawful purpose;
(h) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank;
(i) Pesticides regulated under the Feral Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. subsections 136 et seq.;
(j) Asbestos, PCBs and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. subsections 2601 et seq.;
(k)
---
ny other radioactive materials or radioactive wastes,
however produced, regulated under the Atomic Energy Act, 42 U.S.C. subsection 2011 et seq.,
the Nuclear Waste Policy Act, 42 U.S.C. subsection 10101 et seq., or pursuant to the California
Radiation Control Law, California Health and Safety Code Section 114960 et seq.;
(l) Regulated under the Occupational Safety and Health Act, 29 U.S.C.
subsection 651 et seq., or the California Occupational Safety and Health Act, California Labor
Code subsection 6300 et seq.; and/or
(m) Regulated under the Clean Air Act, 42 U.S.C. subsection 7401 et seq. or
pursuant to Division 26 of the California Health and Safety Code.
HCD Affiliate
shall mean any Person that Controls, is Controlled by or is under
common Control with Healthcare Developer.
HCD Agreements
an Approved Healthcare Developer for the Healthcare Property and which may also allocate
rights and obligations between Developer and Healthcare Developer under this Agreement with
respect to acquisition and development of the Healthcare Parcel, the Healthcare Project and the
Improvements located thereon, in form and substance approved by the City in its sole discretion.
HCD Assignment
eaning set forth in Section 1.4.4.
HCD Equity Funding Letter
Section 4.6.4(b).
HCD Guaranty
Guaranty in substantially the form and substance of the
guaranty attached as Attachment 14B or as otherwise approved by HCD Developer, Developer
and the City, each in its sole discretion.
Healthcare Developer
Section 2.2.3(b).
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Healthcare Developer Affiliate
d by
or is under common Control with Healthcare Developer.
Healthcare Financing Plan
Section 4.6.4(a).
Healthcare Guarantor Certificate
Section 4.6.5(a)(ii).
Healthcare Guarantor(s)
Section 4.6.5.
Healthcare Horizontal Improvements
Horizontal Improvements
required in connection with development, construction and operation of the Healthcare Project
and the On-Lot Improvements for the Healthcare Parcel.
Healthcare Improvements
the Healthcare Horizontal Improvements, the
Healthcare Vertical Improvements, and the components of the Minimum Horizontal
Improvements located upon or affecting the Healthcare Parcel.
Healthcare Parcel
Attachment 3 to this Agreement as Lots 10 through 13, inclusive, of Tentative Parcel Map 2015-
127, upon which the Medical Uses and Healthcare Parcel Retail Uses are proposed to be
constructed and operated.
Healthcare Parcel Retail Uses
shall mean any retail uses permitted pursuant to the
Specific Plan but specifically excluding grocery uses and stand-alone drug store use.
Healthcare Perimeter Landscape
mean the Landscape Improvements to be
constructed by Developer within the Healthcare Parcel Landscape Area, as each such term as
defined the Slope Parcel Easement and Landscape Installation and Maintenance Agreement
attached as Attachment 25.
Healthcare Project
Healthcare
Improvements on the Healthcare Parcel.
Healthcare Property
improvements, if any, presently located thereon, all appurtenances pertaining thereto and all
permits, licenses, approvals and authorizations issued by any Governmental Authority in
connection therewith.
Healthcare Property Close of Escrow
the Healthcare Property.
Healthcare Property Closing Date
Section 7.1.1(a).
Healthcare Property Closing Payment
Section 4.3.4(b).
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Healthcare Rough Grading
shall mean only the rough grading of the Healthcare
Property required by and consistent with the Approved Plans and specifically excludes precise or
finished grading of any Building Pads on the Healthcare Property.
Healthcare Property Option Payment
have the meaning set forth in
Section 7.1.1(b).
Healthcare Property Outside Closing Date
Section 7.1.1(a).
Healthcare Property Purchase Price
Section 4.2.1.
Healthcare Property Transferor
mean (a) prior to the Transfer of the
Healthcare Property to Healthcare Developer, the Initial Developer, or a Transferee with respect
Transfers s interests in and to the Healthcare Project and the Healthcare Property and
the components of this Agreement applicable thereto to an Approved Healthcare Developer
pursuant to Section 2.2.3(b), and (b) from and after the Transfer of the Healthcare Property to
Healthcare Developer, the Initial Developer and each Successor Owner of such Initial Developer
owning all or any portion of the Retail Parcel.
Healthcare Provisions
Section 15.1.1.
Healthcare Subordination Agreement
shall mean a subordination agreement between
the City and a Permitted Mortgagee, if any, with respect to the Other Healthcare Parcels, in the
form and substance of the agreement set forth as Attachment 23, or as otherwise agreed by the
City and Permitted Mortgagee, each in its sole discretion.
Healthcare Transferor Obligations
Developer with
respect to the Healthcare Property and the Healthcare Project for which the Healthcare Property
Transferor remains liable and shall not be released following the Transfer of the Healthcare
Property to the Healthcare Developer, notwithstanding the assignment to and assumption of such
obligations by Healthcare Developer, and shall include (a) construction and Completion of the
Minimum Horizontal Improvements upon the Healthcare Parcel; (b) construction and
Completion of the work described in the Slope Parcel Easement and Landscape Installation and
Maintenance Agreement; (c) the obligations of Healthcare Property Transferor set forth in
Section 14.2.6(a); (d) all obligations of Developer and Healthcare Developer prior to the
Healthcare Property Close of Escrow and the delivery by an Approved Healthcare Developer of
the HCD Guaranty and the HCD Assignment, including all Ongoing Matters related thereto, and
(e) the indemnity obligations of Developer set forth in Section 4.6.4(f).
Healthcare User
any entity that operates a non-residential hospital, medical
office, office, skilled nursing or other healthcare related facility.
Healthcare Vertical Improvements
Section 1.3.2(b).
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Horizontal Improvements
all Grading Work and the infrastructure
improvements and utilities required to be constructed or installed on or in connection with the
development of the Property as further described in the Scope of Development attached as
Attachment 8 to this Agreement and depicted on Attachment 9 to this Agreement comprised of:
(a) on-site and off-site infrastructure improvements including roadways, drives, alleyways,
sidewalks, parking lots, all utilities required for the Project to the boundary of each Building or
other improvement requiring such utility access, including the On-Lot Improvements and
Common Area Improvements and (b) off-site infrastructure improvements including sidewalks,
curb cuts and landscaping Horizontal Improvements and shall include those Improvements
required by the Parcel Map, each and every Entitlement condition and Development Permit and
any other Governmental Requirements.
Improvements
hall mean the Horizontal Improvements, the Vertical Improvements
and the On-Lot Improvements.
Independent Contract Consideration
Section 1.8.2.
Initial Developer
Section 1.4.2.
Initial Retail Equity Funding Letter
Retail Equity Funding Letter
required to be delivered by Developer to the City prior the Effective Date.
Injured Party
Section 14.1.
Insured Party
aning set forth in Section 11.2.1.
Investigation(s)
monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying
of or concerning the Property, including the air, soil, surface water, and groundwater, and the
surrounding population or properties, or any of them, to characterize or evaluate the nature,
extent or impact of Hazardous Materials.
Key Employees
: John Mehigan,
Vice President, Investments, West Region for Regency Centers.
Landscape Improvements
shall mean the perimeter edge landscaping for the
Development Parcels as described in Attachment 8 and in the locations depicted on Attachment 9
and the landscaping upon the Slope Parcel as described in Attachment 8 and in the locations
depicted as an exhibit to Attachment 25, in each case as required by the Approved Plans.
Leasable Space
t is
Leased or is intended to be Leased for Retail Uses (with respect to the Retail Parcel) or for
Medical Uses or Healthcare Parcel Retail Uses (with respect to the Healthcare Parcel), but shall
exclude Building Pads.
Lease
eement between Developer and a Tenant to lease,
sublease or license a Parcel or any portion thereof or any Building or portion thereof thereon,
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including any Ground Lease or Space Lease, and, as a verb, shall mean the leasing by Developer
of any Parcel or Vertical Improvement or portion thereof, including any space within a Building,
to a Tenant.
Lien Release Amounts
“” shall mean the amounts, if any,(a)of any City Lien and
(b)required to be paid to third parties by the City to clear all monetary liens (including all
mechanics’liensand stop notices) and Mortgages that encumber the Reacquired Property on the
date of a Reversion Event or the date of the close of escrow pursuant to the Right of Repurchase
and which, with respect to taxes and assessments, are then due and payable.
Material Default
“” shall have the meaning set forth in Sections14.2.1and 14.2.2.
MCAS Tustin
“” shall have the meaning set forth in Section1.1.1.
Medical OfficeBuilding
“” shall have the meaning set forth in Section 1.1.7.
Medical Office Parcel
“” shall have the meaning set forth in Section 1.1.7.
Medical Uses
“” shall mean medical-related services, including (a) acute
care/rehabilitationand skilled nursing facilitiesand associated servicesas approved by the City
from time to time pursuant to conditional use permit,(b) urgent care facilities and/or (c) medical
office uses staffed by doctors, nurses and/or related practitioners, and related amenities but shall
specifically exclude stand-alone retail, warehousing and manufacturing uses.
Memorandum of Agreement
“” shall have the meaning set forth in Section1.1.3.
Memorandum of DDA
“” shall mean a memorandum of record of this Agreement to be
Recorded against the Property substantially in the form and substance of the memorandum
attached to the Agreement as Attachment12.
Minimum Healthcare Improvements
“” shall have the meaning set forth in
.
Section9.2(a)
Minimum Healthcare Vertical Improvements
“” shall have the meaning set forth in
Section1.3.2(b).
Minimum Horizontal Improvements
“”shall meanthat portion of the Horizontal
Improvements comprised of (a)the Grading Work,(b)the construction of the shared main drive
aisle coming off of Kensington Park Drive, (c)all local (and not backboneas described in the
Tustin Legacy Backbone Infrastructure Program)on-site and off-site infrastructure
improvements and utilities and utility systems required to be constructed or installed on or in
connection with the development of the DevelopmentParcels including (i)all roadways, drives,
alleyways, sidewalks and parking lots within the Property, including finish pavingas required to
meet Code requirements for the Healthcare Vertical Improvements and Retail Vertical
Improvements, the sidewalks along Kensington Park Drive, Edinger Avenue and Valencia
Avenue adjacent to the perimeter of the Property and all traffic and circulation mitigation to
support the Project; (ii)all utilities and utility systems required for the Project to the boundary of
each Building Pad, including domestic and reclaimed water; sewer; telemetry; utilities
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(electricity, gas, telephone, cable, telecommunications, etc.), (d)the Common Area
Improvements, (e)“hydro seed”of the portions of the Development Parcels remaining
undeveloped, and (f)the LandscapeImprovements,including the landscape improvements upon
the Slope Parcel,but Minimum Horizontal Improvements shall exclude the On-Lot
Improvements.
Minimum Retail Improvements
“” shall have the meaning set forth in Section9.3(a).
MinimumImprovements
“”shall mean the Minimum Retail Vertical Improvements, the
Minimum Healthcare Vertical Improvements and all of the Horizontal Improvementsand On-
Lot Improvements.
Minimum Retail Vertical Improvements
“” shall have the meaning set forth in
Section1.3.2(b).
Mortgage
“” shall mean any indenture of mortgage or deed of trust, bond, grant of
taxable or tax exempt funds from a governmental agency or other security interest affecting the
Development Parcels or any portion thereof and the documents governing a sale-leaseback
transaction, together with all loan documents related thereto, but excluding any community
facilities districts, assessment districts, landscape and lighting districts or other assessments
created or imposed by any Governmental Authority.
Mortgagee
“” shall mean any mortgagee, beneficiary (or any agent for one or more
lenders acting in such capacity) under any indenture of mortgage, deed of trust, trustee of bonds,
governmental agency which is a grantor of funds, and, with respect to the Property orany portion
thereof which is the subject of a sale-leaseback transaction, the Person acquiring fee title.
Navy
“” shall mean the United States Department of Navy.
Non-Refundable ENA Deposit.
“” shall have the meaning set forth in Section 1.9.1
Notice of Completion
“” shall mean the notice of completion filed by Developer after the
Completion of each Improvement, pursuant to California Civil Code Section3093.
Notice to Mortgagee
“” shall have the meaning set forth in Section17.6.3.
Ongoing Matters
“”shall mean the following matters for which the transferor Developer
and/or Healthcare Developer, as applicable,shall remain responsible following any Transfer:
(a)matters or circumstances (including any payment obligations) which relate
to or arose during the period that such transferor is or wasDeveloperor Healthcare Developer, as
applicable, hereunderand for the Additional Liability Periodapplicable thereto;
(b)matters or circumstances for which Developer, as Healthcare Property
Transferor, remains liable hereunderand for the Additional Liability Period applicable thereto;
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(c)the releases set forth in Section4.5.2(f)or in the Other Agreements only
for matters arising during or related to the period that such transferor was Developer hereunder
and forthe Additional Liability Periodapplicable thereto;
(d)the indemnities set forth in Sections4.6.4(f),5.5, 8.8, 8.9, 8.11, 8.12, 10.1,
10.2and 18.12.1only for matters or circumstances (i)arising during or related to the period that
such transferor was Developer and/or Healthcare Developer hereunder and for the Additional
Liability Periodapplicable theretoand (ii) arising or related to periods subsequent to the Transfer
Date if due to the acts or omissions of Developer or Healthcare Developer, as applicable, and/or
any Developer Affiliate, HCD Affiliate or Developer Representative or for which Developer or
Healthcare Developer may have liability pursuant to Section2.2.2(a) and (b);and
(e)the obligations of Developer (including as Healthcare Property Transferor
or otherwise) or Healthcare Developer, as applicable,under this Agreement or the Other
Agreements which relate to any other portion of the Project that is not subject to such Transfer
and as to which Developer, Healthcare Property Transferoror Healthcare Developer, as
applicable, has not been theretofore released in accordance with this Agreement, if anyand for
the Additional Liability Period applicable thereto.
On-Lot Improvements
“” shall mean dry and wet utility extensions,sidewalks and
drives, walls, fencesand landscaping from the back of curb to and including each Building Pad,
as generally depicted on Attachment29.
Opening of Escrow
“” shall have the meaning set forth in Section4.4.
Original REG Certificate
“” shall have the meaning set forth in Section4.6.2(b).
Other Agreements
“” shall mean the Quitclaim Deed(s), the Special Restrictions, the
Memorandum of DDA, the Slope Parcel EasementandLandscape Installation and Maintenance
Agreement, the License Agreement, the CC&Rs and the DA.
Other Healthcare Parcels
“” shall have the meaning set forth in Section 1.1.7.
Pad Transfer
“” shall mean any Transfer including sale or Ground Lease of the fee
interest in a Building Pad.
Pad Transferee
“” shall mean a Person to whom Developer has Transferred a Building
Pad.
Parcel
“” shall mean either the Retail Parcel or the Healthcare Parcel, individually.
Parcel Map
“” shall have the meaning set forth in Section 1.2.
Parcels
“” shall mean the Retail Parcel and the Healthcare Parcel, collectively.
Parties
“” shall mean the City and Developer, collectively.
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Party
“”shall mean either of the City or Developer, individually, as parties to this
Agreement.
Permitted Exceptions
“” shall have the meaning set forth in Section6.2as may be
modified by Section6.3.
Permitted Mortgage
“” shall mean any indenture of mortgage or deed of trust, bonds,
grant of taxable or tax-exempt funds from a governmental agency or other conveyance of a
security interest in one or more of the Parcel(s), the Property or any portion thereof to a
Permitted Mortgagee or the conveyance of the Property or any portion thereof to the Permitted
Mortgagee or its Successor Owner or purchaser in connection with a Foreclosure which satisfies
all of the criteria set forth in Section2and Section17.
Permitted Mortgage Unpaid Balance
“” shall mean the amount of principal and accrued
and unpaid interest due to the Permitted Mortgagee under the Construction Loan as of to the date
of the close of escrow following the City’s notice toDeveloper whereby the City exercises its
Right of Repurchase under Section16.3or Right of Reversion underSection16.4.
Permitted Mortgagee
“” shall mean a Mortgagee meeting the criteria set forth in
Section17.1.2and accordingly entitled to the Permitted Mortgagee protections provided by this
Agreement. For purposes of any acts under a Permitted Mortgage with respect to and/or
following a Foreclosure thereunder, “Permitted Mortgagee” means such Permitted Mortgagee or
any wholly-owned subsidiary thereof designated by the Permitted Mortgagee to take title to the
foreclosed property. The participation, securitization or assignment of a loan (or any portion
thereof) by a Permitted Mortgagee (acting in an individual capacity or as agent for other lenders)
shall not give rise to any requirement that each lender participating in such participation,
securitization or assignment itself be a Permitted Mortgagee (acting in an individual capacity or
as agent for other lenders), so long as(a)at the inception of the loan, the originating and agent
lender is a Permitted Mortgagee, and(b)at the time of any subsequent assignment of the loan,
the successor owner and agent lender is a Permitted Mortgagee.
Permitted Transfer
“” shall have the meaning set forth in Section2.2.2.
Person
“” shall mean an individual, partnership, limited partnership, trust, estate,
association, corporation, limited liability company, joint venture, firm, joint stock company,
unincorporated association, Governmental Authority, governmental agency or other entity,
domestic or foreign.
PhasesPhasing
“” and “”or similar terms, shall mean, as a noun, a subset of the Project
that relates to all or any portion of the Development Parcels and which is to be developed, at one
time as a distinct component of the Project, and that may be acquired or constructed prior to or
following other components of the Project in accordance with the Schedule of Performance and,
as a verb, the division of the Project into such Phases.
Potential Default
“” shall have the meaning set forth in Section14.1.
Preliminary Title Reports
“” shall have the meaning set forth in Section6.2.
ATTACHMENT 1
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
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September 29, 2015
Prevailing Party
“”shall have the meaning set forth in Section18.2.
Pre-Approved Tenant
“”shall mean, for the Retail Parcel,any of the tenants identified
onAttachment21.
Products
“” shall have the meaning set forth in Section14.3.2.
Prohibited Use
“” shall mean any use, whether by Developer, a Tenant, or any other
entity, which is set forth on Attachment19.
Project
“” shall have the meaning set forth in Section1.3.2.
Project Architect
“” shall mean(a)with respect to the Retail Project, Architects Orange
and(b)with respect to the Healthcare Project, if SNis the Approved Healthcare Developer,
Boulder Associates, Inc.and if not SN, such other architect proposed by an Approved Healthcare
Developer, who shall have experience in designing healthcare facilities similar to those proposed
for the Healthcare Property, and approved by the City.
Project BudgetStatement
“” shall mean a document delivered by Developer to the City
which shows, as of the end of the immediately preceding quarter,(a)the fees paid through the
end of such prior quarter and estimated fees to be paid prior to Completion of the Project in
connection with the development and construction of the Project,(b)out-of-pocket costs spent
through the end of such prior quarter and estimated out-of-pocket costs to be paid prior to
Completion of the Project, in each case for each of the major categories of hard and soft costs for
the development and construction of the Project, and(c)with respect to any Permitted Mortgage,
the remaining available balance under the Construction Loan associated with such Permitted
Mortgage.
Project Fair Share Contribution
“” shall have the meaning set forth in Section8.7.2.
Property
“” shall have the meaning set forth in Section4.1(a).
Proprietary Capacity
“” shall have the meaning set forth in Section18.25.
Purchase Price Deposit
“” shall be an earnest money deposit delivered by Developer to
the City upon execution of the Agreement as described in Section4.3.1.
Qualified Institutional Lender
“” shall mean (a)anationally chartered bank, national
association, federal association bank, savings and loan association, investment bank, state
chartered bank, lending institution, pension fund, insurance company or other institutional lender
which is duly established andin the business of financing the size and type of development
contemplated hereunder, and such term shall include but not be limited to Fannie Mae, Freddie
Mac, FHA, Citibank, Wells Fargo, Union Bank, US Bank, and Bank of America or any other
institutional lender that has a credit rating of at least an “A-”or that has a minimum of Five
Billion Dollars ($5,000,000,000.00) of assets on its most recent balance statement or(b)any
governmental agency or joint powers authority or indentured trustee acting foror on behalf of
such Person.
ATTACHMENT 1
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-20-
September 29, 2015
Quitclaim Deed
“” shall mean the quitclaim deed to be executed and delivered by the
City at each Close of Escrow to quitclaim all of the City’s interests in the Property then to be
conveyed (subject to Section4.1and Section 7and the terms of this Agreement) to Developer.
Each Quitclaim Deed shall be in substantially the form and substance of the deed attached hereto
as Attachment11, acknowledged and in Recordable form.
Reacquired Property
“” shall have the meaning set forth in Section 16.3and shall be
applicable in the case of an election by the City to repurchase pursuant to the Right of
Repurchase or to revest pursuant to the Right of Reversion.
RecordRecordingRecorded
“”, “” and “” shall mean to record the specified instrument,
or the current or past recording of the specified instrument, in the official records of Orange
County California.
Recordable
“” shall mean with respect to any document, that such document has been
acknowledged and is otherwise in a form that would permit the Recording thereof.
REG
“” shall have the meaning set forth in Section1.4.2.
REG Guaranty
“”shall have the meaning set forth in Section4.6.3(a).
Release
“” (with respect to Hazardous Materials) shall mean any releasing, or threat of
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing, or dumping into the environment.
Released PartyReleased Parties
“”and “”shall have the meanings set forth in
Section4.5.2(f).
Releasing Party
“”shall have the meaning set forth in Section4.5.2(f).
RemediateRemediation
“” or“” shall mean any response or remedial action as defined
under Section101(25) of CERCLA, and similar actions with respect to Hazardous Materials as
defined under comparable state and local laws, and any other cleanup, removal, containment,
abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or
other mitigation or remediation of Hazardous Materials or Releases required by any
Environmental Agency or within the purview of any Environmental Laws.
Repurchase Price
“” shall mean (a) a “Land Repurchase Amount”, which as to the
Reacquired Property comprising the Retail Parcel, shall be equal the “Land Repurchase Amount”
for theRetail Parcel set forth on Attachment 24and as to Reacquired Property comprising the
Healthcare Parcel, the “Land Repurchase Amount”for the Healthcare Parcel set forth on
Attachment 24;plus (b) the costs incurred by Developer in construction of the Vertical
Improvementsupon the Reacquired Property,less(ii)the Lien Release Amountswith respect to
the Reacquired Property, provided that if the portion of the land comprising the Reacquired
Property is less than all of the Parcel of which it is a component, the Land Repurchase Amount
for the Reacquired Property shall be determined on a per square foot basis based on the ratio that
the land comprising the Reacquired Property bears to the Parcel of which it is a component as a
ATTACHMENT 1
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-21-
September 29, 2015
whole and reflecting whether or not the Reacquired Property contains any Vertical
Improvements.
Retail Approval End Date
“” shall mean the date of the issuance of the Certificate of
Compliance for the Retail Parcel.
RetailEquity Funding Letter
“” shall have the meaning set forth in Section4.6.2(a).
Retail Horizontal Improvements
“” shall meanrequired in connection with
development, construction and operation of theRetail Project and theOn-Lot Improvements for
the Retail Parcel.
Retail Parcel
“” shall mean that portion of the Development Parcels depicted on
Attachment3to this Agreement as Parcels 1 through 9, inclusive, of Tentative Parcel Map 2015-
127upon which the Retail Uses are proposed to be constructed and operated.
Retail Project
“” shall mean construction and installation of the Retail Improvements on
the Retail Parcel.
Retail Property
“” shall mean the Retail Parcel together with all existing improvements,
if any, presently located thereon, all appurtenances pertaining thereto and all permits, licenses,
approvals and authorizations issued by any Governmental Authority in connection therewith.
Retail Property Base Purchase Price
“” shall have the meaning set forth in
Section4.2.1.
Retail Property Close of Escrow
“” shall mean the Close of Escrow with respect to the
Retail Property.
Retail Property Closing Date
“” shall have the meaning set forth in Section7.1.2.
Retail Property Closing Payment
“” shall have the meaning set forth in Section4.3.4(a).
Retail Property Outside Closing Date
“” shall have the meaning set forth in
Section7.1.2.
Retail Provisions
“” shall have the meaning set forth in Section15(d).
Retail Uses
“” shall mean retail uses including sales of goods or services, restaurants, a
gas station with car wash or similar commercial purposes typically included in neighborhood
commercial shopping centers and containing no Prohibited Uses. Retail Uses may include no
more than four(4) drive-through establishments.
Retail Vertical Improvements
“” shall have the meaning set forth in Section1.3.2(b).
Reuse Plan
“” shall have the meaning set forth in Section1.1.1.
RFP
“” shall have the meaning set forth in Section1.1.5.
ATTACHMENT 1
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-22-
September 29, 2015
Reversion Action Trigger
“” shall have the meaning set forth in Section16.4.1.
Reversion Action Trigger Date
“” shall have the meaning set forth in Section16.4.1.
Reversion Event
“” shall have the meaning set forth in Section16.4.
Right of Repurchase
“” shall have the meaning set forth in Section16.3.
Right of Reversion
“” shall have the meaning set forth in Section16.4.
Schedule of Performance
“” shall mean the document attached as Attachment7to the
Agreement, setting forth the dates and time periods for submissions, approvals and actions,
including the construction and Completion of the Improvementsand shall include both the Retail
Schedule of Performance and the Healthcare Schedule of Performance.
Scope of Development
“” shall mean the description of the Projectand Improvements
attached as Attachment8to the Agreement.
Second Option Payment
“” shall have the meaning set forth in Section7.1.1(b).
SecondOption Term
“” shall have the meaning set forth in Section7.1.1(b).
Second Party
“”shall have the meaning set forth in Section18.7.3.
Site Plan
“” shall mean the site plan attached hereto as Attachment3.
Slope Parcel
“” shall mean that area designated onand exhibit toAttachment25to be
owned and maintained by the City.
Slope Parcel Agreement Confirmation
“” shall have the meaning set forth in
Section7.2.1(a)(iv).
Slope Parcel Easement and Landscape Installation and Maintenance Agreement
“”
shall have the meaning set forth in Section 12.4.
SNPSA
“” means that certain Agreement of Purchase and Sale and Join Escrow
Instructions dated February6, 2015 by andbetween Developer and SN Properties, LLC, a
California limited liability company,as amended by that certain First Amendment to Agreement
of Purchase and Sale and Joint Escrow Instructions dated April7, 2015, as further amended by
that certain Second Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions dated May27, 2015, as further amended by that certain Third Amendment to
Agreement of Purchase and Sale and Joint Escrow Instructions dated June12, 2015, as further
amended by that certain Fourth Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions dated June19,2015, as further amended by that certain Fifth Amendment to
Agreement of Purchase and Sale and Joint Escrow Instructions dated June25, 2015.
Space Lease
“” shall mean each Lease for Retail Use of a portion of an improved
Building located on the Retail Parcel and each Lease for Medical Use or Healthcare Parcel Retail
ATTACHMENT 1
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-23-
September 29, 2015
Use of a portion of an improved Building located on the Healthcare Parcel, but in each case
excluding leases of real property or ground leases.
Special Restrictions
“”shall mean the Declaration of Special Restrictions for Parcel 1C
substantially in the form and substance of the document attached hereto as Attachment20, to be
executed by the City and acknowledged in Recordable form and Recorded against the
Development Parcels at the Retail Property Closeof Escrow immediately prior to the Recording
of the Quitclaim Deed.
Specific Plan
“” shall mean the MCAS Tustin Specific Plan/Reuse Plan as the same has
been or shall be amended from time to time.
State
“” shall mean the State of California.
Successor Owner
“”shall mean(a)with respect to a Transfer of the Development Parcels
or any portion thereof, each and every Person owning or acquiring fee title to or having a Ground
Lease interest in all or any portion of such Property, (including with respectto the Transfer of the
Healthcare Parcel by Developer to Healthcare Developer, the Healthcare Developer) and(b)with
respect to the City Benefitted Property, each and every Person owning or acquiring fee title to all
or any portion of the City BenefittedProperty.
Supplemental Title Report
“” shall have the meaning set forth in Section6.3.
Survey
“” shall have the meaning set forth in Section6.1.
Surveyor
“” shall have the meaning set forth in Section6.1.
Tax A
“” shall have the meaning set forth in Section8.7.
Tax B
“” shall have the meaning set forth in Section8.7.3.
Tenant
“” shall mean any Person who Leases any land and/or space on the Development
Parcels and thereunder operates (or is constructing improvements with the intent to operate)
Retail Uses, Healthcare Parcel Retail Usesor Medical Uses in such space.
Title Company
“” shall mean First American Title Insurance Company.
Transfer
“” shall mean(a)the transfer, sale, assignment, lease, license, entry into a
property management agreement, gift, hypothecation, mortgage, pledge or encumbrance, or other
similar conveyance by Developer or Healthcare Developer, as the case may be, of this
Agreement, the Project, the Property and/or the Improvements thereon, or any portion thereof or
interest therein, including a Pad Transferor Lease, whether voluntary, involuntary, by operation
of law or otherwise, or any agreement to do so; and(b)the granting by Developer or Healthcare
Developer of any Mortgage, easement, license, lien or other encumbrance and/or the execution
of any installment land sale contract or similar instrument affecting this Agreement or all or a
portion of the Project, the Property, the Improvements thereon, or any portion thereof or interest
therein and shall also include Transfer of Control of Developer or Healthcare Developer, as the
case may be, or any conversion of Developer of Healthcare Developer to an entity form other
ATTACHMENT 1
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-24-
September 29, 2015
than that of Developer or Healthcare Developer, as applicable, at the time of execution of this
Agreement.
Transfer Approval End Date
“” shall mean(a)with respect to the Retail Parcel, the
Retail Approval End Date, and(b)with respect to the Healthcare Parcel,the date of Recording of
a Certificate of Compliance with respect to the Healthcare Parcel.
Transferable Products
“” shall have the meaning set forth in Section14.3.2.
Transfer of Control
“” shall mean, with respect to Developer or Developer’s Controlling
Person, the occurrence, directly or indirectly, in a single transaction or a series of transactions, of
any of the following:
(a)the conveyance, sale, assignment, transfer or disposition of all or
substantially all of that Person’s (or its Controlling Person’s) assets, stock, membership or
partnership interests or other equity interests;
(b)the dissolution, merger, reorganization, share exchange, recapitalization,
restructuring or consolidation of that Person (or its Controlling Person), other than a transaction
that would result in all of the voting securities of that Person (or its Controlling Person)
outstanding immediately prior thereto to continue to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) at least 50.01% of the
combined voting power of all of the voting securities of that Person (or its Controlling Person) or
such surviving entity outstanding immediately after such transaction; and
(c)the acquisition by any “Person” or “Group” (within the meaning of
Sections13(d) and 14(d)(2) of the Securities Exchange Act of 1934) of an aggregate of 50.01%
or more of the beneficial ownership (within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934) of the issued and outstanding voting securities or other equity interests of
that Person (or its Controlling Person), where such acquiring “Person” or “Group” did not
directly or indirectly (or through an affiliate) already Control or own at least 50.01% of the
voting securities or other equity interests of such Person (or its Controlling Person).
Transferee
“” shall mean any Person to which a Transfer is made, including any
Successor Owner or Mortgagee and any Pad Transfereeor Tenant under a Ground Lease.
Tustin Legacy
“” shall have the meaning set forth in Section1.1.3.
Tustin Legacy Backbone Infrastructure Program
“” shall have the meaning set forth in
Section8.7.1.
Updated REG Certificate
“”shall have the meaning set forth in Section4.6.3(a)(iii).
Vertical Improvements
“” shall mean all of the Buildings, landscaping and other
improvements, other than the Horizontal Improvements, to be constructed or installed on the
Property,as further described in Section1.3.2(b),consistent with the Specific Plan, the Reuse
Plan, the Approved Plans, the Entitlements,the Development Permitsandall Governmental
Requirements.
ATTACHMENT 1
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-25-
September 29, 2015
ATTACHMENT 2A
LEGAL DESCRIPTION OF DEVELOPMENT PARCELS
LOT 1 AND THAT PORTION OF LOT Y OF TRACT NO. 17404, IN THE CITY OF TUSTIN, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 907, PAGES 6 TO 42, INCLUSIVE, OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND AS
AMENDED BY CERTIFICATES OF CORRECTION RECORDED JULY 17, 2013 AS INSTRUMENT NO. 2013-
000428385, AND RECORDED ON FEBRUARY 26, 2015 AS INSTRUMENT NO. 2015-000102478, BOTH OF
OFFICIAL RECORDS OF SAID COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
AT THE MOST WESTERLY CORNER OF SAID LOT 1 BEING IN THE SOUTHEASTERLY LINE OF
BEGINNING
KENSINGTON PARK DRIVE AS SHOWN ON SAID MAP, THENCE ALONG THE NORTHWESTERLY LINE OF
SAID LOT 1 AND SAID SOUTHEASTERLY LINE THE FOLLOWING 8 COURSES:
1)NORTH 40°39'15" EAST 199.34 FEET TO THE BEGINNING OF A TANGENT 1,452.04 FOOT
RADIUS CURVE CONCAVE NORTHWESTERLY;
2)THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 141.74
FEET THROUGH A CENTRAL ANGLE OF 05°35'35" TO THE BEGINNING OF A COMPOUND
1,046.68 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY;
3)THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 133.80
FEET THROUGH A CENTRAL ANGLE OF 07°19'27";
4)THENCE NORTH 27°44'13" EAST 150.84 FEET TO THE BEGINNING OF A TANGENT 960.03
FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY;
5)THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 20.67 FEET
THROUGH A CENTRAL ANGLE OF 01°14'00";
6)THENCE NORTH 28°58'13" EAST 302.90 FEET TO THE BEGINNING OF A TANGENT 1,354.04
FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY;
7)THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 276.12
FEET THROUGH A CENTRAL ANGLE OF 11°41'02";
8)THENCE NORTH 40°39'15" EAST 114.24 FEET TO THE NORTHERLY LINE OF SAID LOT 1;
THENCE ALONG SAID NORTHERLY LINE AND THE NORTHERLY LINE OF SAID LOT Y, NORTH 85°39'14"
EAST 36.77 FEET TO THE NORTHEASTERLY LINE OF SAID LOT Y;
THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 49°20'45" EAST 21.00 FEET TO THE BEGINNING OF A
TANGENT 41.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY;
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE, SOUTHEASTERLY ALONG THE ARC OF SAID
CURVE AN ARC DISTANCE OF 6.77 FEET THROUGH A CENTRAL ANGLE OF 09°27'43";
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ATTACHMENT 2A
LEGAL DESCRIPTION OF DEVELOPMENT PARCELS
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE, SOUTH 39°53'02" EAST 52.56 FEET TO THE
BEGINNING OF A TANGENT 59.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY;
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE, SOUTHEASTERLY ALONG THE ARC OF SAID
CURVE AN ARC DISTANCE OF 9.74 FEET THROUGH A CENTRAL ANGLE OF 09°27'43";
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE AND ITS SOUTHEASTERLY PROLONGATION
THEREOF, SOUTH 49°20'45" EAST 253.94 FEET;
THENCE NORTH 40°39'14" EAST 5.82 FEET TO AN ANGLE POINT IN SAID NORTHEASTERLY LINE;
THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 50°39'44" EAST 307.15 FEET;
THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 31°38'44" WEST 31.02 FEET TO THE BEGINNING OF
A NON-TANGENT 50.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, A RADIAL TO WHICH BEARS
NORTH 15°57'31" EAST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 66.17 FEET THROUGH
A CENTRAL ANGLE OF 75°49'20";
THENCE SOUTH 30°08'10" WEST 142.55 FEET TO THE BEGINNING OF A NON-TANGENT 12,601.00 FOOT
RADIUS CURVE CONCAVE SOUTHEASTERLY, A RADIAL TO WHICH BEARS NORTH 59°02'54" WEST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 387.19 FEET THROUGH
A CENTRAL ANGLE OF 01°45'38";
THENCE SOUTH 40°55'55" WEST 102.25 FEET;
THENCE SOUTH 28°34'34" WEST 217.12 FEET;
THENCE SOUTH 30°09'46" WEST 58.74 FEET TO THE BEGINNING OF A 76.50 FOOT RADIUS CURVE
CONCAVE NORTHWESTERLY;
THENCE SOUTHWESTERLY ALONG SAID CURVE, 16.01 FEET THROUGH A CENTRAL ANGLE OF 11°59'24";
THENCE SOUTH 81°42'07" WEST 9.61 FEET;
THENCE SOUTH 44°04'22" WEST 29.79 FEET TO THE BEGINNING OF A TANGENT 183.50 FOOT RADIUS
CURVE CONCAVE SOUTHEASTERLY;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 34.27 FEET THROUGH
A CENTRAL ANGLE OF 10°42'07" TO THE BEGINNING OF A REVERSE 1,754.50 FOOT RADIUS CURVE
CONCAVE NORTHWESTERLY, A RADIAL TO WHICH BEARS SOUTH 56°37'45" EAST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 117.75 FEET THROUGH
A CENTRAL ANGLE OF 03°50'43";
THENCE SOUTH 50°36'47" WEST 24.81 FEET;
THENCE SOUTH 46°51'57" EAST 8.90 FEET;
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ATTACHMENT 2A
LEGAL DESCRIPTION OF DEVELOPMENT PARCELS
THENCE SOUTH 43°08'03" WEST 28.50 FEET;
THENCE NORTH 46°51'57" WEST 9.00 FEET;
THENCE SOUTH 43°08'03" WEST 63.24 FEET;
THENCE SOUTH 43°47'30" WEST 30.69 FEET;
THENCE SOUTH 49°20'15" EAST 25.00 FEET;
THENCE SOUTH 40°39'15" WEST 32.91 FEET;
THENCE NORTH 82°10'21" WEST 7.02 FEET;
THENCE SOUTH 40°39'15" WEST 14.97 FEET TO THE MOST SOUTHERLY CORNER OF SAID LOT Y;
THENCE ALONG THE SOUTHWESTERLY LINE OF SAID LOT Y, NORTH 49°20'45" WEST 48.15 FEET TO THE
BEGINNING OF A TANGENT 65.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY;
THENCE LEAVING SAID SOUTHWESTERLY LINE, NORTHWESTERLY ALONG THE ARC OF SAID CURVE AN
ARC DISTANCE OF 19.87 FEET THROUGH A CENTRAL ANGLE OF 17°30'51" TO THE BEGINNING OF A
REVERSE 86.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, A RADIAL TO WHICH BEARS NORTH
58°10'06" EAST;
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 26.29 FEET THROUGH
A CENTRAL ANGLE OF 17°30'51" TO A LINE PARALLEL WITH AND 7.00 FEET NORTHEASTERLY OF SAID
SOUTHWESTERLY LINE OF LOT Y;
THENCE ALONG SAID PARALLEL LINE, NORTH 49°20'45" WEST 136.30 FEET;
THENCE LEAVING SAID PARALLEL LINE, NORTH 48°07'44" WEST 47.08 FEET TO A LINE PARALLEL WITH
AND 8.00 FEET NORTHEASTERLY OF SAID SOUTHWESTERLY LINE OF LOT Y;
THENCE ALONG SAID PARALLEL LINE, NORTH 49°20'45" WEST 188.60 FEET;
THENCE LEAVING SAID PARALLEL LINE, SOUTH 80°35'42" WEST 10.43 FEET TO SAID SOUTHWESTERLY
LINE;
THENCE ALONG SAID SOUTHWESTERLY LINE, NORTH 49°20'45" WEST 164.81 FEET TO THE NORTHWEST
CORNER OF SAID LOT Y;
THENCE ALONG THE WESTERLY LINE OF SAID LOT Y, NORTH 04°20'45" WEST 38.18 FEET TO THE
POINT
OF BEGINNING.
CONTAINING 911,297 SQUARE FEET, MORE OR LESS.
MICHAEL JAMES KNAPTON
P.L.S.8012 Revised: 9/2/2015
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LEGAL DESCRIPTION OF DEVELOPMENT PARCELS (PLOT)
C-101
LUISGOMEZ@REGENCYCENTERS.COM
TENTATIVE PARCEL MAP
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
H
T
R
O
N
(9.65 acres)
HEALTHCARE PARCEL
DEPICTION OF HEALTHCARE PARCEL AND RETAIL PARCEL
HEALTHCARE PARCEL
ATTACHMENT 3 - PARCEL MAP
RETAIL PARCEL
ATTACHMENT 2B
RETAIL PARCEL (11.27 acres)
C-101
LUISGOMEZ@REGENCYCENTERS.COM
TENTATIVE PARCEL MAP
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
H
T
R
O
N
Attachment 3 - Site Plan, Subdivision and Building Pad Plan & Common Area
ATTACHMENT 3 - PARCEL MAP
Common Area
ATTACHMENT4
PRELIMINARYTITLEREPORT
Chicago Title Company
4210 Riverwalk Parkway,Suite 100,Riverside, CA 92505Phone: (951) 710-5900Fax:
Issuing Policies of Chicago Title Insurance Company
00019139-002-KP(949) 724-3100
ORDER NO.: Escrow/Customer Phone:
John Balassi
Chicago Title CompanyTitle Officer:
(951) 710-5903
4041 MacArthur Blvd.400Title Officer Phone:
(951) 710-5955
Newport Beach, CA 92660Title Officer Fax:
BalassiJ@ctt.com
ATTN: Karen L. PriceTitle OfficerEmail:
Email: karen.price@ctt.com
VACANT LAND,TUSTIN, CA
PROPERTY:
th
10 PRELIMINARY REPORT
In response to the application for a policy of title insurance referenced herein, Chicago Title Companyhereby reportsthat it
is prepared to issue, or cause to be issued, as of the date hereof, a policy or policies of title insurance describing the land and
the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of anydefect, lien
or encumbrance not shown or referred to as an exception herein or not excluded from coverage pursuant to the printed
Schedules, Conditions and Stipulations or Conditions of said policy forms.
The printed Exceptions and Exclusions from the coverage and Limitations on Covered Risks of said policy or policies are set
forth in Attachment One. The policy to be issued may contain an arbitration clause. When the Amount of Insurance is less
than that set forth in the arbitration clause, all arbitrablematters shall be arbitrated at the option of either the Company or
the Insured as the exclusive remedy of the parties. Limitations on Covered Risks applicable to the CLTA and ALTA
Homeowner’s Policies of Title Insurance which establish a Deductible Amountand a Maximum Dollar Limit of Liability for
certain coverages are also set forth in Attachment One. Copies of the policy forms should be read. They are available from
the office which issued this report.
This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a
policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a
policy of title insurance, a Binder or Commitment should be requested.
The policy(s) of title insurance to be issued hereunder will be policy(s) of Chicago Title Insurance Company, a Nebraska
Corporation.
Please read the exceptions shown or referred to herein and the exceptions and exclusions set forth in Attachment One of
this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered
under the terms of the title insurance policy and should be carefully considered.
It is important to note that this preliminary report is not a written representation as to the condition of title and may not
list all liens, defects and encumbrances affecting title to the land.
Countersigned:
By:
Authorized Signature
CLTA Preliminary Report Form – Modified (11/17/06)Page 1
ATTACHMENT 4
PAGE 1 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
th
10 PRELIMINARY REPORT
SCHEDULE A
EFFECTIVE DATE:August 13, 2015at 7:30 a.m., Amended September 4, 2015, Amended No. 10
The form of policy or policies of title insurance contemplated by this report is:
Std. Owner's Policy
1.THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED
BY THIS REPORT IS:
A FEE
2.TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
THE CITY OF TUSTIN, CALIFORNIA, California, a Municipal Corporation
3.THE LAND REFERRED TO IN THIS REPORT IS DESCRIBED AS FOLLOWS:
See Exhibit A attached hereto and made a part hereof.
CLTA Preliminary Report Form – Modified (11/17/06)Page 2
ATTACHMENT 4
PAGE 2 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
, IN THE CITY OF TUSTIN, COUNTY OF ORANGE,
LOT 1 AND THAT PORTION OF LOT Y OF TRACT NO. 17404
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 907, PAGES 6 TO 42, INCLUSIVE, OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND AS
AMENDED BY CERTIFICATES OF CORRECTION RECORDED JULY 17, 2013 AS INSTRUMENT NO. 2013-
000428385, AND RECORDED ON FEBRUARY 26, 2015 AS INSTRUMENT NO. 2015-000102478, BOTH OF
OFFICIAL RECORDS OF SAID COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT 1 BEING IN THE SOUTHEASTERLY LINE OF
KENSINGTON PARK DRIVE AS SHOWN ONSAID MAP,
THENCE ALONG THE NORTHWESTERLY LINE OF SAID LOT 1 AND SAID SOUTHEASTERLY LINE THE
FOLLOWING 8 COURSES:
1) NORTH 40°39'15" EAST 199.34 FEET TO THE BEGINNING OF A TANGENT 1,452.04 FOOT RADIUS CURVE
CONCAVE NORTHWESTERLY;
2) THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 141.74 FEET
THROUGH A CENTRAL ANGLE OF 05°35'35" TO THE BEGINNING OF A COMPOUND 1,046.68 FOOT RADIUS
CURVE CONCAVE NORTHWESTERLY;
3) THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 133.80 FEET
THROUGH A CENTRAL ANGLE OF 07°19'27";
4) THENCE NORTH 27°44'13" EAST 150.84 FEET TO THE BEGINNING OF A TANGENT 960.03 FOOT RADIUS
CURVE CONCAVE SOUTHEASTERLY;
5) THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 20.67 FEET
THROUGH A CENTRAL ANGLE OF 01°14'00";
6) THENCE NORTH 28°58'13" EAST 302.90 FEET TO THE BEGINNING OF A TANGENT 1,354.04 FOOT RADIUS
CURVE CONCAVE SOUTHEASTERLY;
7) THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 276.12 FEET
THROUGH A CENTRAL ANGLE OF 11°41'02";
8) THENCE NORTH 40°39'15" EAST 114.24 FEET TO THE NORTHERLY LINE OF SAID LOT 1; THENCE ALONG
SAID NORTHERLY LINE AND THE NORTHERLY LINE OF SAID LOT Y, NORTH 85°39'14" EAST 36.77 FEET TO
THE NORTHEASTERLY LINE OF SAID LOT Y;
THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 49°20'45" EAST 21.00 FEET TO THE BEGINNING OF A
TANGENT 41.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY;
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE, SOUTHEASTERLY ALONG THE ARC OF SAID
CURVE AN ARC DISTANCE OF6.77 FEET THROUGH A CENTRAL ANGLE OF 09°27'43";
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE, SOUTH 39°53'02" EAST 52.56 FEET TO THE
BEGINNING OF A TANGENT 59.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY;
CLTA Preliminary Report Form – Modified (11/17/06)Page 3
ATTACHMENT 4
PAGE 3 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
EXHIBIT A
(Continued)
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE, SOUTHEASTERLY ALONG THE ARC OF SAID
CURVE AN ARC DISTANCE OF 9.74 FEET THROUGH A CENTRAL ANGLE OF 09°27'43";
THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE AND ITS SOUTHEASTERLY PROLONGATION
THEREOF, SOUTH 49°20'45" EAST 253.94 FEET;
THENCE NORTH 40°39'14" EAST 5.82 FEET TO AN ANGLE POINT IN SAID NORTHEASTERLY LINE; THENCE
ALONG SAID NORTHEASTERLY LINE SOUTH 50°39'44" EAST 307.15 FEET;
THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 31°38'44" WEST 31.02 FEET TO THE BEGINNING OF
A NON-TANGENT 50.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, A RADIAL TO WHICH BEARS
NORTH 15°57'31" EAST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 66.17 FEET THROUGH
A CENTRAL ANGLE OF 75°49'20";
THENCE SOUTH 30°08'10" WEST 142.55 FEET TO THE BEGINNINGOF A NON-TANGENT 12,601.00 FOOT
RADIUS CURVE CONCAVE SOUTHEASTERLY, A RADIAL TO WHICH BEARS NORTH 59°02'54" WEST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 387.19 FEET THROUGH
A CENTRAL ANGLE OF 01°45'38";
THENCE SOUTH 40°55'55" WEST 102.25 FEET;
THENCE SOUTH 28°34'34" WEST 217.12 FEET;
THENCE SOUTH 30°09'46" WEST 58.74 FEET TO THE BEGINNING OF A 76.50 FOOT RADIUS CURVE CONCAVE
NORTHWESTERLY;
THENCE SOUTHWESTERLY ALONG SAID CURVE, 16.01 FEET THROUGH A CENTRAL ANGLE OF 11°59'24";
THENCE SOUTH 81°42'07" WEST 9.61 FEET;
THENCE SOUTH 44°04'22" WEST 29.79 FEET TO THE BEGINNING OF A TANGENT 183.50 FOOT RADIUS
CURVE CONCAVE SOUTHEASTERLY;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 34.27 FEET THROUGH
A CENTRAL ANGLE OF 10°42'07" TO THE BEGINNING OF A REVERSE 1,754.50 FOOT RADIUS CURVE
CONCAVE NORTHWESTERLY, A RADIAL TO WHICH BEARS SOUTH 56°37'45" EAST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 117.75 FEET THROUGH
A CENTRAL ANGLE OF 03°50'43";
THENCE SOUTH 50°36'47" WEST 24.81 FEET;
THENCE SOUTH 46°51'57" EAST 8.90 FEET;
THENCE SOUTH 43°08'03" WEST 28.50 FEET;
THENCE NORTH 46°51'57" WEST 9.00 FEET;
THENCE SOUTH 43°08'03" WEST 63.24 FEET;
THENCE SOUTH 43°47'30" WEST 30.69 FEET;
CLTA Preliminary Report Form – Modified (11/17/06)Page 4
ATTACHMENT 4
PAGE 4 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
EXHIBIT A
(Continued)
THENCE SOUTH 49°20'15" EAST 25.00 FEET;
THENCE SOUTH 40°39'15" WEST 32.91 FEET;
THENCE NORTH 82°10'21" WEST 7.02 FEET;
THENCE SOUTH 40°39'15" WEST 14.97 FEET TO THE MOST SOUTHERLY CORNER OF SAID LOT Y; THENCE
ALONG THE SOUTHWESTERLY LINE OF SAID LOT Y, NORTH 49°20'45" WEST 48.15 FEET TO THE BEGINNING
OF A TANGENT 65.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY;
THENCE LEAVING SAID SOUTHWESTERLY LINE, NORTHWESTERLY ALONG THE ARC OF SAID CURVE AN
ARC DISTANCE OF 19.87 FEET THROUGH A CENTRAL ANGLE OF 17°30'51" TO THE BEGINNING OF A
REVERSE 86.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, A RADIAL TO WHICH BEARS NORTH
58°10'06" EAST;
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 26.29 FEET THROUGH
A CENTRAL ANGLE OF 17°30'51" TO A LINE PARALLEL WITH AND 7.00 FEET NORTHEASTERLY OF SAID
SOUTHWESTERLY LINE OF LOT Y;
THENCE ALONG SAID PARALLEL LINE, NORTH 49°20'45" WEST 136.30 FEET;
THENCE LEAVING SAID PARALLEL LINE, NORTH 48°07'44" WEST 47.08 FEET TO A LINE PARALLEL WITH
AND 8.00 FEET NORTHEASTERLY OF SAID SOUTHWESTERLY LINE OF LOT Y;
THENCE ALONG SAID PARALLEL LINE, NORTH 49°20'45" WEST 188.60 FEET;
THENCE LEAVING SAID PARALLEL LINE, SOUTH 80°35'42" WEST 10.43 FEET TO SAID SOUTHWESTERLY
LINE;
THENCE ALONG SAID SOUTHWESTERLY LINE, NORTH 49°20'45" WEST 164.81 FEET TO THE NORTHWEST
CORNER OF SAID LOT Y;
THENCE ALONG THE WESTERLY LINE OF SAID LOT Y, NORTH 04°20'45" WEST 38.18 FEET TO THE POINT OF
BEGINNING.
NOTE: SAID LAND IS DESCRIBED ABOVE BASED UPON A LEGAL DESCRIPTION PROVIDED TO THIS
COMPANY AND IS NOT A LEGAL DESCRIPTION OF RECORD BUT IS ONLY USED HEREIN TO FACILITATE
THE ISSUANCE OF THIS PRELIMINARY REPORT.
CLTA Preliminary Report Form – Modified (11/17/06)Page 5
ATTACHMENT 4
PAGE 5 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
SCHEDULE B
EXCEPTIONS
AT THE DATE HEREOF, ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION
TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN SAID POLICY FORM WOULD BE AS FOLLOWS:
A.This exception has been intentionally deleted
B.Said land is shown as exempt on the OrangeCounty Tax Roll for the fiscal year 2014-2015.
Tax Identification Nos.:430-391-18and 430-391-39
C.The lien of supplemental or escaped assessments of property taxes, if any, made pursuant to the provisions of Part
0.5, Chapter 3.5 or Part 2, Chapter 3, Articles 3 and 4 respectively (commencing with Section 75) of the Revenue
and Taxation Code of the State of California as a result of the transfer of title to the vestee named in Schedule A; or
as a result of changes inownership or new construction occurring prior to date of policy.
D.The herein described property lies within the boundaries of a Mello-Roos Community Facilities District (CFD) as
follows:
CFD No:13-01
Disclosed by:Notice of Special Tax Lien
Recorded: May 16, 2013 as Instrument No. 2013000296640of Official Records
This property, along with all other parcels in the CFD, is liable for an annual special tax. This special tax is included
with and payable with the general property taxes of the County of Orange. The tax may not be prepaid.
1. Water rights, claims or title to water, whether ornot disclosed by the public records.
2. Easements, Covenants and Conditions contained in the deed from The United States of America, as Grantor, to The
of Official Records.
City of Tustin, California, as Grantee, recorded May 14, 2002 as Instrument No. 20020404598
Reference being made to the document for full particulars, but deleting any covenant, condition, or restriction
indicating a preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status, or
national origin, tothe extent such covenants, conditions or restrictions violate 42 U.S.C. §3604(c) or applicable state
law. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older
persons shall not be construed as restrictions based on familial status.
3. A notice that said Land is included within a project area of the Redevelopment Agency shown below, and that
proceedings for the redevelopment of said project have been instituted under the Redevelopment Law (such
redevelopment to proceed only after the adoption of the redevelopment plan) as disclosed by a document
Instrument No.
Recorded: June 18, 2003 as Instrument No. 2003000710836and March 28, 2007 as
2007000197041, both of Official Records
Redevelopment Agency:City of Tustin
4. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document:
Granted to:Southern California Edison Company
Purpose:Underground electrical supply systems and communication systems
of Official Records
Recorded: January 10, 2007 as Instrument No. 2007000016377
Affects:a portion of said land
CLTA Preliminary Report Form – Modified (11/17/06)Page 6
ATTACHMENT 4
PAGE 6 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
SCHEDULE B – EXCEPTIONS
(Continued)
5. Any rights, interests, or claims which may exist or arise by reason of the following matters disclosed by survey,
Job No.:W. O. 3999-X
Dated:July 7, 2015
Prepared by:Hunsaker & Associates
Matters shown:As follows:
1)The fact that a chain link fence traversesand meanders around the boundaries of the property herein described.
2)The fact that a concrete pad and grate inlet exist on the southwesterly corner of said land.
6. Any rights of parties in possession of said land, based on any unrecorded lease, or leases.
This Company will require a full copy of any unrecorded lease, together with all supplements, assignments, and
amendments for review.
7. This exception has been intentionally deleted
8. This exception has been intentionally deleted
9. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document:
In favor of: Southern California Edison Company, a corporation
Purpose: Underground electrical supply systems, communications systems
Recording Date: October 2, 2013
Recording No: as Instrument No. 2013000565282, of Official Records
Affects:A portion of Lot Y,
END OF ITEMS
CLTA Preliminary Report Form – Modified (11/17/06)Page 7
ATTACHMENT 4
PAGE 7 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
NOTES
Note 1:Section 12413.1, California Insurance Code became effective January 1, 1990. This legislation regulates the
disbursement of funds deposited with any title entityacting in an escrow or sub-escrow capacity. The law requires
that all funds be deposited and collected by the title entity’s escrow and/or sub-escrow account prior to disbursement
of any funds. Some methods of funding may be subject to a holding period, which must expire before any funds may
be disbursed. In order to avoid any such delays, all funding should be done via wire transfer. Funds deposited with
the Company via wire transfer may be disbursed upon receipt. Funds deposited by cashiers checks, certified checks,
and teller’s checks is one business day after the day deposited. Other checks may require hold periods from two to
five business days after the day deposited, and may delay your closing. The Company may receive benefits from
such banks based upon the balances in such accounts. Such benefits will be retained by the Company as part of its
compensation for handling such funds.
Note 2:The charge where an order is cancelled after the issuance of the report of title, will be that amount which in the
opinion of the Company is proper compensation for the services rendered or the purpose for which the report is
used, but in no event shall said charge be less that the minimum amount required under Section 12404.1 of the
Insurance Code of the State of California. If the report cannot be cancelled “no fee” pursuant to the provisions of
said Insurance Code, then the minimum cancellation fee shall be that permitted by law.
Note 3:California Revenue and Taxation Code Section 18668, effective January 1, 1991, requires that the buyer in all sales
of California Real Estate, withhold 3-1/3% of the total sales price as California State Income Tax, subject to the
various provisions of the law as therein contained, and as amended.
Note 4:Your application for title insurance was placed by reference to a street address or assessor’s parcel number. Based
upon our records, we believe that the description in this report covers the parcel that you requested.
To prevent errors, we require written confirmation that the legaldescription contained herein covers the parcel that
you requested.
Note 5:The plat, (map), which is attached to this report, is to assist you in locating land with reference to streets and other
parcels. While this plat is believed to be correct, the Company assumes no liability for any loss occurring by reason
of reliance thereon.
Note 6:The policy of title insurance will include an arbitration provision. The Company or the insured may demand
arbitration. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company
and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance
or the breach of a policy provision or other obligation. Please ask your escrow or title officer for a sample copy of
the policy to be issued if you wish to review the arbitration provisions and any other provisions pertaining to your
Title Insurance coverage.
Note 7:The policy to be issued may contain an arbitration clause. When the Amount of Insurance is less than the amount, if
any, set forth in the arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or
the Insured as the exclusive remedy of the parties.
CLTA Preliminary Report Form – Modified (11/17/06)Page 8
ATTACHMENT 4
PAGE 8 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
NOTES
(Continued)
Note 8:Acceptance of the offer toinsure provided for in this preliminary report constitutes the proposed insured’s
agreement that the sole and only liability of the company (and the title insurer) related to their actions in recording
the documents provided to it for the closing of the contemplated transaction and the disbursing of funds acting in
the function of a subescrow shall be that contained in the policy of title insurance that is to be issued by the
company. The proposed insured understands and agrees that neither the underwritten company nor the title
insurance company can guarantee or represent the condition or status of title or any physical condition existant with
respect to real property. It is understood that no writing or instruction inconsistent with this understanding will have
any force or effect or impose any liability against the underwritten company or the title insure in the contemplated
transaction.
END OF NOTES
John Balassi (IE/Comm)/jh2
CLTA Preliminary Report Form – Modified (11/17/06)Page 9
ATTACHMENT 4
PAGE 9 of 18
Fidelity National Financial, Inc.
Privacy Statement
Fidelity National Financial, Inc. and its subsidiaries (“FNF”) respect the privacy and security of your non-public personal information (“Personal
Information”) and protecting your Personal Information is one of our top priorities. This Privacy Statement explains FNF’s privacy practices,
including how we use the Personal Information we receive from you and from other specified sources, and to whom it may be disclosed. FNF follows
the privacy practices described in this Privacy Statement and, depending on the business performed, FNF companies may share information as
described herein.
Personal Information Collected
We may collect Personal Information about you from the following sources:
Information we receive from you on applications or other forms, such as your name, address, social security number, tax identification
number, asset information, and income information;
Information we receive from you through our Internet websites, such as your name, address, email address, Internet Protocol address, the
website links you used to get to our websites, and your activity while using or reviewing our websites;
Information about your transactions with or services performed by us, our affiliates, or others, such as information concerning your policy,
premiums, payment history, information about your home or other real property, information from lenders and other third parties involved
in such transaction, account balances, and credit card information; and
Information we receive from consumer or other reporting agencies and publicly recorded documents.
Disclosure of Personal Information
We may provide your Personal Information (excluding information we receive from consumer or other credit reporting agencies) to various
individuals and companies, as permitted by law, without obtaining your prior authorization. Such laws do not allow consumers to restrict these
disclosures. Disclosures may include, without limitation, the following:
To insurance agents, brokers, representatives, support organizations, or others to provide you with services you have requested, and to
enable us to detect or prevent criminal activity, fraud, material misrepresentation, or nondisclosure in connection with an insurance
transaction;
To third-party contractors or service providers for the purpose of determining your eligibility for an insurance benefit or payment and/or
providing you with services you have requested;
To an insurance regulatory authority, or a law enforcement or other governmental authority, in a civil action, in connection with a subpoena
or a governmental investigation;
To companies that perform marketing services on our behalf or to other financial institutions with which we have joint marketing
agreements and/or
To lenders, lien holders, judgment creditors, or other parties claiming an encumbrance or an interest in title whose claim or interest must be
determined, settled, paid or released prior to a title or escrow closing.
We may also disclose your Personal Information to others when we believe, in good faith, that such disclosure is reasonablynecessary to comply
with the law or to protect the safety of our customers, employees, or property and/or to comply with a judicial proceeding, court order or legal
process.
Disclosure to Affiliated Companies – We are permitted by law to share your name, address and facts about your transaction with other FNF
companies, such as insurance companies, agents, and other real estate service providers to provide you with services you haverequested, for
marketing or product development research, or to market products or services to you. We do not, however, disclose information we collect from
consumer or credit reporting agencies with our affiliates or others without your consent, in conformity with applicable law, unless such disclosure is
otherwise permitted bylaw.
Disclosure to Nonaffiliated Third Parties – We do not disclose Personal Information about our customers or former customers to nonaffiliated third
parties, except as outlined herein or as otherwise permitted by law.
Confidentiality and Security of Personal Information
We restrict access to Personal Information about you to those employees who need to know that information to provide productsor services to you.
We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard Personal Information.
Access to Personal Information/Requests for Correction, Amendment, or Deletion of Personal Information
As required by applicable law, we will afford you the right to access your Personal Information, under certain circumstances to find out to whom
your Personal Information has been disclosed, and request correction or deletion of your Personal Information. However, FNF’s current policy is to
maintain customers’ Personal Information for no less than your state’s required record retention requirements for the purpose of handling future
coverage claims.
For your protection, all requests made under this section must be in writing and must include your notarized signature to establish your identity.
Where permitted by law, we may charge a reasonable fee to cover the costs incurred in responding to such requests. Please send requests to:
Chief Privacy Officer
Fidelity National Financial, Inc.
601 Riverside Avenue
Jacksonville, FL 32204
Changes to this Privacy Statement
This Privacy Statement may be amended from time to time consistent with applicable privacy laws. When we amend this Privacy
Statement, we will post a notice of such changes on our website. The effective date of this Privacy Statement, as stated above,
indicates the last time this Privacy Statement was revised or materially changed.
ATTACHMENT 4
Privacy Policy Effective Date: 5/1/2008
PAGE 10 of 18
Notice of Available Discounts
Pursuant to Section 2355.3 in Title 10 of the California Code of Regulations Fidelity National Financial, Inc. and its
subsidiaries (“FNF”) must deliver a notice of each discount available under our current rate filing along with the delivery of
escrow instructions, a preliminary report or commitment. Please be aware that the provision of this notice does not constitute
a waiver of the consumer’s rightto be charged the field rate. As such, your transaction may not qualify for the below
discounts.
You are encouraged to discuss the applicability of one or more of the below discounts with a Company representative. These
discounts are generally described below; consult the rate manual for a full description of the terms, conditions and
requirements for each discount. These discounts only apply to transaction involving services rendered by the FNF Family of
Companies. This notice only applies to transactionsinvolving property improved with a one-to-four family residential
dwelling.
FNF Underwritten Title CompanyFNF Underwriter
CTC -Chicago Title CompanyCTIC -Chicago Title Insurance Company
Available Discounts
CREDIT FOR PRELIMINARY REPORTS AND/OR COMMITMENTS ON SUBSEQUENT POLICIES (CTIC)
Where no major change in the title has occurred since the issuance of the original report or commitment, the order may be
reopened within 12 months and all or a portion of the charge previously paid for the report or commitment may be credited
on a subsequent policy charge within the following time period from the date of the report.
FEE REEDUCTION SETTLEMENT PROGRAM (CTC and CTIC)
Eligible customers shall receive $20.00 reduction in their title and/or escrow fees charged by the Company for each eligible
transaction in accordance with the terms of the Final Judgments entered in The People of the State of California.
DISASTER LOANS (CTIC)
The charge for a lender’s Policy (Standard or Extended coverage) covering the financing or refinancing by an owner of
record, within 24 months of the date of a declaration of a disaster area by the government of the United States or the State of
California on any land located in said area, which was partially or totally destroyed in the disaster, will be 50% of the
appropriate title insurance rate.
CHURCHES OR CHARITABLE NON-PROFIT ORGANIZATIONS (CTIC)
On properties used as a church or for charitable purposes within the scope of the normal activities of such entities, provided
said charge is normally the church’s obligation the charge for an owner’s policy shall be 50% to 70% of the appropriate title
insurance rate, depending on the type of coverage selected. The charge for a lender’s policy shall be 40% to 50% of the
appropriate title insurance rate, depending on the type of coverage selected.
EMPLOYEE RATE (CTC and CTIC)
No charge shall be made to employees (including employees on approved retirement) of the Company or its underwritten,
subsidiary title companies for policies or escrow services in connection with financing, refinancing, sale or purchase of the
employees’ bona fide home property. Waiver of such charges is authorized only in connection with those costs which the
employee would be obligated to pay, by established custom, as a party to the transaction.
ATTACHMENT 4
CA Discount NoticeEffective Date: 1-10-2010
PAGE 11 of 18
Notice
You may be entitled to receive a $20.00 discount on escrow
services if you purchased, sold or refinanced residential
property in California between May 19,1995 and
November 1, 2002. If you had more than one qualifying
transaction, you may be entitled to multiple discounts.
If your previous transaction involved the same property that
is the subject of your current transaction, you do not have
to do anything; the Company will provide the discount,
provided you are paying for escrow or title services in this
transaction.
If your previous transaction involved property different
from the property that is the subject of your current
transaction, you must inform the Company of the earlier
transaction, provide the address of the property involved in
the previous transaction, and the date or approximate date
that the escrow closed to be eligible for the discount.
Unless you inform the Company of the prior transaction on
property that is not the subject of this transaction, the
Company has no obligation to conduct an investigation to
determine if you qualify for a discount. If you provided the
Company information concerning a prior transaction, the
Company is required to determine if you qualify for a
discount.
Effective through November 1, 2014
ATTACHMENT 4
PAGE 12 of 18
PRELIMINARY REPORTChicago Title Company
YOUR REFERENCE: ORDER NO.: 00019139-002-KP
Request for $20.00 Discount – CA Settlement
Use one form for each qualifying property.
To:Chicago Title Company,4210 Riverwalk Parkway,Suite 100,Riverside, CA 92505
Date:
From:
(name)
Current Address:
I believe that I am qualified for the $20.00 discount pursuant to the coordinated stipulated judgments
entered in actions filed by both the Attorney General and private class action plaintiffs. I have not
previously received a cash payment or a discount from another Company on the property described
below:
Signed:Date:
Address of
qualifying
property:
Approximate date
of transaction
THIS SECTION IS FOR COMPANY USE ONLY.
The above referenced party is entitled to receive a $20.00 discount on escrow services or title insurance
pursuant to the coordinated stipulated judgments entered in actions filed by both the Attorney General and
private class action plaintiffs.
OR
Theabove referenced party does NOT qualify for the $20.00 discount pursuant to the coordinated
stipulated judgments entered in actions filed by both the Attorney General and private class action
plaintiffs for the following reason:
The party has previouslyreceived credit for the transaction described above.
The transaction described above did not occur in the time period allowed by the stipulated
judgments—May 19, 1995 to November 1, 2002.
Fax this response to:
Escrow No.:00019139-002-KP
Escrow Officer:
Fax Number:
ATTACHMENT 4
PAGE 13 of 18
ATTACHMENT ONE (Revised 06-03-11)
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE POLICY – 1990
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or
expenses which arise by reason of:
1.(a)Any law, ordinance or governmental regulation (including but not limited to building or zoning laws, ordinances, or regulations) restricting,
regulating, prohibiting or relating (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any
improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any
parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or
governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance
resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or notice of a defect,
lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of
Policy.
2.Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from
coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without
knowledge.
3.Defects, liens, encumbrances, adverse claims or other matters:
(a)whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in
writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;
(c)resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e)resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for the
estate or interest insured by this policy.
4.Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure
of any subsequent owner of the indebtedness, to comply with the applicable doing business laws of the state in which the landis situated.
5.Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured
mortgage and is based upon usury or any consumer credit protection or truth in lending law.
6.Any claim, which arises out ofthe transaction vesting in the insured the estate of interest insured by this policy or the transaction creating the
interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws.
EXCEPTIONS FROM COVERAGE -SCHEDULE B, PART I
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of:
1.Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real
property or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shownby the records
of such agency or by the public records.
2.Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of the land or
which may be asserted by persons in possession thereof.
3.Easements, liens or encumbrances, or claims thereof, not shown by the public records.
4.Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which
are not shown by the public records.
5.(a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or
title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records.
6.Any lien or right to a lien for services, labor or material not shown by the public records.
CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE (02-03-10)
ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE
EXCLUSIONS
In addition to the Exceptions in ScheduleB, You are not insured against loss, costs, attorneys' fees, and expenses resulting from:
1.Governmental police power, and the existence or violation of those portions of any law or government regulation concerning:
a.building;
b.zoning;
c.land use;
d.improvementson the Land;
e.land division; and
f.environmental protection.
This Exclusion does not limit the coverage described in Covered Risk 8.a., 14, 15, 16, 18, 19, 20, 23 or 27.
2.The failure of Your existing structures, or any part of them, to be constructedin accordance with applicable building codes. This Exclusion does
not limit the coverage described in Covered Risk 14 or 15.
3.The right to take the Land by condemning it. This Exclusion does not limit the coverage described in Covered Risk 17.
4.Risks:
a.that are created, allowed, or agreed to by You, whether or not they are recorded in the Public Records;
b.that are Known to You at the Policy Date, but not to Us, unless they are recorded in the Public Records at the Policy Date;
ATTACHMENT 4
Attachment One (06/03/11)
PAGE 14 of 18
c.that result in no loss to You; or
d.that first occur after the Policy Date -this does not limit the coverage described in Covered Risk 7, 8.e., 25, 26, 27 or 28.
5.Failure to pay value for Your Title.
6.Lack of a right:
a.to any land outside the area specifically described and referred to in paragraph3 of ScheduleA; and
b.in streets, alleys, or waterways that touch the Land.
This Exclusion does not limit the coverage described in Covered Risk 11 or 21.
7.The transfer of the Title to You is invalid as a preferential transfer or as a fraudulent transfer or conveyance under federal bankruptcy, state
insolvency, or similar creditors’ rights laws.
LIMITATIONS ON COVERED RISKS
Your insurance for the following Covered Risks is limited on the Owner’s Coverage Statement as follows:
For Covered Risk 16, 18, 19, and 21 Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in ScheduleA.
The deductible amounts and maximum dollar limits shown on ScheduleA are as follows:
Our Maximum DollarLimit
Your Deductible Amountof Liability
Covered Risk 16:1.00% of Policy Amount Shown in Schedule A$10,000.00
or
$2,500.00
(whichever is less)
Covered Risk 18:1.00% of Policy Amount Shown in Schedule A$25,000.00
or
$5,000.00
(whichever is less)
Covered Risk 19:1.00% ofPolicy Amount Shown in Schedule A$25,000.00
or
$5,000.00
(whichever is less)
Covered Risk 21:1.00% of Policy Amount Shown in Schedule A$5000.00
or
$2,500.00
(whichever is less)
AMERICAN LAND TITLE ASSOCIATION
RESIDENTIAL TITLE INSURANCE POLICY (6-1-87)
EXCLUSIONS
In addition to the Exceptions in ScheduleB, you are not insured against loss, costs, attorneys' fees, and expenses resulting from:
1.Governmental police power, and the existence or violation of any law or government regulation. This includes building and zoning ordinances
and also laws and regulations concerning:
* land use
* improvements on the land
* land division
* environmental protection
This exclusion does not apply to violations or the enforcement of these matters which appear in the public records at Policy Date.
This exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks.
2.The right to take the land by condemning it, unless:
* a notice of exercising the right appears in the public records
* on the Policy Date
* the taking happened prior to the Policy Date and is binding on you if you bought the land without knowing of the taking
3.Title Risks:
* that are created, allowed, or agreed to by you
* that are known to you, but not to us, on the Policy Date – unless they appeared in the public records
* that result in no loss to you
* that first affect your title after the Policy Date – this does not limit the labor and material lien coverage in Item8 of Covered Title Risks
4.Failure to pay value for your title.
5.Lack of a right:
* to any land outside the area specifically described and referred to in Item 3 of Schedule A
OR
* in streets, alleys, or waterways that touch your land
This exclusion does not limit the access coverage in Item5 of Covered Title Risks.
2006 ALTA LOAN POLICY (06-17-06)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees,
or expenses that arise by reason of:
1.(a)Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating,
prohibiting, or relating to
ATTACHMENT 4
Attachment One (06/03/11)
PAGE 15 of 18
(i) the occupancy, use, or enjoyment of the Land;
(ii)the character, dimensions, or location of any improvement erected on the Land;
(iii)the subdivision of land; or
(iv)environmental protection;
or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1(a) does not modify orlimit the
coverageprovided under Covered Risk 5.
(b) Any governmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 6.
2.Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3.Defects, liens, encumbrances, adverse claims, or other matters
(a)created, suffered, assumed, or agreed to by the Insured Claimant;
(b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in
writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
(c)resulting in no loss or damage to the Insured Claimant;
(d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 13
or 14); or
(e)resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage.
4.Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing business
laws of the state where the Land is situated.
5.Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured
Mortgage and is based upon usury or any consumer credit protection or truth-in-lending law.
6.Any claim, by reason of the operation of federal bankruptcy, state insolvency, orsimilar creditors’ rights laws, that the transaction creating the
lien of the Insured Mortgage, is
(a)a fraudulent conveyance or fraudulent transfer, or
(b) a preferential transfer for any reason not stated in Covered Risk 13(b) of this policy.
7.Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy
and the date of recording of the Insured Mortgage in the Public Records. This Exclusion does not modify or limit the coverage provided under
Covered Risk 11(b).
The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage,
the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys’ fees or expenses) that arise by reason of:
1.(a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real
property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings,
whether or not shown by the records of such agency or by the Public Records.
2.Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that
may be asserted by persons in possessionof the Land.
3.Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
4.Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and
complete land survey of the Land and not shown by the Public Records.
5.(a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or
title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records.
6.Any lien or right to a lien for services, labor or material not shown by the Public Records.
2006 ALTA OWNER’S POLICY (06-17-06)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees,
or expenses that arise by reason of:
1.(a)Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating,
prohibiting, or relating to
(i) the occupancy, use, or enjoyment of the Land;
(ii)the character, dimensions, or location of any improvement erected on the Land;
(iii)the subdivision of land; or
(iv)environmental protection;
orthe effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1(a) does not modify or limit the
coverage provided under Covered Risk 5.
(b) Any governmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 6.
2.Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3.Defects, liens, encumbrances, adverse claims, or other matters
(a)created, suffered, assumed, or agreed to by the Insured Claimant;
(b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in
writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
(c)resulting in no loss or damage to the Insured Claimant;
(d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under CoveredRisk 9 and
10); or
(e)resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title.
4.Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors’ rights laws, that the transaction vesting the
Title as shown in ScheduleA, is
ATTACHMENT 4
Attachment One (06/03/11)
PAGE 16 of 18
(a)a fraudulent conveyance or fraudulent transfer; or
(b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy.
5.Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy
and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A.
The above policy form may be issued to affordeither Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage,
the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys’ fees or expenses) that arise by reason of:
1.(a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real
property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings,
whether or not shown by the records of such agency or by the Public Records.
2.Any facts, rights, interests, or claims that are not shown in the Public Records but that could be ascertained by an inspection of the Land orthat
may be asserted by persons in possession of the Land.
3.Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
4.Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and
complete land survey of the Land and that are not shown by the Public Records.
5.(a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or
title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records.
6.Any lien or right to a lien for services, labor or material not shown by the Public Records.
ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (07-26-10)
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Companywill not pay loss or damage, costs, attorneys’ fees or
expenses which arise by reason of:
1.(a)Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating,
prohibiting, or relating to
(i) the occupancy, use, or enjoyment of the Land;
(ii)the character, dimensions, or location of any improvement erected on the Land;
(iii)the subdivision of land; or
(iv)environmental protection;
or the effect of any violation of these laws, ordinances,or governmental regulations. This Exclusion 1(a) does not modify or limit the
coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16.
(b) Any governmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 5, 6, 13(c),13(d),
14 or 16.
2.Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3.Defects, liens, encumbrances, adverse claims, or other matters
(a)created, suffered, assumed, or agreed to by the Insured Claimant;
(b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in
writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
(c)resulting in no loss or damage to the Insured Claimant;
(d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under CoveredRisk 11, 16,
17, 18, 19, 20, 21, 22, 23, 24, 27 or 28); or
(e)resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage.
4.Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing business
laws of the state where the Land is situated.
5.Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured
Mortgage and is based upon usury, or any consumer credit protection or truth-in-lending law. This Exclusion does not modify or limit the
coverage provided in Covered Risk 26.
6.Any claim of invalidity, unenforceability or lack of priority of the lien of the Insured Mortgage as to Advances or modifications made after the
Insured has Knowledge that the vestee shown in ScheduleA is no longer the owner of the estate or interest covered by this policy. This
Exclusion does not modify or limit the coverage provided in Covered Risk 11.
7.Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching subsequent to Date of
Policy. This Exclusion does not modify or limit the coverage provided in Covered Risk 11(b) or 25.
8.The failure of the residential structure, or any portion of it, to have been constructed before, on or after Date of Policy in accordance with
applicable building codes. This Exclusion does not modify or limit the coverage provided in Covered Risk 5 or 6.
9.Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors’ rights laws, that the transaction creating the
lien of the Insured Mortgage, is
(a)a fraudulent conveyance or fraudulent transfer, or
(b) a preferential transfer for any reason not stated in Covered Risk 27(b) of this policy.
ATTACHMENT 4
Attachment One (06/03/11)
PAGE 17 of 18
ATTACHMENT 4
PAGE 18 of 18
ATTACHMENT 5
TUSTINLEGACY
CITYBENEFITEDPROPERTY
ATTACHMENT 6
CITY ESTOPPEL
________________, 20__
\[Transferee/Permitted Mortgagee\]
_________________
_________________
Attn:____________
Re:Tustin Legacy Parcel 1C
Ladies and Gentlemen:
Transferee
The undersigned is writingthis letter to you (“”) regarding that certain mixed
Project
use \[retail/medical office\]project (“”) that \[has been\] \[may be\] constructed on the land
Parcel
legally described onExhibit “A”attached hereto(“”).
The City of Tustin, a municipal corporation of the State of California(the “City”),and
Developer
____________________________(“”),entered into that certain Tustin Legacy
Disposition And Development Agreement For Parcel 1C,dated as of _____________, 2015
DDA
(“”), relating to the conveyance of the Parcel by the City to Developer and the subsequent
development of the Parcel by Developer, all as more particularly set forth therein.All initially
capitalized terms not otherwise defined herein shall have the meanings ascribed to such termsin
the DDA.
The City has executed that certain Declaration ofSpecial RestrictionsforParcel 1C
Special Restrictions
(“”), dated _____________, 20__,recorded in the Office of the County
Official Records
Recorder,Orange County, California (“”),against title to the Parcel on
_____________,20__as Instrument No. __________,which includes, among other matters,
certain requirements regarding the use and maintenance of the Parceland sets forth those
provisions of the DDA which survive the issuance of a Certificate of Compliance with respect to
the Project.
Specify Healthcare or Retail
The City has executed that certain Quitclaim Deed \[
Property QuitclaimDeed\]
(“Quitclaim Deed”), dated _____________, 20__,whichwas
recorded in the Official Records against title to the Parcelon _____________, 20__as
Instrument No. __________, which Quitclaim Deed conveyed to Developer fee title to the
Parcel, subject to certain restrictions and limitations set forth in the Quitclaim Deed.
In addition, Developer and the City executed that certain Memorandum ofTustin Legacy
Memorandum of DDA
Dispositionand Development Agreement(Parcel 1C)(“”), dated
_____________, 20__, which was recorded in the Official Records against title to the Parcel on
_____________, 20__as Instrument No. __________,and provided record notice of the DDA
DA
and that certain Development Agreement (“”), dated _____________, 20__, which was
ATTACHMENT 6City of Tustin/Regency Centers DDA
-1-September 29, 2015
Tustin Regency Att 6 (City Estoppel) 9-1-15 Final.Docx1
recorded in the Official Records against title to the Parcel on _____________, 20__as
Instrument No. __________.
TheDDA,the Memorandum of DDA,the DA, the Special Restrictions,and the
PropertyDocuments
Quitclaim Deedare collectively referred tohereinas the “.”The Property
Documents do not comprise all of the agreements between the parties.
You have informed the undersigned City that Developer intends to Transfer its interest in the
Development Parcels\[or specify portion thereof\]or a direct or indirect interest therein to
Transaction
Transfereeon or aroundthe date of this letter (the“”).
By its execution of this letter, the City hereby confirms to Transfereethat:
1.Except as set forth on Attachment 1to this letter,the PropertyDocuments are in
full force and effect and have not been modified, supplementedor amended, whether orally or in
writing, and have not been assigned or otherwise transferredby the City to any other person or
entity.
2.To the best of the City’s knowledge,except as set forth on Attachment 2to this
letter:(i) there are no defaults of Developer(including, without limitation, no Potential Defaults
and no Material Defaults)under any of the Property Documents nor any facts which now, or
after the giving of notice or the passage of time, or both, would constitute a default (including,
without limitation, a Potential Default or Material Default)under any of the Property Documents
or which would entitle the City to then exerciseany of its rights or remediesunder any of the
Property Documents, including, without limitation,its Right of Reversion or Right of
Repurchase pursuant tothe DDA;and (ii)the City has no claim of breach, counterclaim, lien or
offset presently existingagainst Developer, the Projector the Propertyunder any of the Property
Documents.
As used in this letter, the phrase “to the best of the City’s knowledge” andwords of like
import, meanthat the facts in question are actually known (as opposed to imputed, inquiry or
constructive knowledge) to the representative of the City signing below, based upon such
individual’s own knowledge after a reasonable review of the relevant records and filesin the
possession of the City.
The undersigned acknowledges that Transferee\[INCLUDE ONLY IF APPLICABLE:and
Transferee's prospective lender, and theirparticipating lenders\],may rely upon this letter in
entering into the proposed Transaction. This letter is written in connection only with the
proposed Transaction and may be relied upon only by Transferee\[INCLUDE ONLY IF
APPLICABLE: and Transferee's prospective lender, and their participating lenders\]as to the
matters addressed herein.This lettermay not be relied upon by any other party or for any other
purpose without the express written consent of the City.This certificate shall be binding upon
the City and its successors and assigns.
\[Signature page follows\]
ATTACHMENT 6City of Tustin/Regency Centers DDA
-2-September 29, 2015
Tustin Regency Att 6 (City Estoppel) 9-1-15 Final.Docx1
CITY OF TUSTIN
Dated: ________, 20__By:
Name: _____________________________
City Manager
ATTEST:
By:
Name: ______________
City Clerk
APPROVED AS TO FORM:
City Attorney
By:_________________________
Name: ______________________
ATTACHMENT 6City of Tustin/Regency Centers DDA
-3-September 29, 2015
Tustin Regency Att 6 (City Estoppel) 9-1-15 Final.Docx1
Exhibit “A”
Legal Description of the Parcel 1CProperty
ATTACHMENT 6City of Tustin/Regency Centers DDA
-4-September 29, 2015
Tustin Regency Att 6 (City Estoppel) 9-1-15 Final.Docx1
Attachment 1
Modifications, Supplementsor Amendments to Property Documents
1.\[enter “None” if there are no qualifications\]
ATTACHMENT 6City of Tustin/Regency Centers DDA
-5-September 29, 2015
Tustin Regency Att 6 (City Estoppel) 9-1-15 Final.Docx1
Attachment 2
Qualifications to Matters Confirmed in Estoppel
1.\[enter “None” if there are no qualifications\]
ATTACHMENT 6City of Tustin/Regency Centers DDA
-6-September 29, 2015
Tustin Regency Att 6 (City Estoppel) 9-1-15 Final.Docx1
Responsible Party
City/Developer
”),
DeveloperDeveloperDeveloperDeveloper DDA, 2015
.
(“DDA
City of Tustin/Regency Centers
DDA
29
City
September
terms used in this Schedule of Performance shall have the meanings set forth in the
n the event of any express conflict between the provisions of this Schedule and the provisions of the Agreement
Insurance to be obtained prior to or upon the Effective
Date. Accord certificate to be provided to City within
Effective
seven (7) Business Days following the Effective Date
City Council
r the
and annually (upon request from the City) until
Within ten (10) Business Days following the
Recording of a Certificate of Compliance fo
following
Within five (5) Business Days
..
On or before Effective DateOn or before Effective Date
.
Effective Date
of the DDA.
*
SCHEDULE OF PERFORMANCE
ATTACHMENT 7
Project.
approval
Attachment 7
Prior to
Action
.
Date
1
and worker’s compensation
require by this Section and to provide Accord
other materials in its possession pertinent to
Developer executes Development Agreement
in
Developer and the City
Developer funds City Cost Deposit including
each delivers three executed copies of the
plans, reports, studies, investigations and
produced
associated documentation
Developer to obtain commercial general
nd Developer
REG
payment of ENA Transaction Expenses
Initially capitalized
relating to the Development Parcel.
Certificate,
.Docx
FINAL
-
City to deliver copies of all City
15 (Agd)(4)
.
the Property or the Projectcertificate evidencing same
a
Supplemental Certificate
REG
DDA to Escrow Holder.
form approved by City
-
2
-
–
Opening of Escrow
Developer delivers
the provisions of the Agreement shall govern.) 10
liability insurance
Performance
and
Except as set forth in Item 5 below, i
1. EXECUTION OF AGREEMENT
Certificate
Of
Schedule
Item
7 (
Tustin Regency DDA Attachment
11.1.2,
; ;
Section
DDA
11.2.3
11.1.1
1.8.24.6.8
2
1.64.6.4.45.6
F
E
BC
A
D
*
Responsible Party
DeveloperDeveloperDeveloper
DDA, 2015
City of Tustin/Regency Centers
CityCity
29
September
,
submittal
Project Entitlements prior to
Attachment 28 and Recording of the Parcel Map are conditions
)
15
(
fifteen
or Healthcare Developer
pproval of Entitlements listed on
City shall use good faith efforts to respond within
.
operty
Prior to Close of Escrow for applicable Parcel.
for the Pr
Developer shall have applied for all
ENTITLEMENTS, MAPPING, GRADING, INFRASTRUCTURE, UTILITIES, BUILDING PERMITS
Business Days from Developer
Close of Escrow
..
Prior to Effective DatePrior to Effective Date
A
the Effective Date.
Attachment 7
.
precedent to
2
as applicable
Action
.Docx
requirements of the City Code and
Developer submits for approval by
The City
Entitlement Application Package.
(in
Specific
Parcel
Capacity, a Subdivision Map and
including the required contents
FINAL
Concept Plans.
documents conforming to the
Governmental Capacity, final
Map and Project Entitlements
Proprietary Review Approval.
Concept Plans to the City for
delivers the Basic
design drawings and related
the City in its Governmental
15 (Agd)(4)
.
its Governmental Capacity)Developer shall submit for
Council considers
and Healthcare
approval by the City in its
listed in Chapter 5 of the
-
City Proprietary Review
comments or approves
-
2
-
) 10
Performance
Developer Basic
Developer Developer
The City
Of
Schedule
Plan.
Item
7 (
Tustin Regency DDA Attachment
; ;
Section
DDA
8.4.58.4.58.4.3
66
4.6.8.34.6.8.3
E
BC
A
D
2
Responsible Party
DDA, 2015
DeveloperDeveloperDeveloperDeveloperDeveloperDeveloperDeveloperDeveloper
City of Tustin/Regency Centers
29
September
Commencing on the Effective Date and ending on the Developer PTR review period shall extend through the ten (10) calendar days after Developer's receipt
i.e., no
execution of the
) calendar days following the
days after Effective Date).
.
the Agreement
Agreement by the City and Developer and as a
Prior to the end of the Due Diligence Period (
Close of Escrow.
Effective Date at 4:00 P.M. Pacific Time.
days after Effective Date).
eport.
Within five (5) Business Days after
condition to the effectiveness of
..
Effective DateEffective Date
such Supplement Title R
Retail Property
60
Due Diligence Period (
60
(
sixty
On or before the On or before the
)
date which is
RETAIL PROPERTY
60
rior to the
later than
Attachment 7
of any
Within
Action
3
P
in writing Developer's disapproval of any item
Developer issue Additional Assurance/Equity Developer conducts site investigation during
Supplemental Title Reports and shall specify
ERTY FROM THE CITY TO DEVELOPER (
reviews PTR and may object to matters set
or exception shown on such Supplemental
.
Developer shall provide the City a copy of
Purchase Price Deposit
Reports (PTR) to Developer and the City.
REG
During Due Diligence Period, Developer
survey prepared by a licensed surveyor.
roperty
and associated financial
Developer
Title Company issues Preliminary Title
Guaranty of Developer Obligations:
.Docx
FINAL
P
Developer delivers to the City
Developer provides the City 15 (Agd)(4)
the Due Diligence Period.
-
2
-
) 10
Developer delivers
Performance
forth in the PTR.
documentation.
Funding Letter.
Plan
Title Reports.
inancing
Guaranty
Of
Schedule
. CONVEYANCE OF PROP
Item
F
7 (
Tustin Regency DDA Attachment
Section 4.5, 5.1
DDA
4.6.14.6.24.6.34.3.1
6.16.26.3
F
E
BC
A
DGH
3
Responsible Party
/City
Title Company
DDA, 2015
DeveloperDeveloper
City of Tustin/Regency Centers
Developer
29
City
September
irrevocably and unconditionally prepared to issue such
Retail
Close
Retail
lose of
no no
; CC&Rs to be recorded
shall be
Retail Property Close of Escrow
wise in DDA, Except as expressly provided otherwise in DDA,
prior to thethan twenty (20) business days prior to the
requested ALTA Policy to Developer at Close of
rior to
C
prior to
As a condition to closing, Title Company
p
and approval
days
two (2) business days
Except as expressly provided other
business
.
City review
Close of Escrow
Close of Escrow
)
20
(
concurrently with
twenty
)
No later than
Submittal for
RETAIL PROPERTY
than
.
Property Property
of Escrow
scrow.
.
Attachment 7
Escrow
Action
laterlater
4
E
Coverage) Policy with policy amount equal to
,
Applicable Approvals
certificate stating that all Closing Conditions
Retail Property Closing Conditions
for its benefit have been satisfied or waived.
Parcel Map
ERTY FROM THE CITY TO DEVELOPER (
Grading and Building
Representations and
Title Company issues the ALTA (Extended
, including, Document Deliveries,
Representations and Warranties, Default.
Developer submits CC&Rs to the City for
review and approval and records CC&Rs
Each Party submits to Escrow Holder a
Closing Conditions
, including, Developer Closing
,
Existing Obligations,
Leases
.Docx
against the Development Parcels.
Payment, Document Deliveries,
Permits, Leases; No Casualty or FINAL
Condemnation, No Litigation,
,
Grading and Building Permits
15 (Agd)(4)
.
the Base Purchase Price.
,
Default
Construction Bond
Applicable Approvals;
-
Retail Property
Financial Capability, 2
-
) 10
Performance
and
-
Title Policy, Pre
,
Developer
Warranties
Of
satisfiedsatisfied
Schedule
City
and
. CONVEYANCE OF PROP
Item
7 (
Tustin Regency DDA Attachment
7.1.2; 7.1.2; 7.4. (b)
Section
DDA
.17.3.2
6.4
13
7.3
I
J
L
K
M
3
Responsible Party
DDA, 2015
DeveloperDeveloperDevelopereloper
City of Tustin/Regency Centers
29
September
Dev
Retail Parcel are fully stocked and open for a minimum
last to occur of the satisfaction of the Developer Retail
occupying at least 53,000 GBA on the Retail Parcel are
first of the following occurs: (a) a single grocery store
approved
or the waiver Retail Property
if Developer is seeking a specific (1) day as a retail establishment or (b) Tenants
Within thirty (30) days after the date upon which the
fully stocked and open for a minimum of one (1) day
following the
of not less than 40,000 GBA and a drug store on the
and the City
No later than December 16, 2016 (unless extended
No later than one (1) business day prior to Close of
as a retail establishment. The Additional Purchase
Retail Property Closing Conditions set forth in
mutually
Price shall be secured by the REG Guaranty.
(
Property Closing Conditions set forth in
days after the
the DDA
Date that is twenty (20) Business Daysof the DDA
.
or an otherwise
subject to Section 7.1.3
thereof by the applicable Party).
of
7.3.2(c) through (h)
Sections7.3.1(c) through (i)
pursuant to DDA §7.1.3).
(90)
Outside Closing Date
No later than ninety
plan amendment,
)
RETAIL PROPERTY
extension
Escrow.
Attachment 7
of one
Section
Action
5
Developer issues payment of the Balance of
the Purchase Price and Other Amounts Due
ERTY FROM THE CITY TO DEVELOPER (
Developer issues payment of Additional
Retail Property Outside Closing Date
Retail Property Outside Closing Date
.Docx
FINAL
Retail Property Close of Escrow
15 (Agd)(4)
Purchase Price to the City.
-
2
-
) 10
at Close of Escrow.
Performance
Extension
Of
Schedule
. CONVEYANCE OF PROP
Item
7 (
Tustin Regency DDA Attachment
Section
DDA
4.3.47.1.27.1.27.1.3
.3
4
PR
NOQ
3
Healthcare DeveloperHealthcare DeveloperHealthcare Developer Healthcare Developer
Responsible Party
Developer/City
DDA, 2015
Developer
City of Tustin/Regency Centers
29
September
The earlier of at least ninety (90) calendar days prior At least ninety (90) calendar days prior to Healthcare
least twenty (20) Business Days prior to the date of
t least fifteen (15) Business Days prior to entering
; provided no Option Payment is required if
Developer to submit written consent to the City at
Retail Property Close of Escrow and Healthcare
Business Days prior to a proposed
Close of Escrow or
ty Close of
.
Property Close of Escrow occur concurrently.
ays prior to the
Transfer pursuant to Section 2.2.3(b).
.
Healthcare Property Close of Escrow
No later than date of Retail Proper
Healthcare Property
two (2) business d
any proposed Transfer. Property Close of Escrow
)
into any Mortgage.
EALTHCARE PROPERTY
(20)
twenty
Attachment 7
At least
Escrow
Action
to the
6
A
) to
H
proposed Mortgagee’s loan documents for
. CONVEYANCE OF PROPERTY FROM THE CITY TO DEVELOPER (
Parcels only) delivers copy of commitment
Healthcare Developer delivers to the City Healthcare Developer delivers to the City
by Section
Healthcare Developer (Other Healthcare
Parcel to Healthcare
in the form of Attachment 14B
of
Developer delivers First Option Payment
to
HCD
Developer requests the City approval
from Permitted Mortgagee and draft
Healthcare Developer and approval
.Docx
Healthcare Vertical Improvements.
re Developer to provide
FINAL
information required
15 (Agd)(4)
transaction documents
-
.
2
transfer Healthcare
-
) 10
.
Developer and City
and 4.6.4 Performance
Developer.
(
Guaranty
financial
Of
Healthca
b)
Schedule
(
2.2.3
Item
7 (
Tustin Regency DDA Attachment
2.2.3(b) (b)7.1.1(b)
Section
DDA
4.6.44.6.44.6.5
17.1.2
F
E
BC
AD
4
/Permitted
Healthcare
Responsible Party
Mortgagee if
DDA, 2015
DeveloperDeveloper
applicable
City of Tustin/Regency Centers
29
City
September
veloper/
Developer
De
)
on or before the expiration of the First Option Term
Payment, on or before the expiration of the Second
of Retail Property Provided Developer funds the First Option Payment,
anniversary of the Retail Property Close of Escrow).
Except as expressly provided otherwise in DDA, no nd Except as expressly provided otherwise in DDA, no
anniversary of
Option Term (i.e., at any time prior the second (2
later than twenty (20) business days prior to thelater than twenty (20) business days prior to the
Provided Developer funds the Second Option
. .
the Retail Property Close of Escrow).
Healthcare Property Close of EscrowHealthcare Property Close of Escrow
)
) anniversary
st
(i.e., at any time prior the first (1
st
)
No later than first (1
EALTHCARE PROPERTY
Close of Escrow.
Attachment 7
Action
7
H
Grading and Building
. CONVEYANCE OF PROPERTY FROM THE CITY TO DEVELOPER (
Developer delivers Second Option Payment
Representations and Warranties, Default.
, including, Document
, including, Developer
Casualty or Condemnation, No Litigation,
Applicable Approvals; Parcel
Closing Payment, Document Deliveries,
Grading and Building Permits, No
Developer Healthcare Property Closing
and
Closing
Financial Capability,
,
Existing
.Docx
Parcel Map and Construction Bond
,
Representations and Warranties
FINAL
Healthcare Property
15 (Agd)(4)
-
Developer exercises Option
Deliveries, Title Policy, Pre
,
-
Applicable Approvals
2
-
Conditions satisfied) 10
satisfied
Performance
,
Leases
Obligations,
Conditions
The City
.
Of
,
Permits
Default
Schedule
,
Map
Item
7 (
Tustin Regency DDA Attachment
7.1.1(b) 7.1.1(b)
7.1.1; 7.1.1;
Section
DDA
.2
7.2.1
2
7.
I
J
GH
4
Responsible Party
Developer/City
Healthcare
DDA, 2015
Developer/
DeveloperDeveloperDeveloper
City of Tustin/Regency Centers
29
September
(or the waiver thereof by the applicable Party) but in
no event prior to the Retail Property Close of Escrow (60) days after the last day of the
First Option: Extends acquisition period through the
Second Option: Extends acquisition period
and the City Healthcare Property Closing Conditions
of the DDA sixty (60) days after the Retail Property
or
following the last to occur of the satisfaction of the
subject
for concurrent closing of Retail Property
and Healthcare Property: Up to ninety (90) days if
Developer Healthcare Property Closing Conditions
of the DDA
Healthcare
Developer is seeking a specific plan amendment,
first anniversary of the Retail Property Close of
extended pursuant to
through the second anniversary of the Retail
date which is twenty (20) Business Days
approved extension
No later than one (1) business day prior to
7.2.1(c) through (h)
7.2.2(c) through (l)
Close of Escrow.
prior to
At least two (2) business days
scrow.
.
Property Close of Escrow.
Section 7.1.3 of the DDA)
unless
mutually
)
Healthcare Property
set forth in Sections
EALTHCARE PROPERTY
E
nor later than sixty
rth in Section
lose of
.
Close of Escrow (
to Section 7.1.3
o later than
an otherwise
Option Term
Extension
C
Escrow.
Property
Attachment 7
Action
set fo
The
8
N
certificate stating that all Closing Conditions
for its benefit have been satisfied or waived.
the Balance of
H
the Purchase Price and Other Amounts Due
. CONVEYANCE OF PROPERTY FROM THE CITY TO DEVELOPER (
Health Care Property Outside Closing Date
Outside Closing Date
Holder a
Healthcare Property Close of Escrow
.Docx
FINAL
Each Party submits to Escrow
Developer issues payment of
15 (Agd)(4)
Extension and Options.
-
Healthcare Property
2
-
) 10
at Close of Escrow.
Performance
Of
Schedule
Item
7 (
Tustin Regency DDA Attachment
7.1.1.(a)7.1.1(b);
7.4. (b)
Section
DDA
4.3.47.1.17.1.3
L
K
N
O
M
4
Responsible Party
DeveloperDeveloperDeveloperDeveloper
veloper
DDA, 2015
City of Tustin/Regency Centers
29
September
e
D
for each
Retail Parcel or (ii) six (6) months following Retail Property Close
withstanding anything to the contrary in Section 8.1.5(a) or
anything to the contrary in Section 8.1.5(a) or elsewhere in the
Commencing upon commencement of construction (i.e., upon
, subject to
Construction Period
graded Construction Period
Notwithstanding
Improvements and in accordance with Retail Project schedule
Developer the Grading Permits for the Grading Work on the
the date on which the City issues to
Vertical
Improvements
.
each
Commencement Date, subject to Force Majeure Delay
issuance of grading or building permit by City for any
graded certified pad.
Following commencement of Minimum Horizontal
)
elsewhere in the DDA, Developer may commence
of Escrow but in no event later than June 30, 2017
completion of
Parcel.
DDA, Developer may commence Vertical
months following the
months following the
Commencement Date for the Retail
upon
each
pad
completion of
for each
i)
Force Majeure Delay.
(
of
)
fifteen (15)
2
Attachment 7
earlier
(1
Improvements
twelve
construction)
certified pad.
9
upon
the
Within
Upon
Within
Action
Not
pad
risk insurance in accordance with
.Docx
construction of Retail Horizontal
Developer to obtain or cause its
contractor to maintain builder’s
Minimum Retail
Minimum
FINAL
15 (Agd)(4)
Horizontal Improvements.Improvements.
of Minimum
commences Developer commences commences Vertical Improvements.
Developer completes
-
DDA requirements
2
-
) 10
CONSTRUCTION OF IMPROVEMENTS
Performance
ion of
Improvements
construction
Horizontal
Developer Developer
construct
Of
Schedule
Item
7 (
Tustin Regency DDA Attachment
8.1.5(b)
8.1.5(a)8.1.5(a)
Section
DDA
11.1.3
E
BC
A
D
.
5
Responsible Party
Healthcare Healthcare
DeveloperloperDeveloper
DDA, 2015
City of Tustin/Regency Centers
29
September
Deve
subject
date that is forty
the date on which the City issues to Healthcare Developer the
ising the Medical Office Building.
six (6) months following Healthcare Property Close
provided that such Completion date shall
subject to Force Majeure Delay.
Notwithstanding anything to the contrary in Section 8.1.5(a) or
the date upon
earlier of
following Healthcare Property Close of Escrow but in no event
Parcel shall have Commenced Construction of the Healthcare
the date on which the City
issues to Healthcare Developer the first permit for Horizontal
each
Developer may commence
Period Commencement Date for the Retail Parcel, subject to six (6) months
.
Period Commencement Date for the
If the Medical Office Parcel is conveyed separately from the
(which date shall not be extended for Force Majeure Delay);
first permit for Horizontal Improvements on the Healthcare
Healthcare Developer owning the Medical Office
Construction
eight (48) months after the Close of Escrow for such Parcel
completion of
1, 2017),
Period
Date for the Healthcare Parcel (i.e.,
Construction
, but in no event prior to
not under any circumstances be later than the
n no event later than December
) months following the
Improvements on the Healthcare Parcel or (ii)
upon
Other Healthcare Parcels, upon the
for each pad
earlier of (i)
Healthcare
7),
Vertical Improvements compr
1, 201
Construction Improvements
to Force Majeure Delay
elsewhere in the DDA,
Healthcare Parcel (i.e.,
24
Force Majeure Delay,
graded certified pad.
later than December
(
wenty four
Commencement
Attachment 7
of Escrow but i
10
Parcel or (ii)
which the
Upon the
Vertical
Within t
Action
(i)
on Medical Office on Medical Office .Docx
Minimum
inimum Healthcare Vertical inimum Healthcare Vertical
FINAL
commences construction of
ion of
15 (Agd)(4)
Developer Completes
construct
Healthcare DeveloperHealthcare Developer
Retail Improvements
-
2
-
) 10
CONSTRUCTION OF IMPROVEMENTS
Performance
ImprovementsImprovements
commences
Parcel.Parcel.
Of
Schedule
Item
MM
7 (
Tustin Regency DDA Attachment
8.1.5(b); ;
;
8.1.5(b)
Section
DDA
9.3(a)
F
GH
.
5
Responsible Party
Healthcare
Developer
DDA, 2015
City of Tustin/Regency Centers
CityCity
29
September
contrary, in the event the City Manager determines that the City
Parcel
provided that, notwithstanding any provision of the DDA to the
shall not under any circumstances be later than the date that is
Period Commencement Date for the Healthcare Parcel, subject
Manager determines that the City Council should approve the
cate of Compliance, sixty (60) days after
;
provided that such Completion date
forth evidence of satisfaction of Conditions Precedent
.
(which date shall not be extended for Force Majeure Delay);
after written request from Healthcare
Construction
after written request from Developer
; provided that, notwithstanding any
provision of the DDA to the contrary, in the event the City
forty eight (48) months after the Close of Escrow for such
Council should approve the issuance of the Certificate of
xty (60) days after written request from
Developer setting forth evidence of satisfaction of the
following the
written request from Healthcare Developer.
twenty four (24) months
to Force Majeure Delay,
Healthcare Developer. .
issuance of the Certifi
Conditions Precedent
ten (10) days
days
Attachment 7
Within ten (10)
Compliance, si
11
setting
Within Within
Action
ompletes .Docx
Certificate of Compliance for the
Certificate of Compliance
inimum Healthcare Vertical
Retail Parcel
FINAL
Healthcare
.
15 (Agd)(4)
for the Healthcare Project
C
Healthcare Developer
-
2
-
) 10
The City issues a The City issues a
CONSTRUCTION OF IMPROVEMENTS
Improvements.
Performance
.
Project
Parcel
Of
Retail
Schedule
Item
M
7 (
Tustin Regency DDA Attachment
8.1.5(b);
9.3(b);
9.29.3
Section
DDA
2
16.4.
9.1; 9.1;
I
J
K
.
5
ATTACHMENT8
SCOPE OF DEVELOPMENT
Developer shall develop The Village atTustin Legacy,which, at full build out, will consist of
1
248,292 square feet of nonresidential uses comprised oftwo major components:
1.
Retail Center:A 98,292 square-foot retail center with grocerystore, pharmacy, childcare,
food service, and general retail uses along Valencia Avenue and Kensington Park Drive.
2.
Medical Plaza:A 150,000 square-foot medical plaza with a medical center, an acute care
hospital/rehabilitation facility and medical office/retail buildings fronting along
Kensington Park Drive and Edinger Avenue.
The project is zoned MCAS Tustin Specific Plan District (SP1) and is located on 20.96-acre area
within Planning Area 7, Neighborhood B, of the MCAS Tustin Specific Plan with a Land Use
Plan designation of Village Services, and General Plan Land Use designation of MCAS Tustin
Specific Plan. The site is boundedby Edinger Avenue, KensingtonPark Drive, Valencia
Avenue and Tustin Ranch Road.
The proposed commercial center is geared towards providing neighborhood commercial services
to the surrounding community including Tustin Fields I, Tustin Fields II, Columbus Square,
Columbus Grove, Greenwood, Tustin Meadows, Peppertree and nearby nonresidential uses.
Developershall construct the commercial center in multiple phases. The first phase shall include
the construction of Horizontal Improvements, including grading and construction of the common
areas such as parking lots,common area drive, landscape areas and off-site improvements. The
second phase shall include the construction Minimum Retail Vertical Improvements.The final
phase shall include the construction of any remaining Vertical Improvements.
Horizontal Improvements:
A.Grading:Clear, grub, and rough grade Developer’sTract, including the necessary
undercutting, import, export, compaction of soilsand delivery of certified
building pads.
B.Site Utilities:Complete the installation of siteutilities, including water, sanitary
sewer, storm water, electric, gas and communications lines stubbed to each
building pad.
C.Pavement and Curbs:Paved parking lot and interior roads, including entrance
and exit driveways, curbs and gutters, catch basins, code signage and striping.
D.Lighting:Installparking lot lighting system for the Development, including
concrete bases, light standards, fixtures, conduits and meter pedestals.
1
All references to square footage in this Attachment are to GBA as defined in the DDA.
Attachment 8_V3 JB Comments_Site Plan Inserted ATTACHMENT 8City of Tustin/Regency Centers DDA
(LG) 9-2-2015 FINAL.Docx-1-September 29, 2015
E.Landscape and Irrigation:Landscape and irrigation for the common areaof the
Development, and certain off-site improvements, including all necessary piping,
wiring, controllers, trees, shrubs, and ground cover.
F.Off-Site Improvements:Roadways, deceleration lanes, curb and gutters,
sidewalks, traffic signals, median cuts, utilities and utility relocations, streetlights,
landscaping and irrigation, striping, and traffic control and temporary barricades
and signage shown and/or required by the project Conditions of Approval.
Vertical Improvements:
Upon full buildout the retail center is anticipated toconsist of nine (9) buildings(Buildings A
through I)of varying sizestotaling approximately 98,282 square feet.The retail center design
theme shall be of “Contemporary Barn” or “Contemporary Rustic” architecture style that
borrows inspiration from the industrial aesthetics ofthe nearby blimp hangars to the agricultural
farmlands that surrounded the site in the early 1900s. Building materials will further exhibit this
influence with the use of metal roofing and siding, rich colored board and batten vertical sidings,
rusticated stone veneer, barn door features, louvers and lattices.
Upon full buildout the medical plaza is anticipated toconsist of four (4) buildings (Buildings J
through M) of varying sizes and heightstotaling 150,000 square feet.These buildings shall
incorporate similar color and material palette as the retail center to the south, however,
incorporate a more contemporary architectural style, utilizing sleek building lines and contrasts
of light and heavy elements. Architectural design elements may include features such as
multiple roof elements, varying parapet wall heights, varying wall planes, expanses of glass
windows and metal or stone siding creating variations and visual interest in the building façade.
Parking:
The commercial centerwill include approximately 1,090parking spacessubject to variations
based on the final center design and layout.Parking areas for the retail center will be considered
separate from the medical plaza parking.The retail center will be parked with approximately
470 stalls and the medical plaza will be parked with approximately 620 stalls. Ingress and egress
points shall be located along Valencia Avenue, Kensington Park Drive and Edinger Avenue.
Both the retail center and medical plaza will share the main drive located at Kensington Park
Driveand Georgia Street.
Trip Allocation
:
The maximum trip allocation for the project is as follows:
ProjectDaily 2-Way
Retail Center (98,282 SF)4,197
Retail/Office Medical Plaza (15,000 SF) 641
Medical Office Building (60,000 SF)2,168
Skilled Nursing Facility/Acute Care (80 beds–75,010 SF)213
TOTAL MAXIMUM PROJECT TRIPS7,219
The City is retaining the 1,755 trips identified in the final row on Attachment 26.
Attachment 8_V3 JB Comments_Site Plan Inserted ATTACHMENT 8City of Tustin/Regency Centers DDA
(LG) 9-2-2015 FINAL.Docx-2-September 29, 2015
ity of Tustin/Regency Centers DDA, 2015
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SITE PLAN
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C-001
LUISGOMEZ@REGENCYCENTERS.COM
TITLE SHEET
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
1 of 5
KENSINGTON PARK DRIVE TYPICAL SECTION
SECTION C-C
ASSESSOR'S PARCEL NUMBERS
SUBDIVISION SUMMARY
ABBREVIATIONS
PROJECT TEAM
SHEET INDEX
LEGEND
OWNER
ATTACHMENT 9 - DEPICTION OF HORIZONTAL IMPROVEMENTS
RIGHT TURN IMPROVEMENTS ON EDINGER AVENUE TYPICAL SECTION
RIGHT TURN IMPROVEMENTS ON VALENCIA AVENUE TYPICAL SECTION
TENTATIVE PARCEL MAP NO. 2015-127
NOT TO SCALE
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LEFT TURN IMPROVEMENTS ON VALENCIA AVENUE TYPICAL SECTION
TITLE REPORT INFORMATION:
PROPOSED EASEMENTS/
DATUM STATEMENT:
BASIS OF BEARINGS
RECORD OWNER:
UTILITY SERVICES
ACCESS NOTES:
STORMWATER
DEDICATIONS
BENCHMARK
SECTION A-A
NOTES:
C-101
LUISGOMEZ@REGENCYCENTERS.COM
TENTATIVE PARCEL MAP
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
2 of 5
H
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ATTACHMENT 9 - DEPICTION OF HORIZONTAL IMPROVEMENTS
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LUISGOMEZ@REGENCYCENTERS.COM
CONCEPTUAL GRADING SHEET
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
3 of 5
H
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ATTACHMENT 9 - DEPICTION OF HORIZONTAL IMPROVEMENTS
SECTION A-A
CONSTRUCTION NOTES
BENCHMARK
LEGEND
C-202
LUISGOMEZ@REGENCYCENTERS.COM
CONCEPTUAL UTILITY PLAN
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
4 of 5
GENERAL NOTES:
ATTACHMENT 9 - DEPICTION OF HORIZONTAL IMPROVEMENTS
STORM DRAIN
SEWER CONSTRUCTION NOTES
DOMESTIC WATER
FIRE WATER
LEGEND
C-203
LUISGOMEZ@REGENCYCENTERS.COM
OFFSITE IMPROVEMENTS
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
5 of 5
ATTACHMENT 9 - DEPICTION OF HORIZONTAL IMPROVEMENTS
ATTACHMENT 10
LIST OF ENVIRONMENTAL REPORTS AND STATEMENTS
(as of 8/28/-215)
Provided as Part of City RFP Materials
1.Finding of Suitability to Transfer, dated 9/28/01
2.City Council Resolution 06-43, dated 4/3/06
3.Final EIS/EIR, Volume 1, dated 11/18/99
4.Final EIS/EIR, Volume 2, dated 12/9/99
5.Final EIS/EIR, Volume 3
6.Supplement EIR for TRR Responses, dated 8/26/04
Provided by City Letter or Email
7.Environmental Baseline Survey, dated 3/21/2001 (provided by email 3/25/2015)
ATTACHMENT 10
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-1-
September 29, 2015
ATTACHMENT 11
FORM OF QUITCLAIM DEED
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE RECORDED
AND TO BE EXEMPT FROM RECORDING
FEES PER GOVERNMENT CODE §6103 AND
§27383.
Recording requested by and
when recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Mail Tax Statements to:
Regency Centers Acquisition, LLC
915 Wilshire Blvd., Suite 2200
Los Angeles, CA 90017
Attn: John Mehigan
Space Above This Line Reserved for Recorder’s Use
QUITCLAIM DEED
FOR PARCEL 1C
AND COVENANTS, CONDITIONS AND RESTRICTIONS, INCLUDING
ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471
This Quitclaim Deed For Parcel 1Cand Covenants, Conditions and Restrictions,
Quitclaim
Including Environmental Restriction Pursuant to Civil Code Section 1471(this “
DeedQuitclaim Date
”) is made on this ____day of __________________, 20__(the “”), by the
CITY OF TUSTIN, California, a municipal corporation of the State of California
GRANTOR
(“”), in favor of 1C TUSTIN LEGACY, LLC, a Delaware limited liability company
GRANTEE
(“”).
WHEREAS:
Government
A.The United States of America (“”) and the GRANTOR entered into
that certain Agreement between the United States of America (acting by and
through the Secretary of the Navyor designee) and the City of Tustin, California,
for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin
MCAS TustinConveyanceAgreement
(“”), dated May 13, 2002 (“”);
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B.Pursuant to the Conveyance Agreement, the Government conveyed property at
Grantor Property
the Marine Corps Air Station Tustin (such property, “”) to the
GRANTOR pursuant to that certain Quitclaim DeedHand Environmental
Restriction Pursuantto Civil Code Section 1471 dated May 13, 2002, that was
recorded on May 14, 2002 in the Office of the County Recorder, Orange County,
Official Records
California (“”) as Instrument Number 20020404598
Government Deed
(“”)
C.Pursuant to California Civil Code §1471, the Government determined that it is
reasonably necessary to impose certain restrictions on the use of the Grantor
Property to protect present and future human health or safety or the environment
as a result of the presence of hazardous materials on portions of the Grantor
Property described hereinafter with particularity;
D.The GRANTOR and the GRANTEE entered into the following: (i) that certain
Tustin Legacy Disposition and Development Agreement for Disposition Parcel
DDA
1C, dated as of ______________, 2015(“”), providing for the sale and
development of a portion of the Grantor Property; and (ii) that certain
Memorandum of Disposition and Development Agreement (Parcel 1C)
Memorandum ofDDA
(“”) to be recorded in the Official Records of even date
with and immediately prior to the recording of this Quitclaim Deed;
E.The GRANTOR has executed that certainDeclaration of Special Restrictionsfor
Special Restrictions
Parcel 1C(“”), consented to by the GRANTEE, which shall
be recorded in the Official Records immediately prior to the recording of this
Quitclaim Deed; and
F.The GRANTOR desires to convey and the GRANTEE desires to acquire a portion
of the Grantor Property to facilitate economic redevelopment in accordance with
that certain MCAS TustinReuse Plan adopted by the City Council of the City on
Reuse Plan
October 17, 1996 and amended in September, 1998 (“”) and approved
by the Government for MCASTustin.
1.NOW THEREFORE, the GRANTOR, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, does hereby remise, release and
forever quitclaim to the GRANTEE, all of the GRANTOR’S right, title and interest in and to that
certain real property, comprising approximately 20.92acres, more or less,more particularly
Land
describedonExhibit”A”attached hereto and incorporated herein by this reference (“”),
together with all existing improvements, if any, presently located on the Land, all appurtenances
pertaining to the Parcel (as hereinafter defined) or such improvements andall permits, licenses,
approvals and authorizations issued by any governmental authority in connection with the Parcel.
The Land, less and except all of the matters in Section 2of this Quitclaim Deed, is referred to as
Parcel
the“.”
2.EXCEPTING THEREOUT AND THEREFROM, however, and reserving to the
GRANTOR, its successors and assigns, together with the right to grant and transfer all or a
portion of the same, the following:
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2.1Any and all oil, oil rights, minerals, mineral rights, natural gas, natural gas rights
and other hydrocarbon by whatsoever name known, geothermal steam and all products derived
from any of the foregoing, that may be within or under the Parcel together withthe perpetual
right of drilling, mining, exploring for and storing in and removing the same from the Parcel or
any other land, including the right to whipstock or directionally drill and mine from lands other
than the Parcel, oil or gas wells, tunnels andshafts into, through or across the subsurface of the
Parcel and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under
and beneath or beyond the exterior limits thereof, and to re-drill, re-tunnel, equip, maintain,
repair, deepen and operate any such well or mines; but without, however, the right to enter upon
or use the surface of the Parcel in the exercise of such rights or otherwise adversely affect the use
or operation of the Parcel as anticipated by this Agreement or the structural integrity of any
improvements on the Parcel; and
2.2Any and all water, water rights or interests therein appurtenant or relating to the
Parcel or owned or used by the City in connection with or with respect to the Parcel no matter
how acquired by the City, whether such water rights shall be riparian, overlying, appropriative,
littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the
perpetual right and power to explore, drill, re-drill and remove the same from or in the Parcel, to
store the same beneath the surface of the Parcel and to divert or otherwise utilize such water,
rights or interests on any other property owned or leased by the City; but without, however, the
right to enter upon or use the surface of the Parcel in the exercise of such rights or otherwise
adversely affect the use or operation of the Parcel as anticipated by this Agreement or the
structural integrity of any improvements on the Parcel;
Notwithstanding anything to the contrary set forth inthis Quitclaim Deed, the reservation
by the GRANTOR of the rights and interests in this Section2shall not be deemed to limit the
GRANTEE’S right to construct foundations and other subsurface improvementsand otherwise
engage in subsurface construction activityin order to construct improvements on the Parcel.
3.SUBJECT TO THE FOLLOWING NOTICES, COVENANTS, RESTRICTIONS, AND
CONDITIONS, which shall be binding upon and enforceable against theParceland the
GRANTEE, and its successors and assigns, in perpetuity:
3.1The GRANTEE agrees to accept conveyance of theParcelsubject to all
covenants, conditions, restrictions, easements, rights-of-way, reservations, rights, agreements
and encumbrances of record, including, without limitation, the DDA, the Memorandum of DDA,
and the Special Restrictions, which are covenants running with the land and are binding upon the
GRANTEE and all successors and assigns of the GRANTEE owning all or any portion ofParcel
for the benefit of the GRANTOR and its successors and assigns, unless or until such
responsibilities and obligations are released pursuant to the provisions of the aforesaid
documents, including the release of obligations under the DDA that GRANTEE may obtain
pursuant to a Certificate of Compliance(as defined and further provided for in the DDA)
executed by the City and recorded against the Parcel.
3.2The Government Deed conveying theParcelto the GRANTOR was recorded
prior to recordation of this Quitclaim Deed. The GRANTOR has no knowledge regarding the
accuracy of information provided by the Government regarding the environmental condition of
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theParceland makes no warranties regarding the environmental conditions of theParcel. The
GRANTOR has no knowledge regarding the accuracy or adequacy of the Government’s
remediation of theParcelas provided in the Government Deed.
3.3The italicized information below is copied verbatim (except as discussed below)
from Sections 2.2 through 2.6,and Sections 2.8, 2.9and 3of the Government Deed conveying
the GrantorProperty to the GRANTOR. To the extent applicable to theParcelconveyed
hereunder, by acceptance of this Quitclaim Deed, the GRANTEE,on behalf of itself and its
successors and assigns acquiring fee title to all or any portion of the Property, hereby
acknowledges and assumes all responsibilities placed upon the GRANTOR under the terms of
the aforesaid Government Deedsolely with respect to the Parcel conveyed hereunder. Within
the italicized information contained in this Section 3.3only, the term “Grantor” shall mean the
Government, the term “Grantee” shall mean the City of Tustin and the term “Property” shall
mean the Grantor Property, including, without limitation, theParcel. To avoid confusion, within
the italicized information,the word “Government” has been added in brackets after the word
“Grantor”, and the words “City of Tustin” have been added in bracketsafter the word “Grantee.”
2.2FOSTshavebeen completed and an Environmental Baseline Survey (“EBS”)
report is referenced in the FOSTs. The FOSTsand EBS reference environmental conditions on
the Property and on other property not subject to this Deed. GRANTEE \[“City of Tustin”\]
acknowledges that it has received copies of the EBS and the FOSTsand that all documents
referenced therein have beenmade available to GRANTEE \[“City of Tustin”\] for inspection and
copying.
2.3Except as otherwise provided herein, or as otherwise provided by law, the
GRANTEE \[“City of Tustin”\] acknowledges that it has inspected, is aware of and accepts the
condition and state of repair of the Property, and that the Property is conveyed “as is” and
“where is” without any representation, promise, agreement, or warranty on the part of the
GRANTOR \[“Government”\] regarding such condition and state of repair, or regarding the
making of any alterations, improvements, repairs or additions. Except for the environmental
remediation which may be required to be undertaken by GRANTOR\[“Government”\] pursuant
to paragraph 2.6 below, the GRANTEE\[“City of Tustin”\] further acknowledges that the
GRANTOR\[“Government”\] shall not be liable for any latent or patent defects in the Property
except to the extent required by applicable law.
Asbestos Containing Material
2.4.
2.4.1.GRANTEE\[“City of Tustin”\]is hereby informed an does hereby
acknowledge that hazardous materials in the form of asbestos or asbestos-containing materials
(“ACM”) have been and found and areotherwise presumed to exist in Buildings/Structures 10P,
516, 567, 3002T, 6168, and 6480 on the Property. The EBS and FOSTsdisclose the presence of
known asbestos or ACM hazards in such buildings and structures on the Property.
2.4.2GRANTEE\[“City of Tustin”\]covenants, on behalf of itself, its successor
and assigns, as a covenant running with the land, that it will prohibit occupancy and use of
buildings and structures, or portions thereof, containing known asbestos or ACM hazards prior
to abatement of such hazards. In connection with its use and occupancy of the Property,
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including, but not limited to, demolition of buildings and structures containing asbestos or ACM,
it will comply with all applicable federal, state and local laws relating to asbestos and ACM.
2.4.3An ACM survey has not been conducted for Structure39.GRANTEE
\[“City of Tustin”\] shall prohibit occupancy and use of Structure 39 and portions thereof until
ACM surveys have been conducted by GRANTEE\[“City of Tustin”\]or its successors and
assigns, and any necessary abatement required under applicable federal, state and local laws
relating to asbestos and ACM has been completed by GRANTEE\[“City of Tustin”\]or its
successor sand assigns.
2.4.4The GRANTOR\[“Government”\]shall provide a notice of release, in
recordable form, to the GRANTEE\[“City of Tustin”\]at such time as demolition of any buildings
on the Property containing ACM has been completed and the appropriate government regulatory
agency(s) have confirmed in writing to the GRANTEE\[“City of Tustin”\]that ACM has been
removed from the buildings and any necessary soil remediation has been conducted in
accordance with all applicable federal, state, and local laws and regulations. This notice of
release shall be deemed to remove all notices and restrictions relating to ACM from the
Property. The GRANTOR\[“Government”\]shall have no obligation under this subparagraph
for the demolition of buildings or the removal of ACM or soil remediation related to such
demolition or removal action.
Lead Based Paint (LBP)
2.5.
2.5.1.The Property may include improvements that are presumed to contain
LBP because they are thought to have been constructed prior to 1978. Buildings23A, 23B, 23C,
23D, 23E, and 23Farerestricted from residential use and children are not allowed to occupy
the buildings. When thesebuildings aredemolished, the GRANTEE\[“City of Tustin”\], or its
successors and assigns, will be required to demolish the buildingsin accordance with applicable
laws and conduct post-demolition sampling and abatement of any soil-lead hazards related to
the demolition prior to occupation of any newly constructed buildings. Lead from paint, paint
chips, and dust can pose health hazards if not managed properly. Pursuant to 40 CFR Section
745.113 the following notice is provided: “Every purchaser of any interest in residential real
property on which a residential dwelling was built prior to 1978 is notified that such property
may present exposure to lead from lead-based paint that may place young children at risk of
developing lead poisoning. Lead poisoning in young children may produce permanent
neurological damage, including learning disabilities, reduced intelligence quotient, behavioral
problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant
women. The seller of any interest in residential real property is required to provide the buyer
with any information on lead-based paint hazards from risk assessments or inspections in the
seller’s possession and notify the buyer of any known lead-based paint hazards. A risk
assessment or inspection for possible lead-based paint hazards is recommended prior to
purchase.”
2.5.2The GRANTEE\[“City of Tustin”\]hereby acknowledges the required
disclosure of the presence of any known LBP and/or LBP hazards in target housing constructed
prior to 1978 in accordance with the Residential Lead-Based Paint Hazard Reduction Act of
1992, 42 U.S.C. Section 4852d (Title X). The GRANTEE\[“City of Tustin”\]acknowledges the
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receipt of available records and reports pertaining to LBP and/or LBP hazards and receipt of
the Environmental Protection Agency (EPA) approved pamphlet “Protect Your Family from
Lead in Your Home” (EPA 747-K-94-001). Furthermore, the GRANTEE\[“City of Tustin”\]
acknowledges that it has readand understood the EPA pamphlet.
2.5.3The GRANTEE\[“City of Tustin”\]covenants and agrees that, in any
improvements on the Property defined as target housing by Title X and constructed prior to
1978, LBP hazards will be disclosed to potential occupantsin accordance with Title X before use
of such improvements as a residential dwelling (as defined in Title X). Further, the GRANTEE
\[“City of Tustin”\]covenants and agrees that LBP hazards in target housing will be abated in
accordance with Title X beforeuse and occupancy as a residential dwelling. “Target housing”
means any housing constructed prior to 1978, except housing for the elderly or persons with
disabilities (unless any child who is less than six \[6\] years of age resides, or is expected to
reside, in such housing) or any zero-bedroom dwelling.
2.5.4The GRANTEE\[“City of Tustin”\]covenants and agrees that in its use
and occupancy of the Property, it will comply with Title X and all applicable federal, state, and
local laws relating to LBP. TheGRANTEE\[“City of Tustin”\]acknowledges that the GRANTOR
\[“Government”\]assumes no liability for damages for personal injury, illness, disability, or
death to the GRANTEE\[“City of Tustin”\], or to any other person, including members of the
general public,arising from or incident to the purchase, transportation, removal, handling, use,
disposition, or other activity causing or leading to contact of any kind whatsoever with LBP on
the Property, arising after the conveyance of the Property from the GRANTOR\[“Government”\]
to the GRANTEE\[“City of Tustin”\], whether the GRANTEE\[“City of Tustin”\]has properly
warned, or failed to properly warn, the persons injured.
2.5.5The GRANTOR\[“Government”\]shall provide a notice of release, in
recordable form, to the GRANTEE\[“City of Tustin”\]at such time as demolition of the buildings
on the Property containing LBP has been completed and the appropriate government regulatory
agency(s) have confirmed in writing to the GRANTEE\[“City of Tustin”\]that LBP has been
removed from the buildings and any necessary soil remediation has been conducted in
accordance with all applicable federal, state, and local laws and regulations. This Notice of
Release shall be deemed to remove all notices and restrictions relating to LBP from the
Property. The GRANTOR\[“Government”\]shall have no obligation under this subparagraph
for the demolition of buildings or the removal of LBP or soil remediation related to such
demolition or removal action.
NoticesAnd Covenants
2.6:
Notices: Hazardous Substance Notification
2.6.1.. Pursuant to 42 U.S.C.
§9620(h)(3)(A), and the provisions of 40 C.F.R. part 373, the GRANTOR \[“Government”\]
hereby gives notice that hazardous substances were stored for one year or more, released or
disposed of on the Property. The information contained in this notice is required by regulations
promulgated under Section120(h) of the Comprehensive Environmental Response, Liability, and
Compensation Act (CERCLA or “Superfund”), 42 U.S.C.Section 9620(h).The GRANTOR
\[“Government”\]has made a complete search of its files and records concerning the Property.
Based on that search, the type and quantity of such hazardous substances, the time at which such
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storage, release or disposal took place, to the extent such information is available, and a
description of the remedial action taken, if any is contained in Exhibit “B”.
Grant of Covenant \[CERCLA 42 U.S.C. Section 9620 (h)(3)(A)(ii)(I)\]
2.6.2..
The GRANTOR \[“Government”\]covenants and warrants that all remedial action necessary to
protect human health and the environment with respect to any hazardous substance remaining
on the Property has been taken before the date of transfer.
Additional Remediation Obligation \[CERCLA 42 U.S.C. Section 9620
2.6.3.
(h)(3)(A)(ii)(II)\]
.The GRANTOR \[“Government”\]covenants and warrants that GRANTOR
\[“Government”\]shall conduct any additional remedial action found to be necessary after the
date of transfer for any hazardous substance existing on the Property prior to the date of this
Deed. This covenant shall not apply to the extent that the GRANTEE \[“City of Tustin”\]caused
or contributed to any release or threatened release of any hazardous substance, pollutant, or
contaminant.
Access \[CERCLA 42 U.S.C. Section 9620 (h)(3)(A)(iii)\]
2.6.4.. In connection
with GRANTOR’S \[“Government”\]covenant in 2.6.3 above and in connection with ongoing
remediation on GRANTOR’S \[“Government”\]property adjacent to the Property, GRANTEE
\[“City of Tustin”\]agrees on behalf of itself, its successors and assigns, as a covenant running
with the land, that GRANTOR \[“Government”\], or its officers, agents, employees, contractors
and subcontractors, shall have the right, upon reasonable notice to GRANTEE \[“City of
Tustin”\], to enter upon the Property in any case in which a response or corrective action is
found to be necessary at such property after the date of this deed or such access is necessary to
carry out a response action or corrective action on adjoining property. Neither GRANTEE
\[“City of Tustin”\], nor its successors and assigns, shall have any claim on account of such
entries against the United States or any of its officers, agents, employees, contractors or
subcontractors. The right to enter shall include the right to conduct tests, investigations and
surveys, including, where necessary, drilling, test-pitting, boring and other similar activities.
Such right shall also include the right to construct, operate, maintain or undertake any other
response or corrective action as required or necessary, including, but not limited to monitoring
wells, pumping wells and treatment facilities, and the installation of associated utilities. In
exercising these rights of access, except in case of imminent and substantial endangerment to
human health or the environment, the GRANTOR \[“Government”\](1) shall give the GRANTEE
\[“City of Tustin”\]reasonable notice of any action to be taken related to such remedial or
corrective actions on the Property, and (2)make reasonable efforts to minimize interference with
the on-going use of the Property. Furthermore, the GRANTOR \[“Government”\]and GRANTEE
\[“City of Tustin”\]agree to cooperate in good faith to minimize any conflict between the
necessary environmental investigation and remediation activities and the GRANTEE’s \[“City of
Tustin”\]use of the Property. Any inspection, survey, investigation or other response, corrective
or remedial action undertaken by GRANTOR \[“Government”\]will, to the maximum extent
practical, be coordinated with representatives designated by the GRANTEE \[“City of Tustin”\].
In connection with GRANTOR’s \[“Government”\]remedial actions described
above, GRANTEE \[“City of Tustin”\]agrees on behalf of itself, its successors and assigns, as a
covenant running with the land, to comply with the provisions of any health or safety plan in
effect duringthe course of any such action.
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Indemnification Regarding Transferees
2.8. The GRANTOR \[“Government”\]
hereby recognizes its obligations under Section 330 of the National Defense Authorization Act of
1993 (Pub. L. 102-484), as amended, regarding indemnification of transferees of closing
Department of Defense property.
Non-Discrimination
2.9. GRANTEE \[“City of Tustin”\]covenants for itself, its
successors and assigns, that it will comply with all applicable provisions of the Civil Rights Act
of 1964, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in
Employment Act of 1975 in the use, occupancy, sale or lease of the Property. The foregoing shall
not be construed to prohibit the operation of federal or state approved programs focusing on the
special needs of the homeless, veterans, victims of domestic violence and other classes of persons
at risk; nor shall it be construed to prohibit employment practices not otherwise prohibited by
law. The GRANTOR \[“Government”\]shall be deemed a beneficiary of this covenant without
regard to whether it remains the owner of any land or interest therein in the locality of the
Property hereby conveyed and shallhave the sole right to enforce this covenant in any court of
competent jurisdiction.
NO HAZARD TO AIR NAVIGATION
3.: GRANTEE \[“City of Tustin”\]covenants
for itself, its successors and assigns, that in connection with any construction or alteration on the
Property, it will obtain a determination of no hazard to air navigation from the Federal Aviation
Administration in accordance with Title 14, Code of Federal Regulations, part 77, entitled
“Objects Affecting Navigable Airspace,” or under the authority ofthe Federal Aviation Act of
1958, as amended.
3.4The responsibilities and obligations placed upon the GRANTOR by the
Government shall run with the land and be binding on the GRANTEE and all subsequent owners
of theParcelor any portion thereof, unless and until such responsibilities and obligations are
released pursuant to the provisions set forth in the Government Deed.
3.5As further set forth inthe DDA, and subject to the terms and conditions thereof,
GRANTEE acknowledges that it has examined theParceland is buying theParcelfrom the
GRANTOR in an “AS IS, WHERE IS, WITH ALL FAULTS” condition, in its present state and
condition and with all faults, which provisions shall survive the close of escrow related to this
transaction and do not merge with this Quitclaim Deed.
DDA Provisions
4..
Definitions
4.1.Pursuant to the DDA, the City has imposed certain covenants,
conditions and restrictions on the Parcel, including the releases contained in Section4.5.2of the
DDA, which are set forth verbatim below in italics and each of which is hereby declared to be a
covenant running with the land in perpetuity. Within the italicized language which follows,
section references shall be to sections of the DDA, references to "this Agreement" shall mean the
\[insert Effective Date of DDA\]
DDA,references to the “Effective Date” shall mean and initially
capitalized terms shall have the meanings set forth in Exhibit “C”attached hereto and
incorporated herein by this reference.
Releases
4.2.Section 4.5.2(f)of the DDA provides as follows:
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(f)Release.Developer, on behalf of itself and each Successor Owner and every
Person claiming by, through or under Developer or any Successor Owner (each a
Releasing Party
“”), hereby waives, as of the Effective Date, and agrees to waive, as
of . . . Close of Escrow, the right of each Releasing Party to recover from, and fully
and irrevocably releases, the City and its elected and appointed officials, employees,
agents, attorneys, affiliates, representatives, contractors, successors and assigns
Released PartyReleased Parties
(individually, a “” and collectively, the “”) from any
and all Claims that Developer or any Releasing Party may now have or hereafter
suffer or acquire arising from or related to: (i)any Due Diligence Information, (ii)
any condition of the Property or any current or future improvement thereon, known or
unknown by any Releasing Party or any Released Party, including as to the extent or
effect of any gradingof the Development Parcels; (iii) any construction defects,
errors, omissions or other conditions, latent or otherwise,including environmental
matters, as well aseconomic and legal conditions on or affecting the Property,or any
portion thereof;(iv)the existence, Release, threatened Release, presence, storage,
treatment, transportation or disposal of any Hazardous Materials at any time on, in,
under, or from, the Property or any current or future improvement thereon or any
portion thereof; (v)Claims of or acts or omission to act of any Governmental
Authority or any other third party arising from or related to any actual, threatened, or
suspected Release of a Hazardous Material on, in, under, or from,about, or adjacent
tothe Property or any current orfuture improvement thereon, including any
Investigation or Remediation at or about the Property or any current or future
improvement thereon; and/or (vi)arising fromor related tothe Tustin Legacy Fair
Share Backbone Infrastructure Program, any community facilities district or the cost
or extent thereof, or the amount of the Project Fair Share Contribution or any
community facilities district assessment against the Property, Development Parcels
and/or Improvements described in this Agreement; provided that the foregoing release
by the Releasing Parties shall not extend to (A) any breach by the City of any of the
representations or warranties of the City set forth in Sections 3.3 or 18.12 of this
Agreement, (B) any breach by the City of any of the covenants or obligations set forth
in this Agreement or any Other Agreement, (C) any Claim that is the result of the
gross negligenceorwillful misconduct of the City, or (D) any actions of the City or
any of the Released Parties affecting a portion of the Property which occur following
the Close of Escrow with respect to such portion of the Property. This release
includes Claims of which Developer is presently unaware or which Developer does
not presently suspect to exist which, if known by Developer, would materially affect
Developer’s release of the Released Parties. Developer specifically waives the
provision of California Civil Code Section1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.”
In this connection and to the extent permitted by law, Developer on behalf of itself,
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and the other Releasing Parties hereby agrees,represents and warrants, which
representation and warranty shall survive . . .Close of Escrow and the termination of
this Agreement and shall not be merged with any Quitclaim Deed,that (x) it realizes
and acknowledges that factual matters now unknown to it may have given or may
hereafter give rise to Claims or controversies which are presently unknown,
unanticipated and unsuspected, (y) the waivers and releases in this Section 4.5.2(f)
have been negotiated and agreed upon in light of that realization and (z) Developer,
on behalf of itself and the other Releasing Parties, nevertheless hereby intends to
release, discharge and acquit the Released Parties from any such unknown Claims
and controversies to the extent set forth abovewhich might in any way be included as
a material portion of the consideration given to the City by Developer in exchange for
the City’s performance hereunder.
BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES
THAT (A)IT HAS READ AND FULLY UNDERSTANDS THE
PROVISIONS OF THIS SECTION, (B)IT HAS HAD THE
CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS
MEANING AND SIGNIFICANCE, AND (C)IT HAS ACCEPTED
AND AGREED TO THE TERMS SET FORTH IN THIS SECTION.
_____________________________________________
CITY’S INITIALSDEVELOPER’S INITIALS
\[remaining text of Section 4.5.2(f) of the DDA is intentionally omitted\]
Equitable Servitude
4.3.The release set forth inSection 4.2 of this Quitclaim Deed
is hereby declared to be an equitable servitude and a covenant running with the land comprising
the Parcel for the benefit of the City Benefited Property and the City and each Successor Owner
owning all or any portion of such City Benefited Property,burdening the Parcel and GRANTEE
and the Successor Owners owning all or any portion of the Parcel and all Persons claiming by,
through or under GRANTEEor any Successor Owner of the Parcel or any portion thereof (and
for such additional period as may be applicable during the period in which the DDA remains
effective)and to further evidence its effectiveness with respect to GRANTEEand the Successor
Owners of the Parcel has been included in its entirety in this Quitclaim Deed.
5.This Quitclaim Deed is made and accepted upon (a) the covenants, conditions,
restrictions and other matters set forth in the Special Restrictions, which areincorporated herein
by reference with the same force and effect as though fully set forth herein, and (b) subject to
reservations, covenants and restrictions as set forth in the Government Deed. Each future
transfer or conveyance of theParcelor any portion thereof shall include notice of the
SpecialRestrictions and in addition shall include those disclosures and environmental covenants
contained in the Government Deed.
5.The terms of this Quitclaim Deedare hereby agreed and declared by the GRANTEE and
the GRANTOR to be covenants running with the land and enforceable as restrictions and
equitable servitudes against theParcel, and are hereby declared tobe and shall be binding upon
theParceland the GRANTEE and all successors and assigns of the GRANTEE owning all or
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any portion of theParcelfor the benefit of the City Benefited Property (legally described on
Exhibit “D”attached to this Quitclaim Deed and incorporated herein by this reference) and the
GRANTOR,and the GRANTOR shall retain the right to enforce the restrictions and equitable
servitudes against the Parceland the same shall be enforceable solely by the GRANTOR
notwithstanding any future transfer of the City Benefited Property or any interest therein or
portion thereof.
{remainder of page is blank}
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IN WITNESS WHEREOF, the GRANTOR, THE CITY OF TUSTIN, has caused this
Quitclaim Deed to be executed on the day first above written.
CITY OF TUSTIN
CITY OF TUSTIN:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:_____________________________
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:
_____________________________
_
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
SpecialTustin Counsel
By:_____________________________
Amy E. Freilich
{signatures continued on next page}
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ACKNOWLEDGEMENT OF GRANTEE’S COVENANTS
BY EXECUTING THIS QUITCLAIM DEED BELOW, ON AND AS OF THE DATE
WRITTEN BELOW, GRANTEE HEREBY ACKNOWLEDGESAND ACCEPTSon behalf of
itself and all subsequent owners of the Parcel or any portion thereof: (A)this Quitclaim Deed
and the covenants and agreementsof the GRANTEEcontained in this Quitclaim Deedand
(B)the Special Restrictions and assumesand agrees to be bound by all of the obligations and
liabilities, covenants, conditions,and restrictions in the Special Restrictionswhich are the
responsibility of the “Developer” thereunder.
1C TUSTIN LEGACY, LLC,
aDelaware limited liability company
By:Regency Centers, L.P.,
aDelaware limited partnership,
Its Sole Member
By:Regency Centers Corporation,
a Florida corporation,
Its General Partner
Dated: __________________By: ________________________
John Mehigan
Vice President
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
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Exhibit “A”
Legal Description ofParcel
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Exhibit “B”
Description of the Remedial Action Takenby the Government
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EXHIBIT “C”
DDA Definitions Applicable to Section 4.2 of the Quitclaim Deed
Agreement
“” shall mean the DDAas defined in this Quitclaim Deed.
City
“” shall mean the GRANTOR as defined in this Quitclaim Deedand each assignee or
successor to the City’s rights and powers under this Quitclaim Deed.
City Benefited Property
“” shall mean the “City Benefited Property” legally described
onExhibit “D”to this Quitclaim Deed.
ClaimClaims
“” or “” shall mean any and all claims, actions, causes of action, demands,
orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses
(including attorneys’ fees, fees of expert witnesses, and consultants’ and court and litigation
costs), costs and expenses attributable to compliance with judicial and regulatory orders and
requirements, fines, penalties, liens, taxes, or any type of compensation whatsoever, direct or
indirect, known or unknown, foreseen or unforeseen.
Close of Escrow
“” shall mean the Quitclaim Date.
Developer
“” shall mean the GRANTEE pursuant to this Quitclaim Deed and all
subsequent owners of the Parcel or any portion thereof.
Development Parcels
“” shall mean the “Land” as defined in this Quitclaim Deed.
DA
“” shall mean the Development Agreement by and between GRANTORand
GRANTEEwith respect to the Parcel Recorded on _______________, as Instrument
No._______________________.
Due Diligence Information
“” shall mean any and all information or documentation
relating to the Property furnished to GRANTEE by GRANTOR, or its elected and appointed
officials, employees, agents, attorneys, affiliates, representatives, contractors or consultants, in
connection with Developer’s due diligencepursuant to the DDA.
Environmental Agency
“” shall mean the United States Environmental Protection
Agency; the California Environmental Protection Agency and all of its sub-entities, including
any Regional Water Quality Control Board, the State Water Resources Control Board, the
Department of Toxic Substances Control, the South Coast Air Quality Management District, and
the California Air Resources Board; the City of Tustin; any Fire Department or Health
Department with jurisdiction over the Property; and/or any other federal, State, regional or local
governmental agency or entity that has or asserts jurisdiction over Hazardous Substance Releases
or the presence, use, storage, transfer, manufacture, licensing, reporting, permitting, analysis,
disposal or treatment of Hazardous Materials in, on, under, about, or affecting the Project, the
Development Parcels or any Improvements thereon.
Environmental Laws
“” shall mean any federal, state, regional or local laws, ordinances,
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rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence
as of March 11, 2014 or as later enacted, promulgated, issued, modified or adopted, regulating or
relating to Hazardous Materials, and all applicable judicial, administrative and regulatory
decrees, judgments and orders and common law, including those relating to industrial hygiene,
public safety, human health, or protection of the environment, or the reporting, licensing,
permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage,
discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous
Materials. Environmental Laws shall include the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section9601, et seq.)
CERCLA
(“”); the Resource Conservation and Recovery Act, as amended, (42 U.S.C.
RCRA
Section6901 et seq.) (“”); the federal Water Pollution Control Act, as amended,
(33U.S.C. Section1251 et seq.); the Toxic Substances Control Act, as amended, (15 U.S.C.
Section2601 et seq.); the Hazardous Substances Account Act (Chapter6.8 of the California
Health and Safety Code Section25300et seq.); Chapter 6.5 commencing with Section25100
(Hazardous Waste Control) and Chapter6.7 commencing with Section25280 (Underground
Storage of Hazardous Substances) of the California Health and Safety Code; and the California
Water Code, Sections13000 et seq.
Governmental Authority
“”shall meanany and all federal, State, county, municipal and
local governmental and quasi-governmental bodies and authorities (including the United States
of America, the Stateof California and any political subdivision, public corporation, district,
joint powers authority or other political or public entity) or departments thereof having or
exercising jurisdiction over GRANTOR and GRANTEE, the Project, the Property or such
portions of the foregoing as the context indicates.
Hazardous Materials
“” shall mean and include the following:
Hazardous SubstanceHazardous MaterialHazardous Waste
(a)“”, “”, “”,
Toxic Substance
or “” under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. subsection9601, et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. subsection5101, et seq., or the Resource Conservation and
Recovery Act, 42 U.S.C. subsection6901, et seq.;
Extremely Hazardous WasteHazardous Waste
(b)An “”, a “”, or a
Restricted Hazardous Waste
“”, under subsections25115, 25117, or 25122.7 of the California
Health and Safety Code, or is listed or identified pursuant to subsection25140 or 44321 of the
California Health and Safety Code;
Hazardous MaterialHazardous SubstanceHazardous Waste
(c)“”, “”, “”,
Toxic Air ContaminantMedical Waste
“”, or “” under subsections25281, 25316, 25501,
25501.1, 117690 or 39655 of the California Health and Safety Code;
OilHazardous Substance
(d)“” or a “” listed or identified pursuant to
Section311of the Federal Water Pollution Control Act, 33 U.S.C. Section1321, as well as any
other hydro carbonic substance or by-product;
Hazardous WasteExtremely Hazardous
(e)Listed or defined as a “”, “
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WasteAcutely Hazardous Waste
”, or an “” pursuant to Chapter11 of Title 22 of the California
Code of Regulations;
(f)Listed by the State as a chemical known by the State to cause cancer or
reproductive toxicity pursuant to Section25249.8 of the CaliforniaHealth and Safety Code;
(g)A material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures damages or threatens to damage, health,
safety, or the environment, or is required by any law or public agency to be remediated,
including remediation which such law or public agency requires in order for the property to be
put to any lawful purpose;
(h)Any material whose presence would require remediation pursuant to the
guidelines set forth in the StateLeaking Underground Fuel Tank Field Manual, whether or not
the presence of such material resulted from a leaking underground fuel tank;
(i)Pesticides regulated under the Feral Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. subsection136 et seq.;
(j)Asbestos, PCBs and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. subsection2601 et seq.;
(k)Any radioactive material including any “source material”, “special nuclear
material”, “by-product material”, “low-level wastes”, “high-level radioactive waste”, “spent
nuclear fuel” or “transuranic waste”, and any other radioactive materials or radioactive wastes,
however produced, regulated under the Atomic Energy Act, 42U.S.C. subsection2011 et seq.,
the Nuclear Waste Policy Act, 42 U.S.C. subsection10101 etseq., or pursuant to the California
Radiation Control Law, California Health and Safety Code Section114960 et seq.;
(l)Regulated under the Occupational Safety and Health Act, 29U.S.C.
subsection651 et seq., or the California Occupational Safety and Health Act, California Labor
Code subsection6300 et seq.; and/or
(m)Regulated under the Clean Air Act, 42 U.S.C. subsection7401 etseq. or
pursuant to Division 26 of the California Health and Safety Code.
Improvements
“” shall mean the various improvements, including without limitation,
buildings, structures,and accompanying amenities and above and below ground infrastructure
improvements, including, without limitation, utilities, utility extensions, utility systems,
landscaping, hardscaping, storm drains and detention facilities, constructed or to be constructed
on the Property by GRANTEE as contemplated by the DDA.
Investigation(s)
“” shall mean any observation, inquiry, examination, sampling,
monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying
of or concerning the Property, including the air, soil, surface water, and groundwater, and the
surrounding population or properties, or any of them, to characterize or evaluate the nature,
extent or impact of Hazardous Materials.
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Other Agreements
“” shall mean this Quitclaim Deed,the Special Restrictions, the
Memorandum of DDA, the Slope Parcel Easement and Landscape Installation and Maintenance
Agreement, the CC&Rs and the DAto which the Parcel is subjectand which are Recorded
substantially concurrently with the Recording of this Quitclaim Deed.
Person
“” shall mean an individual, partnership, limited partnership, trust, estate,
association, corporation, limited liability company, joint venture, firm, joint stock company,
unincorporated association, Governmental Authority, governmental agency or other entity,
domestic or foreign.
Project
“” shall mean the construction and installation on the Parcel of the Improvements
(as defined in this Quitclaim Deed).
Project Fair Share Contribution
“” shall mean the fair share of the Tustin Legacy
Backbone Infrastructure Program funding paid by the GRANTEE.
Property
“” shall mean the “Parcel” asdefined in this Quitclaim Deed, together with all
existing improvements, if any, located thereon as of the Effective Date of this Quitclaim Deed.
Quitclaim Deed
“” shall mean this Quitclaim Deed.
RecordRecordationRecordingRecorded
“”, “”, “” and “” shall mean to record the
specified instrument, or the current or past recording of the specified instrument, in the official
records of Orange County California.
Release
“” (with respect to Hazardous Materials) shall mean any releasing, or threat of
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing, or dumping into the environment.
RemediateRemediation
“” or“” shall mean any response or remedial action as defined
under Section101(25) of CERCLA, and similar actions with respect to Hazardous Materials as
defined under comparable state and local laws, and any other cleanup, removal, containment,
abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or
other mitigation or remediation of Hazardous Materials or Releases required by any
Environmental Agency or within the purview of any Environmental Laws.
State
“” shall mean the State of California.
Successor Owner
“” shall mean shall mean (a)with respect to the Parcel, each and every
Person owning oracquiring fee title to or having a ground lease interest in all or any portion of
the Parceland(b)with respect to the City BenefitedProperty, each and every Person owning or
acquiring fee title to all or any portion of the City Benefited Property.
Tustin Legacy Backbone Infrastructure Program
“” shall mean the Tustin Legacy
Backbone Infrastructure Program in effect as ofSeptember, 2015.
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Exhibit “D”
Legal Description of City Benefited Property
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ATTACHMENT 12
MEMORANDUM OF DDA
CITY OF TUSTIN OFFICIAL
BUSINESS REQUEST
DOCUMENT TO BE
RECORDED AND TO BE
EXEMPT FROM RECORDING
FEES PER GOVERNMENT
CODE §6103 AND §27383.
Recording requested by and
when recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
MEMORANDUM OF
DISPOSITION AND DEVELOPMENT AGREEMENT
(PARCEL 1C)
This MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
Memorandum of DDA
(PARCEL 1C) (this "") is made as of ________, 20__ (the
Memorandum Effective Date
"")by and among the CITY OF TUSTIN, a municipal corporation
City
of the State of California ("") and 1C TUSTIN LEGACY, LLC, a Delaware limited liability
Developer
company(""), to confirm that the City and the Developer have entered into that
certain Tustin Legacy Disposition and Development Agreement for Disposition Parcel 1C, dated
DDA
as of _________________, 2015 (the ""). The City and the Developer are sometimes
PartyParties
referred to herein individually as a ""and collectively as the "."Initially capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to such terms in
the DDA.
1.Real Property Affected by the DDA.
1.1.The Development Parcels. The property affected by the DDA consists of
the real property legally described and depicted on Exhibit "A"attached hereto and incorporated
herein by reference but excepting therefrom the matters set forth in Section2 of the Quitclaim
Development Parcels
Deed (as defined below) (taking into account such exceptions, the""),
together with (a)all existing improvements, if any, presently located thereon, and (b)all
appurtenances pertaining to the Development Parcels or such improvements, and (c)all permits,
licenses, approvals and authorizations issued by any Governmental Authority in connection with
Property
the Development Parcels (collectively, the "").
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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9-24-2015 (Agd) FINAL.Docx
1.2.Quitclaim Deed. Immediately following the recordation of this
Memorandum of DDA, a portion of the Property shall be conveyed by the City to Developer
pursuant to, among other conveyance instruments, that certain "RETAIL PROPERTY
QUITCLAIM DEED FOR A PORTION OF PARCEL 1C AND COVENANTS, CONDITIONS
AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTION PURSUANTTO
Retail Property Quitclaim Deed
CIVIL CODE SECTION 1471"(the "").Thereafter another
portion of the Property may be conveyed pursuant to, among other conveyance instruments, one
or more instruments denominated "HEALTHCARE PROPERTY QUITCLAIM DEED FOR A
PORTION OF PARCEL 1C AND COVENANTS, CONDITIONS AND RESTRICTIONS,
INCLUDING ENVIRONMENTAL RESTRICTIONS PURSUANTTO CIVIL CODE
Healthcare Property Quitclaim Deed(s)
SECTION 1471 (the ""; the Healthcare Property
Quitclaim
Quitclaim Deed(s)and the Retail Property Quitclaim Deed individually, each a "
DeedQuitclaim Deeds
"and collectively, the "").
1.3.Special Restrictions. This Memorandum of DDA has been executed as of
the Memorandum Effective Date and shall be recorded in the Office of the County Recorder,
Official Records
Orange County, California (the "") prior to the recordation in the Official
Records of (i)that certain Declaration of Special Restrictions for Parcel 1C executed by the City
Special
and acknowledged by Developer affecting the Development Parcels (the "
Restrictions
"), (ii)the Retail Property Quitclaim Deed, and (iii) the Healthcare Property
Quitclaim Deed(s). The DDA, this Memorandum of DDA, and the Special Restrictions and all
covenants, conditions, restrictions and obligations set forth in (a)the Retail Property Quitclaim
Deed, with respect to the portion of the Property conveyed by the Retail Property Quitclaim
Deed,and the Healthcare Property Quitclaim Deed(S), with respect to the portionsof the
Property conveyed by eachHealthcare Property Quitclaim Deed, and (b)the Special
Restrictions,shall be binding upon the Development Parcels, except that the Retail Property
Quitclaim Deed shall be binding only on the portion of the Property conveyed by the Retail
Property Quitclaim Deed,and the Healthcare Property Quitclaim Deed(s)shall only be binding
on the portion of the Property conveyed by the Healthcare Property Quitclaim Deed(s), and,
unless and until terminated in accordance with their respective terms, shall govern the use and
development of the Property by Developer.
2.Effect of the DDA. The DDA imposes certain obligations, agreements,
covenants, conditions and restrictions with respect to the Development Parcels and with respect
to Developer's and its Successor Owner's acquisition, development, use, operation and ultimate
disposition thereof, that run with the Development Parcels, unless and until terminated in
accordance with their respective terms, as further set forth in the DDA. Among these obligations
are the following:
(a)A requirement for payment of an Additional Purchase Price with respect
to the Retail Parcel, which amounts shall be due and payable within thirty (30) days after the date
upon which the first of the following occurs: (a) a single grocery store of not less than 40,000
GBA and a drug store on the Retail Parcel are fully stocked and open for a minimum of one (1)
day as a retail establishmentor (b) Tenants occupying at least 53,000 GBA on the Retail Parcel
are fully stocked and open for a minimum of one (1) day as a retail establishment;
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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(b)Certain restrictions on Transfer (including without limitation, conveyance,
lease and/or assignment) of Developer's interests under the DDA and/or in the Property (and the
Improvements located thereon)or any portion thereof or interest therein, whether voluntary or
involuntary, and certain restrictions on the Transfer of Control of Developer or Developer's
Controlling Person contained in Section2of the DDA, that will terminate as to the Development
Parcels subject thereto upon execution and recordation by the City of a Certificate of
Compliance;
(c)Certain restrictions on Mortgages contained in Sections2.2.3and 2.2.4
and Section17of the DDA, including without limitation, a prohibition on encumbrance of the
Retail Parcel and the Medical Office Parcel with any Mortgage and restrictions on encumbrance
ofthe OtherHealthcare Parcelswith any Mortgage, which limitations will terminate as to the
Development Parcels subject thereto upon execution and recordation by the City of a Certificate
of Compliance;
(d)The releases contained in Section4.5.2of the DDA,which are restated in
each of the Quitclaim Deed(s),and the indemnity and environmental provisions contained in
Section 10.1 and Section10.2of the DDA,which are restated in the Special Restrictions, each of
which remain in effect for the term set forth therein and are binding upon Developer and
Successor Owners owning all or any portion of the Development Parcels and all Persons
claiming by, through or under Developer or any Successor Owner of the Development Parcels,
as and to the extent set forth in the respective Quitclaim Deeds and the Special Restrictions;
(e)To the extent provided underthe DDA, the indemnities set forth in
Sections4.6.4(f), 5.5, 8.8, 8.9, 8.11, 8.12, 10.1, 10.2 and 18.12.1of the DDA shall (i)run with
the land, (ii)survive the Close of Escrow and shall not merge into any of the Quitclaim Deed(s),
and (iii)survive the sale of land to each Pad Transferee.
(f)The Right of Repurchase in favor of the City, contained in Section16.3of
the DDA (copied verbatim below), thatterminates as to the portion of the Development Parcels
subject thereto upon execution and recordation by the City of a Certificate of Compliance; and
(g)The Right of Reversion in favor of the City contained in Section16.4of
the DDA (copied verbatim below), that terminates as to the portion of the Development Parcels
subject thereto upon execution and recordation by the City of a Certificate of Compliance.
3.Right of Repurchase and Right of Reversion. For ease of reference only, the
following italicized Sections16.3 and 16.4are copied verbatim from the DDAand the term
Repurchase Price
“” as used herein shall have the meaning set forth in the DDA:
Right of Repurchase
16.3.
Right of
For the period described in Section16.3.4, the City shall have the right (the “
Repurchase
”), from time to time, at any time after the date that Developer became in Material
Reacquired Property
Default until such Material Default is cured to purchase the following (“”):
(a) all or any portion of the Retail Property and/or the Healthcare Property affected by the
Material Default, (b) any Improvements thereon, (c) all applicable Entitlements and other
development rights, consents, authorizations, variances, waivers, licenses, permits, certificates
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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9-24-2015 (Agd) FINAL.Docx
and approvals from any governmental orquasi-governmental authority, and (d) all other
appurtenant rights applicable to the respective Property, including the interest in any ground
leases encumbering the respective Property .The Reacquired Property designated by the City
shall be acquired by the City for the Repurchase Price less the amount of liens or Mortgages
against the Reacquired Property and otherwise in accordance with this Section16.3. The City
may exercise its Right of Repurchase by delivering written notice to Developer stating that the
City is exercising its Right of Repurchase and specifying the Reacquired Property; provided that
such notice is delivered at least ninety (90) calendar days prior to the date on which the City
requires Developer to convey the Reacquired Property to the City pursuant to the Right of
Repurchase and otherwise in accordance with this Section16.3. The Right of Repurchase shall
be a lien and encumbrance on the Property that shall be paramount to (a)the lien and charge of
any Mortgage upon the Property, except that with respect to a first priority lien that is a
Permitted Mortgage on the Other Healthcare Parcels with a Permitted Mortgagee, the
implementation of the Right of Repurchase shall be subject to the terms of the Healthcare
Subordination Agreement,and (b)the lien and charge of any mechanics’ lien that may attach to
the Property. The Reacquired Property shall be delivered to the City at close of escrow free and
clear of all liens and Mortgages and subject only to the Permitted Exceptions at the time of
Close of Escrow.
Termination of this Agreement
16.3.1. In the event the City exercises its Right of
Repurchase as to any Reacquired Property as provided in this Section16.3, this Agreement shall
terminate with respect to the Reacquired Property as of the date of the quitclaim deed conveying
to the City title to the Reacquired Property (and the Healthcare Property Option Payment if then
held by Escrow shall be paid to the City); provided that the provisions of this Section16.3 shall
survive the termination of the Agreement.
Exercise of Right of Repurchase
16.3.2. The City may exercise its Right of Repurchase
by delivering written notice to Developer stating that the City is exercising its Right of
Repurchase and specifying the Reacquired Property; provided that such notice is delivered at
least ninety (90) calendar days prior to the date on which the City requires Developer to convey
the Property to the City pursuant to the Right of Repurchase and otherwise in accordance with
this Section16.3. The Reacquired Property shall be delivered to the City at close of escrow free
and clear of all liens and Mortgages and subject only to (x)the Permitted Exceptions at the time
of the applicable original Close of Escrow for such portion of the Propertyand (y)all other
matters created in connection with the Entitlements and the development of the Project pursuant
to this Agreement.
Process
16.3.3. If the City is entitled to and elects to repurchase any designated
Reacquired Property, the Parties shall: (a)within five (5) Business Days after the date of the
City’s notice of election to exercise the Right of Repurchase, open an escrow with an escrow
agent designated by the City for the purchase and sale, and shall execute an escrow agreement
that shall providethat Developer shall pay all costs of the escrow and shall include such usual
and ordinary terms as are reasonably required by the escrow agent and by the transaction;
(b)no later than five (5) Business Days after the opening of escrow, Developer shall place into
the escrow appropriate quitclaim deeds and bill of sale conveying fee title to the Reacquired
Property; and (c)no later than eighty-five (85) calendar days after the opening of the escrow,
the City shall deposit into the escrow and amount equal to (i)the Repurchase Price minus (ii)the
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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9-24-2015 (Agd) FINAL.Docx
Lien Release Amounts, if any. The escrow shall close, and title to the Reacquired Property shall
be conveyed to the City, no later than five (5) Business Days after the City has deposited into
escrow the Repurchase Price. Concurrently with the close of escrow, Developer shall comply
with its obligations under Section14.3. Nothing herein shall restrict the right of the City to
terminate its exercise of the Repurchase Right at any time prior to the close of escrow. The
Property acquired by the City shall be free and clear of all liens and Mortgages, including
Permitted Mortgages, and subject only to the Permitted Exceptions at the time of conveyance to
the City. If and to the extent that the Repurchase Price is less than Permitted Mortgage Unpaid
Balance plus the aggregate amounts that may then be due under any other Permitted Mortgages
(and any other Mortgages that may then exist), all Mortgagees shall nonetheless execute
reconveyances of deeds of trusts, releases of mortgages, and any other documents requested by
the City to remove the liens of all Mortgages from title to the Property. The Parties agree that
the amount of reduction in the Repurchase Price as compared with the Fair Market Value of the
Property is justified in that it bears a reasonable relationship to the damages which the Parties
estimate may be suffered by the City as the result of the Developer’s Material Default in the
performance of its obligations under this Agreement, which damages would be impractical or
extremely difficult to quantify, and that the remedy provided for herein is not a penalty or
forfeiture, and is a reasonable limitation on the Developer’s potential liability as a result of
Developer’s default.
Termination of Right of Repurchase
16.3.4. The Right of Repurchase shall remain in
effect from the Close of Escrow with respect to a Parcel until (a)as to the Healthcare Parcel, the
Recording by the City of a Certificate of Compliance with respect thereto and (b)as to the Retail
Parcel, the satisfaction of the Conditions Precedent set forth in Section9.3(a), (c), (d), (e), (f),
(h) and (i)with respect to the Minimum Retail Improvements. In the event that Developer or any
Person on behalf of Developer either (a)cures the Material Default which is the basis for the
City’s exercise of its Right of Repurchase, but excluding any Transfer in violation of this
Agreement, or (b)Completes the Project prior to the closing of escrow on such Right of
Repurchase, such Right of Repurchase shall cease and terminate with respect to such Material
Default only.
Release of Liability
16.3.5. In the event the City exercises its Right of Repurchase, such
purchase shall terminate or release the obligations of Developer with respect to the Reacquired
Property except that Developer shall not be released from its obligations pursuant to
Section4.5.2(f), to return any written Due Diligence Information to the City as provided in
Section14.3 and to indemnify, defend and hold harmless the City Indemnified Parties as
provided in Sections4.6.4(f)and Section10 for matters arising or related to the period of time
prior to the conveyance of the Reacquired Property to the City and with respect to any
Developer or Healthcare Developer during the Additional Liability Period; and to indemnify,
defend and hold harmless the City Indemnified Parties as provided in Section5.5as to a Parcel
for matters arising or related to the period prior to the Close of Escrow for such Parcel, and
such obligations shall survive the close of escrow and shall not be merged into the quitclaim
deed. Following suchClose of Escrow, under no circumstances shall Developer have any right
or claim to, or against, the Reacquired Property. Notwithstanding the purchase of the
Reacquired Property by the City as provided in this Section16.3, this Agreement shall remain in
full force and effect with respect to the portions of the Property and the Project not purchased by
the City.
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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9-24-2015 (Agd) FINAL.Docx
Rights of Third Parties
16.3.6. The Right of Repurchase shall be a lien and
encumbrance on the Property that shall be paramount to the lien and charge of (a)any
Mortgage upon the Parcels or Improvements, except that with respect to a first priority lien that
is a Permitted Mortgage, the implementation of the Right ofRepurchase shall be subject to the
terms of the Healthcare Subordination Agreement and (b)any mechanics’ lien that may attach to
the Development Parcels or the Improvements thereon. The Right of Repurchase shall not defeat
or render invalid or limit anyrights or interests provided in easements, covenants, conditions or
restrictions in favor of third parties (i.e., who are not Developer, Healthcare Developer,
Developer Affiliates or HCD Affiliates) granted pursuant to Transfers approved by the City or
constituting Permitted Transfers and Recorded with respect to the Reacquired Property
repurchased hereunder.
The Right of Reversion
16.4.
Following conveyance of any portion of the Property to Developer by the City and
notwithstanding that the Reacquired Property may be encumbered by one or more Mortgages or
Permitted Mortgages, in the event of the occurrence of any Reversion Action Trigger (defined in
Section16.4.1), and in addition to its other rights or remedies as a result of the occurrence of
any such Reversion Action Trigger, the City shall have the right on the terms and subject to the
conditions set forth in this Section16.4 to re-enter and take possession of the applicable
Right of
Reacquired Property or any portion thereof and to revest title thereto in theCity (the “
Reversion
”) only in accordance with the terms of this Section16.4. Any revesting of the
Reacquired Property by the City whether based on voluntary action of Developer or otherwise
after notice by the City of its intent to exercise the Right of Reversion is referred to herein as a
Reversion Event
“”. The City shall be entitled to exercise the Right of Reversion at any time on
or after the occurrence of any of any one or more of the Reversion Action Triggers only with
respect to the respective Retail Property or Healthcare Property that is the subject of the
Reversion Action Trigger; provided that the City has complied with the conditions to such
reversion set forth in Section16.4.2. The Right of Reversion shall be a lien and encumbrance on
the Property that shall be paramount to (a)the lien and charge of any Mortgage upon the
Property, except that with respect to a first priority lien that is a Permitted Mortgage on the
Other Healthcare Parcelswith a Permitted Mortgagee, the implementation of the Right of
Reversion shall be subject to the terms of the Healthcare Subordination Agreement, and (b)the
lien and charge of any mechanics’ lien that may attach to the Property.
Certain Defaults Triggering the Right of Reversion
16.4.1. The Right of Reversion
shall remain in effect from the Close of Escrow with respect to the Healthcare Parcel, until the
Recording of a Certificate of Compliance for the Healthcare Parcel and with respect to the
Retail Parcel, until Completion of the Minimum Retail Vertical Improvements with respect to the
Retail Parcel and thereafter shall not apply, provided that (a) the City shall not revest the Retail
Property upon occurrence of a Reversion Action Trigger solely with respect to the Healthcare
Property unless the City’s right to revest is created by a Reversion Action Trigger with respect to
the Minimum Healthcare Improvements, the Healthcare Transferor Obligations or the act or
failure to act by the Healthcare Property Transferor with respect thereto and (b) the City shall
not revest the any portion of the Healthcare Property upon occurrence of a Reversion Action
Trigger solely with respect to the Retail Property. The City may exercise the Right of Reversion
if it elects to do so with respect to only the Parcelaffected by the Material Default and any
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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9-24-2015 (Agd) FINAL.Docx
Improvements thereon and all applicable Entitlements and other development rights, consents,
authorizations, variances, waivers, licenses, permits, certificates and approvals from any
governmental or quasi-governmental authority, and all other appurtenant rights applicable
Reversion Action Trigger
thereto upon the occurrence of any of the following (each, a “,” and
the date on which the Reversion Action Trigger occurs shall be referred to herein, as the
Reversion Action Trigger Date)
“”.
(a)Developer fails to commence construction of the Minimum
Horizontal Improvements within six (6) months after the Construction Period Commencement
Date for the Retail Parcel, as such date may be extended for Force Majeure Delay;
(b)Healthcare Developer fails to commence construction of the
Minimum Healthcare Vertical Improvements within twelve (12) months after the Construction
Period Commencement Date for the Healthcare Parcel, as such date may be extended for Force
Majeure Delay;
(c)Developer fails to commence construction of the Minimum Retail
Vertical Improvements within eighteen (18) months after the Construction Period
Commencement Date for the Retail Parcel, as such dates may be extended for Force Majeure
Delay;
(d)Developer or Healthcare Developer, as to their respective
Parcels, fails to Complete construction of the Minimum Vertical Improvements within thirty-six
(36) months after the Construction Period Commencement Date applicable to such Parcel as
such date may be extended for Force Majeure Delay; provided that such Completion date shall
not under any circumstances be later than the date that is forty eight (48) months after the Close
of Escrow for such Parcel (which date shall not be extended for Force Majeure Delay);
(e)Developer or Healthcare Developer with respect to their
respective Parcels commits waste on the Property and such becomes a Material Default in
accordance with the notice and cure provisions of Section 14.2, subject to extension for Force
Majeure Delay;
(f)Developer or Healthcare Developer with respect to their
respective Parcels abandons or substantially suspends (except for suspensions resulting from
Force Majeure Delay) construction of the Project for a total period of one (1) year, and such
becomes a Material Default inaccordance with the notice and cure provisions of Section14.2.
Nothing in this Section16.4.1(f) shall extend the terms of Section16.4.1(a), (b) or (c) above;
(g)The occurrence of a Developer Insolvency Event; and
(h)A Material Default arises because of a voluntary or involuntary
Transfer or Transfer of Control.
Conditions to Exercise of the Right of Reversion
16.4.2. The City shall be entitled to
exercise the Right of Reversion at any time on or after the applicable Reversion Action Trigger
Date; provided that (a)the City has provided notice to Developer or Healthcare Developer as
applicable that the City elects to exercise its Right of Reversion and such notice states the date
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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9-24-2015 (Agd) FINAL.Docx
for the Reversion Event and (b)the Reversion Event shall not take place until the earlier of
(i)the date that is thirty (30) calendar days after Developer has had the opportunity to address
the City Council at a public meeting regarding the Reversion Action Trigger or (b)if there is a
Permitted Mortgage encumbering the Parcel, the date that is one (1) year after the date of such
notice of exercise. In the event that, prior to the Reversion Event, Developer and Permitted
Mortgagee with respect to the Other Healthcare Parcelsor any Person on behalf of Developer
either (x)cures the Reversion Action Trigger which is the basis for the City’s exercise of its
Right of Reversion or (y)Completes the Project prior to the date of the Reversion Event, such
Right of Reversion shall cease and terminate with respect to such Reversion Action Trigger only.
Exercise of Right of Reversion
16.4.3. If the City exercises its Right of Reversion in
accordance with the provisions of this Agreement, Developer shall use all reasonable efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or
desirable under applicable law to consummate the revesting of the Reacquired Property in the
name of the City, including the execution and delivery of such other documents, certificates,
agreements, deeds and other writings and the taking of such other actions as may be reasonably
necessary to consummate such revesting.
Sale of Reacquired Property
16.4.4. Upon the revesting in the City of title to the
Reacquired Property, the City shall use reasonable efforts to resell the Reacquired Property as
soon and in such manner as the City shall find feasible, in accordance with applicable state law,
if any, and consistent with the objectives of this Agreement, to a qualified and responsible party
or parties (as determined by the City in its sole discretion) who will assume the obligation of
making or completing the Minimum Improvements and of using reasonable commercial efforts to
commence and thereafter to Complete, the additional Retail Vertical Improvements. Upon such
resale ofthe Reacquired Property, or any part thereof, the proceeds thereof shall be applied in
the following order and amounts, provided that the City shall have no liability to Developer or to
any Permitted Mortgagee or third party to the extent the balance is insufficient to pay the
following amounts:
(a)Delinquencies. First, to repayment in full of all delinquent tax
and delinquent assessment liens with respect to the portion of the Reacquired Property sold;
(b)Permitted Mortgage Balances. Second, if there is a Permitted
Mortgage in favor of a Permitted Mortgage with respect to all or any portion of the Healthcare
Parcel only and the Reacquired Property is comprised of all or any portion of the Healthcare
Parcel, to repayment in full of the outstanding balance ofthe Permitted Mortgages and all other
sums then due and owing thereunder;
(c)Reimbursement to the City. Third, to reimburse the City on its
own behalf for all costs and expenses incurred by the City, in connection with the recapture,
management and resale of the Reacquired Property, or any part thereof, including: a pro-rata
share of the salaries of personnel engaged in such action (based on the amount of time spent by
such personnel on such matters relating to the Reacquired Property as compared to the
aggregate amount of time worked by such personnel); all taxes, assessments and utility charges
with respect to the Reacquired Property; any payments made or necessary to be made to
discharge or prevent from attaching or being made any subsequent encumbrances or liens due to
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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9-24-2015 (Agd) FINAL.Docx
obligations, Defaults or acts of Developer or any Successor Owner or each and every Person
claiming by, through or under Developer or any Successor Owner; any expenditures made or
obligations incurred with respect to the making or completion of the agreed improvements or
any part thereof on the Reacquired Property; all costs of sale and marketing, including
reasonable brokers’ fees and costs incurred in the marketing and sale of the Reacquired
Property; all legal fees and expenses; all escrow and title fees and costs; all survey and due
diligence fees and costs; all the Lien Release Amounts, if any, paid by the City to third parties;
and any amounts otherwise owing to the City or any third party by Developer and/or any
Successor Owner, including any City Liens;
(d)Reimbursement to Developer. Fourth, to reimburse Developer
up to the amount equal to the Repurchase Price attributable to the Reacquired Property less all
amounts paid pursuant to Section16.4.4(a), (b) and (c); and
(e)Balance Retained bythe City. Any balance remaining after such
reimbursements shall be retained by the City as its property.
Release of Liability
16.4.5. In the event the City exercises its Right of Reversion, such
reversion shall terminate and release Developer, or Healthcare Developer, as applicable, from
all liability and obligations of Developer or, as applicable, Healthcare Developer, under this
Agreement with respect to the Reacquired Property, but shall not constitute a waiver or
termination of the release provided for the benefit of the City pursuant to Section4.5.2(f), the
obligation to return any written Due Diligence Information to the City as provided in
Section14.3 and to indemnify the City as provided in Sections4.6.4(f), 5.5 and 10 for matters
relating to or arising prior to the conveyance of the Reacquired Property to the City, and such
liability and obligations shall survive the close of escrow and shall not be merged into the
quitclaim deed, it being acknowledged and agreed that all other obligations under this
Agreement shall be released and terminated as of the date on which the Property or the
applicable portion thereof is conveyed to the City. Following suchClose of Escrow, under no
circumstances shall Developer have any right or claim to, or against, the Reacquired Property.
Notwithstanding the purchase of the Reacquired Property by the City as provided in this
Section16.4, this Agreement shall remain in full force and effect with respect to the portions of
the Property not purchased by the City.
Rights of Third Parties
16.4.6. The Right of Reversion shall be a lien and encumbrance
on the Property that shall be paramount to the lien and charge of (a)any and all Mortgages,
including Permitted Mortgages, upon the Parcels or Improvements, provided, however, that with
respect to a first priority lien that is a Permitted Mortgage on the Other Healthcare Parcelsor
Improvements thereon, made by a Permitted Mortgagee, the implementation of the Right of
Reversion shall be subject to the terms of the Healthcare Subordination Agreement and (b)any
mechanics’ lien that may attach to the Development Parcels or the Improvements thereon. The
Right of Reversion shall not defeat or render invalid or limit any rights or interests provided in
easements, covenants, conditions or restrictions in favor of third parties (i.e., Persons other than
Developer, Healthcare Developer, Developer Affiliates or HCD Affiliates) granted pursuant to
Transfers approved by the City or constituting Permitted Transfers and Recorded on the portion
of the Property for which the City exercises its rights under this Section16.4.
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
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9-24-2015 (Agd) FINAL.Docx
Continuation of Agreement
16.4.7. This Agreement shall remain in full force
and effect with respect to portions of the Property not revested in the City, but the termination of
this Agreement shall be effective as of the date title to any portion of the Property and/or any
Improvements thereon are revested in the City.
Termination of Right of Reversion
16.4.8. The Right of Reversion shall not
apply to the HealthcareParcel after Recording by the City of a Certificate of Compliance with
respect thereto. The Right of Reversion shall not apply to the Retail Parcel after satisfaction of
the Conditions Precedent set forth in Section9.3(a), (c), (d), (e), (f), (h) and (i)with respect to
the Minimum Retail Improvements.
4.Certificates of Compliance. If the Developer satisfies the Conditions Precedent
set forth in Section9.2of the DDA with respect to issuance of a Certificate of Compliance for
the Retail Property or in Section9.3of the DDA with respect to issuance of a Certificate of
Compliance for the Healthcare Property, then the City shall Record the appropriate Certificate of
Compliance upon written request by Developer. The Certificate of Compliance so Recorded
shall be binding upon the Parties to this Memorandum of DDA, their successors and assigns, and
shall be deemed to be the City's conclusive determination of satisfactory Completion of the
Improvements covered by such Certificate of Compliance and compliance with all other
conditions required by the DDA, subject only to such continuing terms of the DDA referenced in
Sections9.7(a) through (d)of the DDA, and/or the covenants, conditions, restrictions and
obligations set forth in this Memorandum, the Special Restrictions, the DA, the Slope Parcel
Easement and Landscape Installation and Maintenance Agreement, the CC&Rs and the
Quitclaim Deed(s), each of which shall survive in accordance with its respective terms.
Developer, on behalf of itself and its successors and assigns hereby consents to the recordation of
the Certificate of Compliance against the entirety of the Property, notwithstanding that portions
of all of the Property may have been transferred prior thereto to third parties and confirms that no
furtheracknowledgement or consent by the then-owners of the Property shall be required in
connection with such recordation. For ease of reference only, the following italicized
Section9.7is copied verbatim from the DDA:
"9.7Effect of Certificate of Compliance; Termination of Agreement.
Except as set forth in this Section9.7 and the Certificate of Compliance, after the
Recording of a Certificate of Compliance, as the case may be, any Person then owning or
thereafter purchasing, leasing, or otherwise acquiringany interest in the Parcel subject to the
Certificate of Compliance or the Improvements thereon shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or liability under this Agreement with
respect to such Improvements,except that such Party shall continue be bound by the Special
Restrictions, the CC&Rs, the Slope Parcel Easement and Landscape Installation and
Maintenance Agreement and the applicable Quitclaim Deed to the extent set forth therein.
Issuance of the Certificate of Compliance shall not waive any rights or claim that the City may
have against any party for latent or patent defects in design, construction or similar matters
under any applicable law, nor shall it be evidence of satisfaction of any of Developer's
obligations to others not a party to this Agreement. The Certificate of Compliance shall be in
such form as to permit it to be Recorded. Upon Recording of the Certificate of Compliance, this
Agreement shall terminate in its entirety with respect to the Project and Property to which such
Certificate of Compliance applies, except that:
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
-10-September 29, 2015
9-24-2015 (Agd) FINAL.Docx
(a)the provisions of Section4.5.2, including the release set forth
therein, shall survive in perpetuity asfurther set forth in the
Quitclaim Deed for such Property;
(b)the provisions of Section11.1.4 shall survive until the expiration of
the time period for provision of the environmental insurance policy
described thereby.
(c)the indemnities set forth in Sections4.6.4(f), 5.5, 8.8, 8.9, 8.11,
8.12, 10.1, 10.2 and 18.12.1 shall remain in effect and shall bind
the indemnifying party and its successors and assigns to the extent
set forth in the Special Restrictions or Other Agreementsfor such
Property; and
(d)any and all obligations contained in the Federal Deed shall
survive in perpetuity to the extent set forth therein, unless such
obligations are released by the Federal Government."
5.DDA and Memorandum of DDA Run With the Land. The DDA and this
Memorandum of DDA, including, without limitation, the provisions of the DDA recited and set
forth above, and all other obligations, agreements, covenants, conditions and restrictions set forth
in the DDA and this Memorandum of DDA are hereby agreed to by the Developer and by the
City to be covenants running with the land and enforceable as equitable servitudes against the
Development Parcels and are hereby declared to be and shall be binding upon the Development
Parcels and Developer and its successors and assigns (who may own all or any portion of the
Development Parcels) for the benefit of the City and its successors and assigns, subject to the
effects of Recordation of a Certificate of Compliance as provided for in Section4above.
6.Priority of DDA and Special Restrictions. The DDA, including the City Lien, the
Right of Repurchase and the Right of Reversion contained therein, this Memorandum of DDA
and the Special Restrictions shall be superior in priority to all Mortgages.
7.Lien Rights. The delinquent amount of any payments due under the DDA,
together with any late charges or interest due on any such delinquent payment, reasonable
attorneys'fees, experts'fees and consultants'fees and collection costs related to such delinquent
payment shall, to the greatest extent permitted by applicable law, be a lien and charge upon the
Property in favor of the City effective upon Recordation of the Memorandum of DDA, which
lien and charge shall be paramount to the lien and charge of any Mortgage upon the Property.
8.Acknowledgment and Assumption by Developer. By acceptance of each
Quitclaim Deed and the Special Restrictions,and upon recording of the Quitclaim Deed(s),
Special Restrictions and this Memorandum of DDA, Developer hereby acknowledges and
assumes all responsibilities placed upon Developer under the terms of the DDA.
9.Public Documents. The documents constituting the DDA are public documents
and may be reviewed at the official offices of the City.
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
-11-September 29, 2015
9-24-2015 (Agd) FINAL.Docx
10.Interpretation; Notice. This Memorandum of DDA is prepared for recordation
and notice purposes only and in no way modifiesor expandsthe terms, conditions, provisions
and covenants of the DDA. In the event of any inconsistency between terms, conditions,
provisions and covenants of this Memorandum of DDA and the DDA, the terms, conditions,
provisions and covenants of the DDA shall prevail.
11.Attachments. The Attachments attached to this Memorandum of DDA are hereby
incorporated by thisreference into this Memorandum of DDA as though fully set forth in this
Section.
\[signature page follows\]
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
-12-September 29, 2015
9-24-2015 (Agd) FINAL.Docx
IN WITNESS WHEREOF, the City and Developer have executed this Memorandum of
DDA as of the Memorandum Effective Date.
Date:_____________________“CITY”
CITY OF TUSTIN
ATTEST:By:
Jeffrey C. Parker
City Manager
By:__________________________
Erica N. Rabe, City Clerk
APPROVED AS TO FORM
By:
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
Special Tustin Counsel
By:
Amy E. Freilich
{signatures continue on following page}
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
-13-September 29, 2015
9-24-2015 (Agd) FINAL.Docx
Date:__________________________“DEVELOPER”
1CTUSTIN LEGACY, LLC,
a Delaware limited liability company
By:Regency Centers, L.P.,
Delaware limited partnership
Its Sole Member
By:Regency Centers Corporation,
a Florida corporation
Its General Partner
By: ________________________
John Mehigan
Vice President
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of Orange)
On _________________, before me, ______________________________, Notary
Public, personally appeared ______________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (Seal)
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
-14-September 29, 2015
9-24-2015 (Agd) FINAL.Docx
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of Orange)
On _________________, before me, ______________________________, Notary
Public, personally appeared ______________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: (Seal)
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
-15-September 29, 2015
9-24-2015 (Agd) FINAL.Docx
Exhibit"A"
Development Parcels Legal Description
\[insert legal description\]
ATTACHMENT 12City of Tustin/Regency Centers DDA
Tustin Regency_DDA_Attachment_12_(Memorandum_Of_DDA)
-16-September 29, 2015
9-24-2015 (Agd) FINAL.Docx
ATTACHMENT 13A
FORM OF REGENCY DATE DOWN CERTIFICATE
REGARDING SECRETARY’SCERTIFICATE RE FUNDING
Reference is hereby made to that certain Tustin Legacy Disposition and Development
DDA
Agreement For Disposition Parcel 1Cdated as of_________, 2015(“”), by and between
Developer
1C Tustin Legacy, LLC, a Delaware limited liability company (“”), and the City of
City
Tustin, a municipal corporation of the State of California (the “”). Capitalized terms used
herein that are not defined herein shall have the meanings specified in the DDA.
This Date Down Certificate is being delivered by Regency Centers Corporation(“Company”)
concurrently with the Retail PropertyClose of Escrow.
The undersigned does hereby certify to the City, in his or her capacity as an officer of the
Company and for and on behalf of REG as follows:
1.\[Except as set forth onSchedule 1 attached hereto,all/All\]of the matters set
2015\]
forth in the Secretary’s Certificate Regarding Funding dated \[___________attached hereto
as Exhibit Aare trueand correct as of the date hereof.
2.Attached to this Date Down Certificate as Exhibit Bare true and correct copies of
the certificate of good standing and tax good standing forthe Company from the Florida and
California Secretariesof State, and each attached certificate of good standing is dated not earlier
than thirty (30) days prior to the date of this Date Down Certificate.
Without the written consent ofthe Company: (i) no Person other than the Citymay rely on this
Date Down Certificate for any purpose; and (ii) copies of this Date Down Certificate may not be
furnished to anyone for purposes of encouraging such reliance.
In no event shall the individual executing this Date Down Certificate on behalf of have any
personal liability hereunder.
{remainder of page is blank –signature on next page}
ATTACHMENT 13ACity of Tustin/Regency Centers DDA
Tustin Regency DDA_Att 13A REG
-1-September29, 2015
_Date_Down_Certificate 10-03-15(Agd) (2).Docx
REGENCY CENTERS CORPORATION,
Dated: ______________________ A Florida Corporation
By: ________________________
Name:__________________
Title: ________________
ATTACHMENT 13ACity of Tustin/Regency Centers DDA
Tustin Regency DDA_Att 13A REG
-2-September29, 2015
_Date_Down_Certificate 10-03-15(Agd) (2).Docx
EXHIBIT “A”
{If none—enter None}
ATTACHMENT 13ACity of Tustin/Regency Centers DDA
Tustin Regency DDA_Att 13A REG
-3-September29, 2015
_Date_Down_Certificate 10-03-15(Agd) (2).Docx
ATTACHMENT 13B
CERTIFICATE OF CHIEF FINANCIAL OFFICER OF
HEALTHCARE DEVELOPER GUARANTOR
\[TO BE PROVIDED BYHCD GUARANTOR\]
This Certificate is being delivered pursuant to that certain Tustin Legacy Disposition and
Development Agreement for Disposition Parcel 1C, dated as of _______________, 2015 (the
DDA
“”), by and between 1C Tustin Legacy LLC, a Delaware limited liability company
Developer
(“”), and the City of Tustin, a municipal corporation of the State of California (the
City
“”). Capitalized terms used herein that are not defined herein shall have the meanings
specified in the DDA.
Pursuant to the DDA, Developer has requested the City to approve _________________,
HCD
a______________ (“”) as the Healthcare Developer and approve the Transfer of the
Healthcare Parcel to HCD under the DDA.
The undersigned does hereby certify to the City, in the name and on behalf of HCD that,as of
the date hereof:
HCDG
1._______________, a ________________(“”) is the \[sole\]
\[MUST BE REVISED TO ADDRESS STRUCTURE\]
\[shareholder/member\]of HCD.
2.As shown on Exhibit A, the undersigned \[Chief Financial Officer of HCDG\] has
the authority to execute and deliver this Certificate on behalf of HCDG.
3.Attached hereto as Exhibit Bis a true and correct copy of the {Certificate of
Incorporation of the Company/Certificate of Formation}of HCDG and any and all amendments
thereto in effect on the date hereof.
4.Attached hereto as Exhibit Cis a true and correct copy of the {Bylaws/Operating
Agreement}of HCDG and any and all amendments thereto in effect on the date hereof.
5.Attached hereto as Exhibit Dare true and correct copies of the Certificate of good
standing for HCDG from {the ____________ Secretary of State and the}California Secretary of
State and a certificate of tax good standing for HCDG from the California Franchise Tax Board,
and each attached certificate of good standing is dated not earlier than thirty (30) days prior to
the date of this Certificate.
6.{Attached hereto as Exhibit E is a true and correct copy of the Certificate of
Status of Foreign Corporation of HCDG and any and all amendments thereto in effect on the
date hereof. }
City of Tustin/Regency Centers DDA
ATTACHMENT13B
Tustin Regency -DDA Att 13B Certificate Of
September 29, 2015
HCD Guarantor 9-28-15 AEF (3).Docx
-1-
7.{Attached hereto as Exhibit F is a true and correct copy of the County of
Orange Fictitious Business Name Statement of HCDG and any and all amendments thereto in
effect on the date hereof.\]
8.Attached hereto as Exhibit Gis evidence of authority of the individuals executing
the HCD Guaranty to bind Healthcare Guarantor and to execute this Guaranty, including copies
of all resolutions or other necessary actions taken by Healthcare Guarantor(s) to authorize the
execution ofthis Guaranty.
9.In the event of a default by HCDGunderthe DDA or the Other Agreements,
HCDG would be able to pay for all of the Guaranteed Obligations(as defined in the HCD
\[except as specifically
Guaranty), without the use of any Project-level debt financing
authorized by the City in consenting to the Transfer to HCD and permitted by the DDA
\].
In support of this statement, Healthcare Guarantor has (without the requirement of third party
financing) a combination of (a)unencumbered cash, cash equivalents and marketable securities
Liquid Assets
(that have not been pledged as collateral for any debt or other obligation) (the “”)
Cash Flow
and (b) cash flow from income producing assets (the “”)that in the event of a default
by HCD under theFunding Agreement, HCDG would be able to pay for all of the obligations of
\[except as specifically
Healthcare Guarantor, without the use of any Project-level debt financing
authorized by the City in consenting to the Transfer to HCD and permitted by the DDA\].
10.{If Healthcare Guarantor is delivering onlythe Equity Funding Agreement only:}
\[Reference is made to that that certain Equity Funding Agreement dated as of _____________,
Funding Agreement
201_, a copy of which is attached hereto as Exhibit H(the “”), pursuant to
which the parent entity or entities of HCD has agreed to make certain “Advances” (as defined in
the Funding Agreement) to HCD as equity capital to pay Obligations” (as defined in the
Funding Agreement) incurred by HCD, all as more particularly set forth and in and subject to
the terms of the Funding Agreement.\]
11.{If Healthcare Guarantor is delivering onlythe Equity Funding Agreement only:}
\[HCDG has (without the requirement of third party financing) a combination of
(a)unencumbered cash, cash equivalents and marketable securities (that have not been pledged
Liquid Assets
as collateral for any debt or other obligation) (the “”) and (b) cash flow from
Cash Flow
income producing assets (the “”) that, in the aggregate, are sufficient to allow
HCDG to make the Advances as and when required under the Funding Agreement.\]
12.In addition to having sufficient Liquid Assets and Cash Flow \[{If
Healthcare Guarantor is delivering the Equity Funding Agreement only:} \[to make the Advances
to HCDin accordancewith and subject to the terms of the Funding Agreement,and\]tosecure
\[ unsecured revolving credit
the HCD Guaranty in accordance with its terms, HCDG has an
facility/other funds\]
with unused credit capacity well in excess of the amounts required to
secure the obligations of HCDG under the HCD Guaranty\[{If Healthcare Guarantor is
delivering the Equity Funding Agreement only:} \[and in excess of the amounts that has agreed to
provide for the benefit of HCD and the Healthcare Project in the Funding Agreement\].The
credit facility has the following characteristics:
City of Tustin/Regency Centers DDA
ATTACHMENT13B
Tustin Regency -DDA Att 13B Certificate Of
September 29, 2015
HCD Guarantor 9-28-15 AEF (3).Docx
-2-
Banks
(a)The lenders under such facility include \[list\] (“”)
(b)Each of the Banks have a capitalized value of more than \[ ___\]Billion
Dollars); and
\[period
(c)HCDGhas had an ongoing relationship with the Banks for at least
of time\]
.
This Certificate is being furnished to the City solely to assist it in conducting its
investigation of HCD’s and HCDG’s financial resources in connection with the approval of HCD
as Healthcare Developer and/or approval of the Transfer to HCD. HCDG acknowledges and
agrees that the City intends to rely on the information in this Certificate for these purposes in
connection with approval of HCD as Healthcare Developer and/or approval of the Transfer to
HCD. This Certificate may be relied upon by the City for these purposes.
Without the written consent of HCDG no Person other than the City may rely on this
Certificate for any purpose.
In no event shall the individual executing this Certificate on behalf of HCDG have any
personal liability hereunder.
\[Signature page to Certificate of Chief Financial Officer\]
Dated: _____________, 2015
HCDG
a _______________
By:
Name:
\[Regional\] Chief Financial Officer
City of Tustin/Regency Centers DDA
ATTACHMENT13B
Tustin Regency -DDA Att 13B Certificate Of
September 29, 2015
HCD Guarantor 9-28-15 AEF (3).Docx
-3-
ATTACHMENT 13C
CONTROLLING PERSON CERTIFICATE
\[TO BE PROVIDED BY PARENT ENTITY/FUNDING SOURCE\]
This Certificate is being delivered pursuant to that certainTustin Legacy Disposition and
Development Agreementfor Disposition Parcel 1C,dated as of _______________,2015(the
DDA
“”),by and between 1C Tustin LegacyLLC, a Delaware limited liability company
Developer
(“”), and the City of Tustin, a municipal corporation of the State of California(the
City
“”).Capitalized terms used herein that are not defined herein shall have the meanings
specified in the DDA.
Pursuant to the DDA, Developer has requested the City to approve
HCD
_________________, a______________ (“”) as the Healthcare Developer and approve
the Transfer of the Healthcare Parcel to HCD under the DDA.
The undersigned does hereby certify to the City, in the name and on behalf of HCD that, as of
the date hereof:
1._______________, a ________________(“HCDP”)is the \[sole\]
\[MUST BE REVISED TO ADDRESS STRUCTURE\]
\[shareholder/member\]of HCD.
2.The undersigned \[Chief Financial OfficerofHCDP\] has the authority from
HCDP to execute and deliver this Certificateon behalf ofHCDPas evidenced by the
information attached as Exhibit A.
3.Attached hereto as Exhibit B is a true and correct copy of the {Certificate of
Incorporation of the Company/Certificate of Formation}of HCDP and any and all
amendments thereto in effect on the date hereof.
4.Attached hereto as Exhibit Cis a true and correct copy of the
{Bylaws/Operating Agreement}of HCDP and any and all amendments thereto in effect on the
date hereof.
5.Attached hereto as Exhibit Dare true and correct copies of the Certificate of
good standing for HCDP from {the ____________ Secretary of State and the}California
Secretary of State and a certificate of tax good standing for HCDP from the California
Franchise Tax Board, and each attached certificate of good standing is dated not earlier than
thirty (30) days prior to the date of this Certificate.
6.{Attached hereto as Exhibit Eis a true and correct copy of the Certificate of
Status of Foreign Corporation of HCDP and any and all amendments thereto in effect on the
date hereof. }
7.{Attached hereto as Exhibit Fis a true and correct copy of the County of
Orange FictitiousBusiness Name Statement of HCDP and any and all amendments thereto in
effect on the date hereof.\]
Tustin Regency -DDA Att 13C Controlling ATTACHMENT 13CCity of Tustin/Regency Centers DDA
Person Certificate 9-28-15.Docx
-1-September 29,2015
8.HCDP andHCD have entered into that certain Equity Funding Agreement
dated as of _____________, 2015, a copy of which is attached hereto as Exhibit G(the
Funding Agreement
“”), pursuant to which HCDPhas agreed to make certain “Advances”
(as defined in the Funding Agreement) to HCDas equity capital to pay Obligations” (as
defined in the Funding Agreement) incurred by HCD, all as more particularly set forth and in
and subject to the terms of the Funding Agreement attached hereto as Exhibit Agreement.
9.The Funding Agreement was duly executed and delivered by ____________, a
____________ of HDCP, who had the authority to do so and the Funding Agreement is a
valid and binding obligation of HDCP and fullyenforceable in accordance with its terms.
10.HCDPhas (without the requirement of third party financing) a combination of
(a) unencumbered cash,cash equivalents and marketable securities(that have not been
Liquid Assets
pledged as collateral for any debt or other obligation)(the “”) and (b) cash
Cash Flow
flow from income producing assets (the “”) that,in the aggregate,are sufficient to
allow HCDPto make the Advances as and when required under the FundingAgreement.
11.HCDPhas the ability to satisfy all of its obligations to make timelyAdvances
to HCD in accordance with and subject to the terms of the Funding Agreement, and based on
current economic conditions HCDP believes that when such Advances are made by HCDPto
HCD, HCDwill be able to pay for all of the DDA Obligations,without the use of any
\[except as specifically authorized by the City in consenting to
Project-level debt financing
the Transfer to HCD and permitted by the DDA\].
12.In addition to having sufficient Liquid Assetsand Cash Flowtomake the
Advances to HCD in accordance with and subject to the terms of the Funding Agreement,
\[unsecured revolving credit facility/otherfunds\]
HCDPhas anwith unusedcredit capacity
well in excess of the“Equity Funding Cap”(as defined in the Funding Agreement).The
credit facility has the following characteristics:
(a)The lenders under such facility include \[list\] (“Banks”)
(b)Each of the Banks have a capitalized value of more than \[___\]Billion
Dollars); and
(c)HCDPhas had an ongoing relationship with the Banks for atleast
\[period of time\]
.
This Certificate is being furnished to the City solely to assist it in conducting its
investigation of HCD’sand HCDP’s financial resourcesin connection with the approval of
HCD as Healthcare Developerand/or approval of the Transfer to HCPand its investigation of
HCDP’s financial resources in connection withHCDP’Sobligation to make Advances in
accordance with the terms of the Funding Agreement.HCDP acknowledges and agrees that
the City intends to rely on the information in this Certificate for these purposes in connection
withapproval of HCD as Healthcare Developerand/or approval of the Transfer to HCP.This
Certificate may be relied upon by the City for these purposes.
Without the written consent of HCDPno Person other than the City may rely on this
Certificate for any purpose.
Tustin Regency -DDA Att 13C Controlling ATTACHMENT 13CCity of Tustin/Regency Centers DDA
Person Certificate 9-28-15.Docx
-2-September 29, 2015
In no event shall the individual executing this Certificate on behalf of HCDP have any
personal liability hereunder.
\[Signature page follows\]
\[Signature page to Certificate of Chief Financial Officer\]
Dated: _____________, 2015
HCDP
a_______________
By:
\[Regional\] Chief Financial Officer
Tustin Regency -DDA Att 13C Controlling ATTACHMENT 13CCity of Tustin/Regency Centers DDA
Person Certificate 9-28-15.Docx
-3-September 29, 2015
ATTACHMENT 14A
FORM OF REG GUARANTY
GUARANTY AGREEMENT
RETAIL PARCEL
GUARANTY AGREEMENTGuaranty
This (this "") is made as of the ______ day of
__________________, 20__, byRegency Centers Corporation, a corporation formed under the
Guarantor
laws of the State of Florida(the "") in favor of the CITY OF TUSTIN, a public body,
City
corporate and politic ("").
Recitals
Developer
A.1C Tustin Legacy, LLC, a Delaware LLC("") has entered into that
certain Tustin Legacy Disposition and Development Agreement for Disposition Parcel 1C, dated
as of ________________(including all Attachments thereto, which as may be amended, updated
DDA
or modified from time to time are referred to collectively as "") under which Developer
would acquire the Retail Propertyand Healthcare Developer would acquire the Healthcare
Property(each as defined in the DDA.) Initially capitalized terms used and not defined herein
shall have the meanings set forth in the DDA.
B.Concurrently with the delivery of this Guaranty, Developer is acquiring the Retail
Propertyunder the DDA. Under the terms of the DDA, Developer will be required to perform
certain design work and construct the Minimum Horizontal Improvements (some of which are
required to be constructed on the Retail Parceland some of which are required to be constructed
on the Healthcare Parcel). In addition, Developer is required to perform certain design work and
construct the Minimum Retail Improvements, and shall have the right to construct certain
additional Retail Vertical Improvements together with related amenities, the nature, scope and
extent of which are defined in the DDA. Further, under the terms of the DDA, \[upon
Developer's acquisition of the Healthcare Property, Developer shall be obligated to
assign/Developer has assigned\]its rights and obligations with respect to the Healthcare Property
under the DDA and the Other Agreements to a Healthcare Developer\[, which, concurrent with
the delivery of this Guarantyis acquiring the Healthcare Property.\]Healthcare Developer will
be required to perform certain design and construction work for the development of the
Minimum Healthcare Improvements, including, if not carried out by Developer, the Minimum
Horizontal Improvements.
C.The Guarantor is the general partner of Regency Centers, L.P., a Delaware limited
partnership (“RCLP”) RCLP is thesole member of Developer and thus has a direct and
substantial interest in Developer and will derive benefit from theacquisition of the Property and
the development and sale or lease of the Project..
Agreements
For good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and in order to induce City to convey the RetailParcel to Developer and the
Healthcare Parcel to Developer and/or Healthcare Developer, City has required that the
ATTACHMENT 14ACity of Tustin/Regency CentersDDA
Tustin Regency DDA ATTACHMENT 14A(REG
-1-September 29, 2015
Guaranty) 9-29-15 (Agd) (5).Docx
Guarantor execute and deliver this Guaranty to City. The Guarantor hereby makes the
guaranties, obligations, covenants and agreements set forth below in this Agreement.
Section 1.Guaranty.
1.1Payment and Completion Obligations.
1.1.1The Guarantor absolutely and unconditionally guarantees that
Guarantor shall pay any and all costs required and cause any and all work to be performedas
may be required to carryout and Complete the following elements of the Project (the
Completion Obligations
""):
(a)Payment of all Development Costs for the design,
construction and Completion of the Minimum Retail Improvements, provided that Guarantor’s
obligation to pay for construction and Completion of Improvements pursuant to this clause (a)
shall apply onlyas and to the extentDeveloper has pulledbuildingpermits for construction of
such Minimum Retail Improvements; and
(b)Payment of all Development Costs for design, construction
and Completion of the Minimum HorizontalImprovements(and provided further that the
obligations of Guarantor to pay for the design, construction and completion of the Minimum
Healthcare Improvements upon the Healthcare Parcel shall remain in effect notwithstanding the
sale by Developer of the Healthcare Parcel or the issuance by any third party of a guaranty of
Minimum Horizontal Improvements delivered in connection therewith);the foregoing work
shall be an absolute obligation of Guarantor in the event that, Developer fails to commence or
complete,in a lien-free condition, construction of the Minimum Horizontal Improvements within
the time period set forth in the Schedule of Performance(subject to any extension permitted by
the DDA for Force Majeure Delay), and such obligation shall be joint and several with any
obligation of Healthcare Developer under the DDA to construct and complete the Minimum
Horizontal Improvements on the Healthcare Parcel in the event that Developer Defaults in its
obligation to so construct and completethe Minimum Horizontal Improvements.
1.1.2The Guarantor absolutely and unconditionally guarantees that
Guarantor shall pay any and all costs required and cause any and all work to be performedas
may be required to carry out the following obligationsif Developer shall fail to timely perform
PaymentObligations
its obligations under the DDA (the "" and collectively with the
Payment and CompletionObligations
Completion Obligations, the “”):
(a)Payment of the Additional Purchase Price;
(b)Payment of all costs and expenses of the City arising in
connection with the exercise by the City of its remedies under the DDA with respect to
Developer, the Minimum Horizontal Improvements, the Retail Improvements, the Retail
Provisions and/or the RetailParcel or any Improvements thereon including the costs and
expenses of the City arising from its exercise of the Right of Repurchase or Right of Reversion
with respect to the Retail Parcel as provided in Sections16.3 and 16.4 of the DDA, respectively;
but excluding the Repurchase Price applicable to any Reacquired Property actually acquired by
the City pursuant to the Right of Repurchase; provided that the City shall be entitled to retain the
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Reacquired Property so acquired in its entirety, notwithstanding any contribution or payment
made by Developer, or by REG pursuant to the REG Guaranty;
(c)Payment of the costs and expenses incurred by the City, if
any, in enforcement by the City of its remedies under the DDA with respect to Developer, the
Retail Parcel,the Healthcare TransferorObligations and/orany Improvements on the Retail
Parcel; and
(d)Payment ofall of the Development Costs incurred to cause
the Completion of the Improvements on the Retail Parcel, such that the Retail Parcel shall be in a
lien-freecondition as required by the DDA.
1.2Payment of Enforcement Costs. In addition to its obligations in
Section1.1, the Guarantor agrees to pay all costs and expensesincurred by City, including
reasonable attorneys'fees and costs, court costs and all other litigation expenses (including
reasonable expert witness fees, costs of depositions and other discovery, travel expenses, exhibit
preparation, and courier, postage, communication and document copying expenses), in enforcing
Enforcement Payment Obligation
this Guaranty (the ""). The provisions of this Section1.2
shall survive the termination of this Guaranty.
1.3Performance of Work.The work (a) shall be performed in accordance
with the Scope of Development and within the time periods set forth in the Schedule of
Performance all as and to the extent set forth in the DDA; provided however, that if the time
periods set forth in the Schedule of Performance have expired, the City and Guarantor shall meet
and confer in good faith to revise the Schedule of Performance as reasonably necessary to
provide adequate time to Guarantor to satisfy its obligations hereunder;(b) shall be performed in
accordance with the other requirements for construction of the Project set forthin the DDA, and
(c) shall be diligently pursued by the Guarantor to Completion of the Projectand issuance of a
Certificate of Compliance for each of the Retail Parcel and the Healthcare Parcel.
Guaranteed Obligations
1.4Guaranteed Obligations.""means the Payment
and Completion Obligations and the Enforcement Payment Obligation.
1.5Definition of Project. For purposes of this Guaranty, and notwithstanding
the definition provided for under the DDA, the definition of"Project"shall mean(a)the
Minimum Retail Vertical Improvements and (b)the Minimum Horizontal Improvements.
Section 2.Performance of Payment and Completion Obligations Upon Default by
Developer
2.1Default by Developer.If Developer is in Material Default under the DDA
for any reason, including for failure to commence or prosecute the development of the Project in
accordance with the Schedule of Performance or the Scope of Development, then City may, but
Guaranty Notice
shall not be obligated to,deliver written notice to the Guarantor (a ""), that is
designed to provide notice to Guarantor of such default. While the exact wording of the notice is
not mandatory, a notice in substantially the following formis adequate notice stating: "This
noticeis to inform you or confirm that Developerisin Material Default under the terms of the
\[identify Material Default(s) by Developer\]
DDA in the following respect(s): . City hereby
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requests that you, as Guarantor,undertake to do and pay the Guaranteed Obligationsas defined
______
in that certain Guaranty Agreement Retail Parcel, dated ___."The Guarantor, promptly
after receipt of the Guaranty Notice shall perform its Payment and Completion Obligations. The
notice need not take the exact form set forth herein and failure of the City to provide the
Guaranty Notice shall not relieve Guarantor from any of its obligations under this Guaranty. The
Guarantor will take whatever actions may be necessary to perform the Payment and Completion
Obligations, including the following:
2.1.1Diligently and expeditiously proceed to ensure the Completion of
the Project at the Guarantor's sole cost and expense, at the times and subject to the terms and
conditions set forth in the DDA;
2.1.2Fully pay and discharge all Development Costsincurred or
required to be incurred in connection with the Completion of the Project; and
2.1.3Pay any amounts necessary to release and discharge any
mechanics', material providers'or other liens that may exist or come into existence in connection
with the Retail Parcel or the Completionof the Minimum Horizontal Improvements, or in the
alternative contest the same subject to the terms and conditions set forth in the DDA.
2.2Difficulty or Expense of Completion of the Project Does Not Excuse
Guarantor or Guaranty.The Guarantor's obligations under this Guaranty will remain in full force
and effect until the Guaranteed Obligations are fully and finally performed, regardless of whether
the Guarantor or any other Person determines that Completion of the Project is difficult, more
expensive than originally intended, or involves "Unanticipated Expense or Delay"(defined
Unanticipated Expense or Delay
below). ""includes any event or circumstance that would
make the Completion of the Project more costly or would delay the Completion of the Project,
such events and circumstances specifically including the following matters:(a)a casualty that
affects the Parcel or any Improvements that may have been constructed; (b)the discovery of
unanticipated soils conditions or Hazardous Materials in, on, or under the Parcel;
(c)Governmental Requirements or court orders applicable to the Project; (d)any lack of debt or
equity financing for Development Costs; (e)any change in market conditions and (f)other events
or circumstances beyond the control of Developer or the Guarantor relating to the Project.
2.3No Discharge Until Completion. It is the intent of the Guarantor and City
that the obligations and liabilities of the Guarantor hereunder are absolute, irrevocable and
unconditionalunder any and all circumstances and that until the Guaranteed Obligations are fully
and finally performed, the obligations and liabilities of the Guarantor hereunder shall not be
discharged or released, in whole or in part, by any act or occurrence that might, but for the
provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
The Guaranteed Obligations shall be deemed to be fully and finally performed for purposes of
this Guaranty and this Guaranty shall terminateon the date on which the Certificate of
Compliance is recorded by the City with respect to the Retail Parcel.
Section 3.Absolute, Irrevocable and Unconditional Guaranty.
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3.1Irrevocable Guaranty. This Guaranty is an absolute, irrevocable and
unconditional guaranty of performance. This Guaranty shall be effective as a waiver of, and the
Guarantor hereby expressly waives, any right to which the Guarantor may otherwise have been
entitled, whether now existing under statute, at law or in equity, or arising under any statute
enacted after the date hereof or arising under any doctrine of law or equity promulgated after the
date hereof to require City to take prior recourse or proceedings against any collateral, security or
Person. It shall not be necessary for City, in order to enforce such payment or performance by
the Guarantor, first to institute suit or pursue or exhaust any rights or remedies against
Developer, Healthcare Developer, the Healthcare Guarantor(s)or any other Person liable on such
indebtedness or for such performance, or to enforce any rights against any security given to
secure such indebtedness or performance, or to join Developerorany other Person liable for the
performance of the Guaranteed Obligations or any part thereof in any action to enforce this
Guaranty, or to resort to any other means of obtaining performance of the Guaranteed
Obligations.
3.2Demand Against the Guarantor. City may bring suit or make a demand
against Developer or against the Guarantor or any other parties who have signed this Guaranty or
any other guaranty covering all or any part of the Guaranteed Obligations, or against any one or
more of them, separately or together, without impairing the rights of City against the Guarantor.
3.3Independent Guaranty. The obligations of the Guarantor under this
Guaranty are independent of and in addition to the obligations and liabilities of Developer or
Healthcare Developer under the DDA and under the Other Agreements. This Guaranty is
independent of (and shall not be limited by) any other guaranty now existing or hereafter given
by the Guarantor, or any other Person under or in connection with the Property, the
Improvements, the DDA or the Other Agreements. The liability of the Guarantor under this
Guaranty is in addition to any and all other liability the Guarantor may have in any other
capacity with respect to Developer , including, if applicable, any direct or indirect ownership or
control of any debt and/or equity securities of Developer or any Controlling Person of the
Developer.
Section 4.Certain Agreements and Waivers by the Guarantor.
4.1Waivers. The Guarantor agrees that, except in the event of full
performance of the Guaranteed Obligations(a)neither City's rights or remedies nor the
Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired,
reduced or affected by any one or more of the following events, actions, facts, or circumstances,
(b)the Guarantor waives any rights, claims or defenses arising from any such events, actions,
facts, or circumstances,and (c)the liability of the Guarantor under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of:
(i)any limitation on the liability of, or recourse against, any
other Person, including City, in the DDA or any of the Other Agreements or arising under
any law;
(ii)any claim or defense that this Guaranty was made without
consideration or is not supported by adequate consideration or that the obligations of the
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Guarantor hereunder exceed or are more burdensome than those of Developer underthe
DDA;
(iii)the taking or accepting of any other security or guaranty
for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv)any release, surrender, abandonment, exchange, alteration,
sale or other disposition, subordination, deterioration, waste, failure to protect or
preserve, impairment, or loss of, or any failure to create or perfect any lien or security
interest with respect to, or any other dealings with, any collateral or security at any time
existing or purported, believed or expected to exist in connection with any or all of the
Guaranteed Obligations, or any impairment of the Guarantor's recourse against any
Person or collateral;
(v)whether express or by operation of law, any partial release
of the liability of the Guarantor hereunder (except to the extent expressly so released by
City with respect to this Guaranty)or any complete or partial release of Developer or any
other Person liable, directly or indirectly, for the performance of any or all of the
Guaranteed Obligations;
(vi)the death, insolvency, bankruptcy, disability, dissolution,
liquidation, termination, receivership, reorganization, merger, consolidation, change of
form, structure or ownership, sale of all assets, or lack of corporate, partnership or other
power ofDeveloper or any other Person at any time liable for the performance of any or
all of the Guaranteed Obligations;
(vii)the death, insolvency, bankruptcy, disability, dissolution,
liquidation, termination, receivership, reorganization, merger, consolidation, change of
form, structure or ownership, sale of all assets, or lack of corporate, partnership or other
power of the Guarantor or its respective successors or assigns;
(viii)either with or without notice to or consent of the Guarantor,
any renewal, extension, modification, supplement, subordination or rearrangement of the
terms of any or all of the Guaranteed Obligations and/or the DDA or any of the Other
Agreements or any other agreements that may have been executed by Developer, City or
any third party affecting the obligations of Developer or City under the DDA, or
performance (including changes with respect to the construction of the Improvements) or
any other terms thereof, or any waiver, termination, or release of, or consent to departure
from, any of the DDA, the Other Agreements, any other agreements that may have been
executed by Developer , City or any third party affecting the obligations of Developer or
City under the DDA or any other guaranty of any or all of the Guaranteed Obligations, or
any adjustment,indulgence, forbearance, or compromise that may be granted from time
to time by City to Developer or to any other Person at any time liable for the performance
of any or all of the Guaranteed Obligations;
(ix)any neglect, lack of diligence, delay, omission, failure, or
refusal of City to take or prosecute (or in taking or prosecuting) any action for the
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collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or
prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to
foreclose) upon any security therefor, or to exercise (or in exercising) any other right or
power with respect to any security therefor, or to take or prosecute (or in taking or
prosecuting), or any failure to sell or otherwise dispose of in a commercially reasonable
manner any collateral securing any or all of the Guaranteed Obligations;
(x)any failure of City to notify the Guarantor of any creation,
renewal, extension, rearrangement, modification, supplement, subordination, or
assignment of the DDA or any of the Other Agreements or any of the Guaranteed
Obligations or any part thereof, or of any release of or change in any security, or of the
occurrence or existence of any Material Default, or of any other action taken or refrained
from being taken by City against Developer or any security or other recourse, or of any
new agreement between City and Developer, it being understood that City shall not be
required to give the Guarantor any notice of any kind under any circumstances with
respect to or in connection with the Guaranteed Obligations, any and all rights to notice
the Guarantor may have otherwise had being hereby waived by the Guarantor, and the
Guarantor shall be responsible for obtaining for itself information regarding Developer
and any collateral, including any changes in the business or financial condition of
Developer or any collateral, and the Guarantor acknowledges and agrees that City shall
have no duty to notify the Guarantor of any information which City may have concerning
Developer or any collateral;
(xi)the existence of any claim, counterclaim, set-off or other
right that the Guarantor may at any time have against Developer, City, or any other
Person, whether or not arising in connection with this Guaranty, the DDA, or anyOther
Agreements;
(xii)the unenforceability of all or any part of the Guaranteed
Obligations against Developer, whether because the Guaranteed Obligations exceed the
amount permitted by law or violate any usury or other law, or because the Persons
creating theGuaranteed Obligations acted in excess of their authority, or because of a
lack of validity or enforceability of or defect or deficiency in the DDA or the Other
Agreements, or because Developer has any valid defense, claim or offset with respect
thereto, or because Developer 's obligation ceases to exist by operation of law, or because
of any other reason or circumstance, it being agreed that the Guarantor shall remain liable
hereon regardless of whether Developer or any other Person be found not liable onthe
Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder
of Developer or any other party in any action to obtain payment or performance of any or
all of the Guaranteed Obligations);
(xiii)any order, ruling or plan of reorganization emanating from
proceedings under Title11 of the United States Code with respect to Developer or any
other Person, including any extension, reduction, composition, or other alteration of the
Guaranteed Obligations, whether or not consented to by City, or any action taken or
omitted by City in any such proceedings, including any election to have City's claim
allowed as being secured, partially secured or unsecured, any extension of credit by City
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in any such proceedings or the taking and holding by City of any security for any such
extension of credit;
(xiv)any other condition, event, omission, action that would in
the absence of the provisions of this Section4 result in the release or discharge of the
Guarantor from the performance or observance of any obligation, covenant or agreement
contained in this Guaranty or any other agreement;
(xv)any notice to the Guarantor of the existence of or the
extending to Developer of any grace or cure period for the performance of any of the
Guaranteed Obligations;
(xvi)any defense of waiver, release, discharge in res judicata,
statute of frauds, fraud, or ultra vires acts that may be available to Developer in respect of
the DDA or any of the Other Documents;
(xvii)to the fullest extent permitted by law:(A)any defense
arising as aresult of City's election, in any proceeding instituted under the Bankruptcy
Code, of the application of Section1111(b)(2) of the Bankruptcy Code; and (B)without
limiting the generality of any other provision hereof, all rights and benefits that might
otherwise be available to the Guarantor under California Civil Code Sections2787
through 2855, inclusive, including without limitation any rights of subrogation,
reimbursement, indemnification, and contribution and any other rights and defenses that
are ormay become available to the Guarantor by reason of such provisions of the
California Civil Code.
(xviii). Notwithstanding Guarantor's foregoing waivers,
Guarantor shall be entitled to credit against the Guaranteed Obligations any of
Developer's actual payment or performance of such obligations, but without exoneration
of Guarantor in the event that the City accepts something other than prompt and full
performance of any of the Guaranteed Obligations by Developer;
(xix)the benefit of any statute of limitations affecting the
liability of the Guarantor under this Guaranty or the enforcement of this Guaranty,
including any rights arising under Section359.5 of the California Code of Civil
Procedure;
(xx)any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Developer in respect of the Guaranteed
Obligations or Guarantor in respect of this Guaranty; or
(xxi)any early termination of any of the Guaranteed Obligations.
4.2Additional Waivers.
4.2.1Without limiting any of the waivers contained in Section4.1, the
Guarantor waives all rights and defenses that the Guarantor may have because Developer
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means,
obligations may be, or may be deemed to be, secured by real property.This among other
things:
(i)The City may collect from the Guarantor without first
foreclosing on any real or personal property collateral pledged by Developeror
Healthcare Developer.
(ii)If the City forecloses on any real property collateral
pledged by Developeror Healthcare Developer:(i)the amount of the obligation owed to
the City may be reduced only by the net price for which that collateral is sold at the
foreclosure sale or proceedings, even if the collateral is worth more than the sale price
and (ii)the City may collect from the Guarantor even if the City, by foreclosing on the
real property collateral, has destroyed any right the Guarantor may have to collect from
the Developer.
This is an unconditional and irrevocable waiver of any rights and defenses the Guarantor may
have because the Developer's obligations may be, or may be deemed to be, secured by real
property.These rights and defenses include, but are not limited to, any rights or defenses based
upon Section580a, 580b, 580d, or 726 of the Code of Civil Procedure.
4.2.2Without limiting any of the waivers contained in Section4.1,
Guarantor hereby waives any rights or defenses the Guarantor may have in respect of his or her
obligations as a guarantor by reason of any election of remedies by the creditor.:
4.2.3Without limiting the generality of any other waiver or provision of
this Guaranty, Guarantor waives any and all benefits or defenses under California Civil Code
Sections2899 and 3433, Chapter 2 of Title14 of the California Civil Code and California
Commercial Code section 3605.
4.3Preferences. In the event any payment by Developer or any other Person
to City is held to constitute a preference, fraudulent transfer or other voidable payment under any
bankruptcy, insolvency or similar law, or if for any other reason City is required to refund such
payment or pay the amount thereof to any other party, such payment by Developer or any other
party to City shall not constitute a release of the Guarantor from any liability hereunder, and this
Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release,
surrender or discharge by City of this Guaranty or of the Guarantor or the prior expiration of this
Guaranty), as the case may be, with respect to, and this Guaranty shall apply to, any and all
amounts so refunded by City or paid by City to another Person which amounts shall constitute
part of the Guaranteed Obligations), and any interest paid by City and any attorneys'fees, costs
and expenses paid or incurred by City in connection with any such event.
4.4Defenses. The Guarantor waives all rights and defenses arising out of an
election of remedies by City, including exercise by the City of its Right of Reversion upon
occurrence of a Reversion Event or a repurchase of the Property pursuant to City's Right of
Repurchase, even though such election of remedies may have destroyed such Guarantor's rights
of subrogation and reimbursement against Developer by operation of California Code of Civil
Procedure Section580d or otherwise.
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4.5Anti-Deficiency Waivers. The Guarantor waives (a)any defenses the
Guarantor may have by reason of an election of remedies by City, and (b)any rights or defenses
the Guarantor may have by reason of protection afforded to Developer with respect to the
Guaranteed Obligations pursuant to the anti-deficiency or other laws of California limiting or
discharging Developer 's obligations, including California Code of Civil Procedure
Sections580a, 580b, 580d or 726.
4.6Waiver of Notice of Acceptance.The Guarantor waives notice of
acceptance of this Guaranty.
4.7No Limitation on Waivers. No provision or waiver in this Guaranty shall
be construed as limiting the generality of any other provision or waiver contained in this
Guaranty. All of the waivers contained herein are irrevocable and unconditional and are
intentionally and freely made by the Guarantor.
Section 5.Subordination.
If, for any reason whatsoever, Developer is now or hereafter becomes indebted, directly
or indirectly to the Guarantorincluding, without limitation, by operation of Civil Code Sections
2847 and 2848, or any successor statutesor similar law(any such indebtedness being referred to
Subordinated Debt
as the ""):
(a)The Subordinated Debt and all interest thereon and all
liens, security interests and rights now or hereafter existing with respect to property of Developer
securing the Subordinated Debt shall, at all times, be subordinate in all respects to the
Guaranteed Obligations and to all liens, security interests and rights now or hereafter existing to
secure the Guaranteed Obligations, until the Guaranteed Obligations have been paid or
performed in full;
(b)The Guarantor shall not be entitled to enforce or receive
payment, directly or indirectly, of any of the Subordinated Debt until the Guaranteed Obligations
have been fully and finally performed; provided, however, that so long as no Material Default
under the DDA or the Other Agreements shall have occurred and be continuing, Guarantor shall
not be prohibited from receiving such (i)reasonable management fees or reasonable salary from
Developer, and (ii)distributions from Developer in an amount equal to any income taxes
imposed on such Guarantor which are attributable to Developer's income from the Property;
(c)The Guarantor hereby assigns and grants to City a security
interest in all the Subordinated Debt and security therefor, if any,of Developer to the Guarantor
now existing or hereafter arising, including any dividends and payments pursuant to debtor relief
or insolvency proceedings referred to below. In the event of receivership, bankruptcy,
reorganization, arrangement or other debtor relief or insolvency proceedings involving
Developer as debtor, City shall have the right to prove its claim in any such proceeding so as to
establish its rights hereunder and shall have the right to receive directly from the receiver, trustee
or other custodian, dividends and payments that are payable upon any obligation of Developer to
the Guarantor now existing or hereafter arising, and to have all benefits of any security therefor,
until the Guaranteed Obligations have been fully and finally performed. If, notwithstanding the
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foregoing provisions, the Guarantor should receive any payment, claim or distribution that is
prohibited as provided above in this Section 5, the Guarantor shall pay the same to City
immediately, the Guarantor hereby agreeing that it shall receive the payment, claim or
distribution in trust for City and shall have absolutely no dominion over the same except to pay it
immediately to City;and
(d)The Guarantor shall promptly upon request of City from
time to time execute such documents and perform such acts as City may require to evidence and
perfect its interest and to permit or facilitate exercise of its rights under this Section 5, including
execution and delivery of proofs of claim, further assignments and security agreements, and
delivery to City of any promissory notes or other instruments evidencing indebtedness of
Developer to the Guarantor. All promissory notes, accounts receivable ledgers or other
evidences, now or hereafter held by the Guarantor, of obligations of Developer to the Guarantor
shall contain a specific written notice thereon that the indebtedness evidenced thereby is
subordinated under and is subject to the terms of this Guaranty.
Section 6.Other Liability of the Guarantor or Developer.
If the Guarantor is or becomes liable, by endorsement or otherwise, for any indebtedness
owing by Developer to City other than under this Guaranty, such liability shall not be in any
manner impaired or affected hereby, and the rights of City hereunder shall be cumulative of any
and all other rights that City may have against the Guarantor. If Developer is or becomes
obligated to City for any liabilities or indebtedness other than or in excess of the Guaranteed
Obligations, any payment received or recovery realized upon such other liabilities or
indebtedness of Developer to City may be applied by City to such other liabilities or
indebtedness.
Section 7.City Assigns; Disclosure of Information.
This Guaranty is for the benefit of City and City's successors and assigns, and in the
event of an assignment of the Guaranteed Obligations, or any part thereof, the rights and benefits
hereunder, to the extent applicable to the Guaranteed Obligations so assigned, may be transferred
with such Guaranteed Obligations.The Guarantor waives notice of any transfer or assignment of
the Guaranteed Obligations or any part thereof.
Section 8.Binding Effect; Successor and Assigns.
This Guaranty is binding not only on the Guarantor, but also on the Guarantor's
successors and assigns.
Section 9.Governing Law.
The validity, enforcement, and interpretation of this Guaranty, shall for all purposes be
governed by and construed in accordance with the laws of the State of California (without regard
to its conflicts of law principles) and applicable United States federal law, and is intended to be
performed in accordance with, and only to the extent permitted by, such laws. The Guarantor
and City agree that any disputes arising between them in connection with this Guaranty or in
connection with or under any instrument, agreement or document provided for or contemplated
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by this Guaranty, including in connection with the execution of this Guaranty, the Guaranteed
Obligations or any other matter arising under, related to or in connection with this Guaranty
(including a determination of any and all issues in such dispute, whether of fact or of law) shall
be tried and litigated exclusively in the Superior Court of the County of Orange, State of
California, in any other appropriate court of that county, or in the United States District Court for
the Central District of California. This choice of venue is intended by the Guarantor and City to
be mandatory and not permissive in nature, thereby precluding the possibility of litigation
between or among the Guarantor and City with respect to or arising out of this Guaranty in any
jurisdiction other than that specified in this Section9. Each party hereby waives any right that it
may have to assert forum non conveniens or similar doctrine or to object to venue with respect to
any proceeding brought in accordance with this Section9, and stipulates that the State and
federal courts located in the County of Orange, State of California, shall have in personam
jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or
proceeding arising out of this Guaranty. Each party hereby authorizes and accepts service of
process sufficient for personal jurisdiction in any action against it as contemplated by this
Section9 by means of registered or certified mail, return receipt requested, postage prepaid, to its
address for the giving of notices as set forth in this Guaranty, or in the manner set forth below for
notices. Any final judgment rendered against a party in any action or proceeding shall be
conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in
any manner provided by law.
Section 10.Invalidity of Certain Provisions.
If any provision of this Guaranty or the application thereof to any Person or circumstance
shall, for any reason and to any extent, be declared to be invalid or unenforceable, neither the
remaining provisions of this Guaranty nor the application of such provision to any other Person
or circumstance shall be affected thereby, and the remaining provisions of this Guaranty, or the
applicability of such provision to other Persons or circumstances, as applicable, shall remain in
effect and be enforceable to the maximum extent permitted by applicable law.
Section 11.Costs and Expenses of Enforcement.
The Guarantor agrees to pay to City on demand all costs and expenses incurred by City in
seeking to enforce City's rights and remedies under this Guaranty, including court costs, costs of
alternative dispute resolution and reasonable attorneys'fees, whether or not suit is filed or other
proceedings are initiated hereon. All such costs and expenses incurred by City shall constitute a
portion of the Guaranteed Obligations hereunder, shall be subject to the provisions hereof with
respect to the Guaranteed Obligations and shall be payable by the Guarantor on demand by City.
In the event of any suit or proceeding to adjudicate or resolve any dispute in connection with this
Guaranty, the prevailing party shall be entitled to recover its reasonable attorneys' fees which
shall be payable at the actual contractual hourly rate for City’s litigation counsel at the time the
fees wereincurred, but in no event more than $200 per hourandcosts, court costs and all other
litigation expenses (including reasonable expert witness fees, costs of depositions and other
discovery, travel expenses, exhibit preparation, and courier, postage, communication and
document copying expenses).
ATTACHMENT 14ACity of Tustin/Regency CentersDDA
Tustin Regency DDA ATTACHMENT 14A(REG
-12 -September 29, 2015
Guaranty) 9-29-15 (Agd) (5).Docx
Section 12.No Usury.
It is not the intention of City or the Guarantor to obligate the Guarantor to pay interest in
excess of that lawfully permitted to be paid by the Guarantor under applicable law. Should it be
determined that any portion of the Guaranteed Obligations or any other amount payable by the
Guarantor under this Guaranty constitutes interest in excess of the maximum amount of interest
that the Guarantor, in its capacity as guarantor, may lawfully be required to pay under applicable
law, the obligation of the Guarantor to pay such interest shall automatically be limited to the
payment thereof in the maximum amount so permitted under applicable law. The provisions of
this Section shall override and control all other provisions of this Guaranty and of any other
agreement between the Guarantor and City.
Section 13.Representations, Warranties, and Covenants of the Guarantor.
Guarantor hereby represents, warrants, and covenants that: (a)the Guarantor has a
financial interest in Developer and will derive a material and substantial benefit, directly or
indirectly, from the developing the Project and from the making of this Guaranty by the
Guarantor; (b)this Guaranty is duly authorized and valid, and is binding upon and enforceable
against the Guarantor; (c)the Guarantor is not, and the execution, delivery and performance by
the Guarantor of this Guaranty will not cause the Guarantor to be, in violation of or in default
with respect to any law or in default (or at risk of acceleration of indebtedness) under any
agreement or restriction by which the Guarantor is bound or affected; (d)the Guarantor is duly
organized, validly existing, and in good standing under the laws of the state of its organization
and has full power and authority to enter into and perform this Guaranty; (e)except as may have
been previously disclosed to City in writing, there is no litigation pending or, to the knowledge
of the Guarantor, threatened by or before any tribunal against or affecting the Guarantor; (f)all
financial statements and information heretofore furnished to City by the Guarantor do, and all
financial statements and information hereafter furnished to City by the Guarantor will, fully and
accurately present the condition (financial or otherwise) of Guarantor as of their dates and the
results of the Guarantor's operations for the periods therein specified, and, since the date of the
most recent financial statements of the Guarantor heretofore furnished to City, no material
adverse change has occurred in the financial condition of the Guarantor, nor, except as heretofore
disclosed in writing to City, has the Guarantor incurred any material liability, direct or indirect,
fixed or contingent; (g)after giving effect to this Guaranty, the Guarantor issolvent, is not
engaged or about to engage in business or a transaction for which the property of the Guarantor
is an unreasonably small capital, and does not intend to incur or believe that it will incur debts
that will be beyond its ability to pay as such debts mature; (h)the Guarantor has read and fully
understands the provisions contained in the DDA and the Other Agreements.The Guarantor's
representations, warranties and covenants are a material inducement to City to convey the
Property and enter into the Other Agreements and shall survive the execution hereof and any
bankruptcy, foreclosure, transfer of security or other event affecting Developer, any Person, or
any security for all or any part of the Guaranteed Obligations.
Section 14.Notices.
All notices, requests, consents, demands and other communications required or which
any party desires to give hereunder or under the DDA shall be in writing and, unless otherwise
ATTACHMENT 14ACity of Tustin/Regency CentersDDA
Tustin Regency DDA ATTACHMENT 14A(REG
-13 -September 29, 2015
Guaranty) 9-29-15 (Agd) (5).Docx
specifically provided in the DDA, shall be deemed sufficiently given or furnished if delivered by
personal delivery, by nationally recognized overnight courier service, or by certified United
States mail, postage prepaid, addressed to the party to whom directed at the addresses specified
in this Guarantyor in the DDA(unless changed by similar notice in writing given by the
particular party whose address is to be changed) or by facsimile. Any such notice or
communication shall be deemed to have been given either at the time of personal delivery or, in
the case of courier or mail, as of the dateof first attempted delivery at the address and in the
manner provided herein, or, in the case of facsimile, upon receipt; provided that service of a
notice required by any applicable statute shall be considered complete when the requirements of
that statute are met. Notwithstanding the foregoing, no notice of change of address shall be
effective except upon actual receipt. This Section shall not be construed in any way to affect or
impair any waiver of notice or demand provided in this Guaranty, the DDA or the Other
Agreements or to require giving of notice or demand to or upon any Person in any situation or
for any reason.
Section 15.Cumulative Rights.
All of the rights and remedies of City under this Guaranty, the DDA and the Other
Agreements are cumulative of each other and of any and all other rights at law or in equity, and
the exercise by City of any one or more of such rights and remedies shall not preclude the
simultaneous or later exercise by City of any or all such other rights and remedies. No single or
partial exercise of any right or remedy shall exhaust it or preclude any other or further exercise
thereof, and every right and remedy may be exercised at any time and from time to time. No
failure by City to exercise, or delay in exercising, any right or remedy shall operate as a waiver
of such right or remedy or as a waiver of any Material Default. No notice to or demand on the
Guarantor in any case shall of itself entitle the Guarantor to any other or further notice or
demand in similar or other circumstances. No provision of this Guaranty or any right or remedy
of City with respect hereto, or any default or breach, can be waived, nor can this Guaranty or the
Guarantor be released or discharged in any way or to any extent, except specifically in each case
by a writing intended for that purpose (and which refers specifically to this Guaranty) executed
and delivered by City to the Guarantor.
Section 16.Subrogation.
The Guarantor shall not have any right of subrogation under the DDA or the Other
Agreements or any right to participate in any security for the Guaranteed Obligations or any right
to reimbursement, exoneration, contribution, indemnification or any similar rights, until the
Guaranteed Obligations have been fully and finally discharged in accordance with Section2.4
above, and the Guarantor hereby waives all of such rights. The Guarantor shall not exercise any
rights that it may acquire by way of subrogation under this Guaranty, by virtue of any payment
made hereunder or otherwise, until all the Guaranteed Obligations have been paid or performed
in full.If any amount is paid to Guarantor on account of such subrogation rights before the
Guaranteed Obligations have been paid or performed in full, the amount will be held in trust for
the benefit of City and will immediately be paid to City to be credited and applied upon the
Guaranteed Obligations, whether matured or unmatured, in such order as City, in its sole and
absolute discretion, determines. Until the Guaranteed Obligations are paid or performed in full,
ATTACHMENT 14ACity of Tustin/Regency CentersDDA
Tustin Regency DDA ATTACHMENT 14A(REG
-14 -September 29, 2015
Guaranty) 9-29-15 (Agd) (5).Docx
any indebtedness of Developer to the Guarantor is hereby subordinated to all obligations and
liabilities of Developer to City arising out of or related to the DDA.
Section 17.Time of Essence.
Time shall be of the essence in this Guaranty with respect to all of the Guarantor's
obligations hereunder.
Section 18.Bankruptcyof Developer
The obligations of the Guarantor under this Guaranty will continue to be effective, or be
automatically reinstated:(a)if the performance or the payment, in whole or in part, of any of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned by City (as a
preference, fraudulent conveyance or otherwise) upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of City, the Guarantor or any other Person, or(b)upon or as a result
of the appointment of a custodian, receiver, trustee or other officer with similar powers with
respect to Developer, the Guarantor a or any other person, or any substantial part of its property,
or otherwise, all as though such payments had not been made. If Material Default has occurred
and continues or exists and declaration of default or acceleration under or with respect to the
DDA or if any default occurs under this Guaranty or any of the Guaranteed Obligations at such
time isprevented by reason of the pendency against the Guarantor or Developer or any other
Person of a case or proceeding under a bankruptcy or insolvency law, the Guarantor , agrees that
this Guaranty and the Guaranteed Obligations will be deemed to have been declared in default or
accelerated with the same effect as if this Guaranty and the Guaranteed Obligations had been
declared in default and accelerated in accordance with their respective terms. The Guarantor will
immediately perform or pay the Guaranteed Obligations as required under this Guaranty without
further notice or demand.
Section 19.Healthcare Developer Obligations
\[{If Healthcare Property transaction with Healthcare Developer occurs immediately following
acquisition of Healthcare Property by Developer, this Section shall be marked Intentionally
Deleted and the text shall be deleted/If Healthcare Property transaction with Healthcare
Developer does not occur immediately following acquisition of Healthcare Property by
Developer, this Section 18 shall be included in the Guaranty:}
In the event Developer purchases the Healthcare Property and does not concurrently Transfer
the entirety of the Healthcare Propertytoone or more Healthcare Developer(s)approved by the
City and providing HCD Guaranties from Guarantors approved by the City in accordance with
the requirements of the DDA, thenas to the portion of the Healthcare Property not Transferred
(“Remainder Property”), the Guaranteed Obligations shall include all obligations of Healthcare
Developer with respect to the Remainder Property and the Healthcare Provisions under the
DDA and the Other Agreementsas and to the extent of the obligations of Guarantor with respect
to the Retail Property and the Retail Provisions under this Guaranty, as though the term “Retail
Parcel” included the Remainder Parcel and the term “Minimum Retail Improvements”
including the Minimum Healthcare Improvements.In the event Developer later Transfers the
Healthcare Property or any Remainder Property to an approved Healthcare Developer which
ATTACHMENT 14ACity of Tustin/Regency CentersDDA
Tustin Regency DDA ATTACHMENT 14A(REG
-15 -September 29, 2015
Guaranty) 9-29-15 (Agd) (5).Docx
provides an HCD Guaranty acceptable to City in its sole discretion,from a Guarantor
acceptable to City in its sole discretion, this Guaranty shall no longer include the obligations of
the Healthcare Developer under the DDAas to the portion of the Healthcare Property so
Transferredand the City shall execute an amendment to this Guaranty deleting this Section 18.\]
Section 20.Entire Agreement; Counterparts; Construction.
This Guaranty embodies the entire agreement between City and the Guarantor with
respect to the guaranty by the Guarantor of the Guaranteed Obligations. This Guaranty
supersedes all prior agreements and understandings, if any, with respect to the guaranty by the
Guarantor of the Guaranteed Obligations. This Guaranty shall be effective upon execution by
the Guarantor and delivery to City. This Guaranty may not be modified, amended or superseded
except in a writing signed by City and the Guarantor referencing this Guaranty by its date and
specifically identifying the portions hereof that are to be modified, amended or superseded. This
Guaranty has been executed in a number of identical counterparts, each of which shall be
deemed an original for all purposes and all of which constitute, collectively, one agreement. As
used herein, the words "include"and "including"shall be interpreted as if followed by the words
"without limitation."
\[Signatures appear on the following page\]
ATTACHMENT 14ACity of Tustin/Regency CentersDDA
Tustin Regency DDA ATTACHMENT 14A(REG
-16 -September 29, 2015
Guaranty) 9-29-15 (Agd) (5).Docx
IN WITNESS WHEREOF, the Guarantor has duly executed this Guaranty as of the date
first written above.
Address of Guarantor
By:
ATTACHMENT 14ACity of Tustin/Regency CentersDDA
Tustin Regency DDA ATTACHMENT 14A(REG
-17 -September 29, 2015
Guaranty) 9-29-15 (Agd) (5).Docx
ATTACHMENT 14B
FORM OF GUARANTY
FOR HEALTHCAREPARCEL
GUARANTY AGREEMENTFOR HEALTHCARE PARCELHCD
This (this “
Guaranty
”)is made as of the ______ day of __________________, 20__, by____________,a
Healthcare Guarantor
_______________________(“”)in favor of the CITY OF TUSTIN, a
City
public body, corporate and politic (“”).
Recitals
Developer
A.1C Tustin Legacy, LLC, a Delaware LLC (“”)has entered into that
certain Tustin Legacy Disposition and Development Agreement for Disposition Parcel 1C, dated
as of ________________(including all Attachments thereto),which as may be amended,
DDA
updated or modified from time to time are referred to collectively as “”)under which
Developer would acquire the Retail Property and ___________, a ___________(“Healthcare
”
Developer)would acquire the Healthcare Property (each as defined in the DDA.) Initially
capitalized terms used and not defined herein shall have the meanings set forth in the DDA.
B.Concurrently with the delivery of this HCD Guaranty, Developer has assignedits
HCD Rights
rights and obligations with respect to the Healthcare Property under the DDA (“and
Obligations
”)to Healthcare Developerand Healthcare Developer has acquired the Healthcare
Property.
C.Under the terms of the DDA, Healthcare Developer is required to perform certain
design work and construct the Minimum Healthcare Improvements, including, if not carried out
by Developer, the Minimum Horizontal Improvements.
The Healthcare Guarantor is the sole owner/managing member of Healthcare
D.
Developerand thus has a direct and substantial interest in Healthcare Developer and will derive
benefit from the acquisition of the Healthcare Property and the development and sale or lease of
the Healthcare Project. The Healthcare Guarantor will also derive a direct and substantial benefit
by guaranteeing Healthcare Developer’s obligation to undertake the actions with respectto the
Healthcare Parcel required of Healthcare Developer under the DDA, including providing this
HCD Guaranty, inasmuch as the City would not have transferred the Healthcare Parcel to
Healthcare Developer or consented to such transfer in the absence of Healthcare Developer
undertaking such obligations.
Agreements
For good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged and to induce City to authorizethe transfer of the Healthcare Propertyto
Healthcare Developerandto approvethe assignment of the HCD Rights and Obligationsto
Healthcare Developer the HealthcareGuarantor hereby makes the guaranties, obligations,
covenants and agreements set forth below in this Agreement.
ATTACHMENT 14BCity of Tustin/Regency CentersDDA
Tustin Regency ATTACHMENT 14B Healthcare Guaranty 9-29-
-1-September 29, 2015
15(Agd)(5).Docx
Section 1.HCD Guaranty.
1.1Payment and Completion Obligations. The Healthcare Guarantor
absolutely and unconditionally guarantees that the Healthcare Guarantor shall pay any and all
costs required and cause any all work to be performed as may be required to cause the
Payment and
Completion ofthe following elements of the Healthcare Project to occur(“
Completion Obligations
”):
1.1.1Payment of all Development Costs for the design, construction
and Completion of the Minimum HealthcareImprovements;provided that Healthcare
Guarantor’s obligation to pay for construction and Completion of the Healthcare Vertical
Improvements pursuant to this Section 1.1.1 shall apply commencing when Developer has pulled
the first permit for construction of such Healthcare Vertical Improvements.
1.1.2Payment of all Development Costs for the design,construction and
Completion of any additional Healthcare Vertical Improvements or other improvements,
including Healthcare Horizontal Improvementsupon the Healthcare Parcel for which
Additional
construction has commencedprior to the Expiration Date of this HCD Guaranty(“
Healthcare Improvements
”); provided that such construction shall be deemed to have
commenced prior to the Expiration Date of this HCD Guarantyif a building permit for such
Vertical Improvements or any portion thereof has been issued by the City at any time prior to the
Expiration Date of this HCD Guarantyas defined in Section 16.
1.1.3The indemnities and other obligations of Healthcare Developer
pursuant to Section 10 of the DDA, and
1.1.4Payment of all costs and expenses of the City arising in
connection with the exercise by the City of its remedies under the DDA and/or thisHCD
Guarantywith respect to Healthcare Developer, the HealthcareImprovements, the
HealthcareProvisions and/or the HealthcareParcel,or any Improvements thereon,
including, in each case, any costs incurred by the City with respect to the Healthcare
Parcel, the Healthcare Project, Healthcare Developer or the HCD Guaranty and, if
applicable,the costs and expenses of the City arising from its exercise of the Right of
Repurchase or Right of Reversion as provided in Sections16.3 and 16.4 of the DDA,
respectively, including the payment of the Repurchase Price,but excluding the
Repurchase Price applicable to any Reacquired Property actually acquired by the City
pursuant to the Right of Repurchase; provided that the City shall be entitled to retain the
Reacquired Property so acquired in its entirety, notwithstanding any contribution or
payment made by Healthcare Developer, the Healthcare Guarantors(s) under this
Guaranty,Developer or the Guarantor(s)underthe REG Guaranty.
1.1.5The Healthcare Guarantorshall pay (or shall have caused othersto
pay) all of the Development Costs incurred to cause the Completion of the Healthcare Project,
such that the Healthcare Propertyshall be in a lien-free condition as required by the DDA.
1.2Payment of Enforcement Costs. In addition to its obligations in
Section1.1,theHealthcare Guarantor agrees to pay all costs and expenses incurred by City,
ATTACHMENT 14BCity of Tustin/Regency CentersDDA
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Guaranty 9-29-15(Agd)(5).Docx
including reasonable attorneys’fees and costs, court costs and all other litigation expenses
(including reasonable expert witness fees, costs of depositions and other discovery, travel
expenses, exhibit preparation, and courier, postage, communication and document copying
Enforcement Payment Obligation
expenses), inenforcing this HCD Guaranty (“”).The
provisions of this Section1.2 shall survive the termination of thisHCDGuaranty.
1.3Performance of Work.The commencement,construction and Completion
of the Improvements: (a) shall be performed in accordance with the Scope of Development and
within the time periods set forth in the Schedule of Performance all as and to the extent set forth
in the DDA;(b) shall be performed in accordance with the other requirements for construction of
the HealthcareProject set forthin the DDA, and (c) shall be diligently pursued by the Healthcare
Guarantor to Completion of the Healthcare Projectand issuance of a Certificate of Compliance
for the HealthcareParcel.
GuaranteedObligations
1.4Guaranteed Obligations.“”means the Payment
and Completion Obligations and the Enforcement Payment Obligation.
1.5Definition of Project. For purposes of this Guaranty, the definition of
Project shall meanthe Project as described in the DDA and shall include the Additional
HealthcareImprovements.
Section 2.Performance of Payment and Completion Obligations Upon Default by
Healthcare Developer
2.1Default by Healthcare Developer.IfHealthcareDeveloper is in Material
Default under the DDA for any reason, including for failure to commence or prosecute the
development of the Healthcare Project in accordance with the Schedule of Performance or the
Scope of Development, then City may deliver written notice to the Healthcare Guarantor (a
HCD Guaranty Notice
“”),statingthe Material Default by Healthcare Developerand requesting
that the HealthcareGuarantor undertake to do and pay the Guaranteed Obligations.The
Healthcare Guarantor, promptly after receipt of the HCD Guaranty Notice shall perform its
Payment and Completion Obligations. The HealthcareGuarantor will take whatever actions may
be necessary to perform the Payment and Completion Obligations, including the following:
2.1.1Diligently and expeditiously proceed to ensure the Completion of
the Healthcare Project at the Healthcare Guarantor’ssole cost and expense, at the times and
subject to the terms and conditions set forth in the DDA;
2.1.2Fully pay and discharge all Development Costs incurred or
required to be incurred in connection with the Completion of the Healthcare Project; and
2.1.3Pay any amounts necessary to release and discharge any
mechanics’, material providers’or other liens that may exist or come into existence in
connection with the HealthcareParcel andCompletionof the Healthcare Projector in the
alternativecontest the same subject to the terms and conditions set forth in the DDA.
2.2Difficulty or Expense of Completion of the Healthcare Project Does Not
Excuse Healthcare Guarantor or HCD Guaranty. The HealthcareGuarantor’sobligations under
ATTACHMENT 14BCity of Tustin/Regency CentersDDA
Tustin Regency ATTACHMENT 14B Healthcare
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Guaranty 9-29-15(Agd)(5).Docx
this HCD Guaranty will remain in full force and effect until the Guaranteed Obligations are fully
and finally performed, regardless of whether the Healthcare Guarantor or any other Person
determines that Completion of the Healthcare Project is difficult, more expensive thanoriginally
Unanticipated
intended, or involves “Unanticipated Expense or Delay”(defined below). “
Expense or Delay
”includes any event or circumstance that would make the Completion of the
Healthcare Project more costly or would delay the Completion of the Healthcare Project, such
events and circumstances specifically including the following matters:(a)a casualty that affects
the Healthcare Parcel or any Improvements that may have been constructed; (b)the discovery of
unanticipated soils conditions or Hazardous Materials in, on, or under the Healthcare Parcel;
(c)Governmental Requirements or court orders applicable to the Healthcare Project; (d)any lack
of debt or equity financing for Development Costs; (e)any change in market conditions and (f)
other events or circumstances beyond the control of Healthcare Developer or the Healthcare
Guarantor relating to the Healthcare Project.
2.3No Discharge Until Completion. It is the intent of the Healthcare
Guarantor and City that the obligations and liabilities of theHealthcareGuarantor hereunder are
absolute, irrevocable and unconditional under any and all circumstances and that until the
Guaranteed Obligations are fully and finally performed, the obligations and liabilities of the
Healthcare Guarantor hereunder shall not be discharged or released, in whole or in part, by any
act or occurrence that might, but for the provisions of this HCD Guaranty, be deemed a legal or
equitable discharge or release of a guarantor. The Guaranteed Obligations shall be deemed to be
fully and finally performed for purposes of this HCD Guaranty and this HCD Guaranty shall
terminate on the later of (a) the Expiration Date (defined in Section 16) and (b) the date on which
the Certificate of Compliance is recorded by the City with respect to the HealthcareParcel.
Section 3.Absolute, Irrevocable and Unconditional HCD Guaranty.
3.1Irrevocable HCD Guaranty. ThisHCDGuaranty is an absolute,
irrevocable and unconditional guaranty of performance. ThisHCDGuaranty shall be effective
as a waiver of, and the Healthcare Guarantor hereby expressly waives, any right to which the
HealthcareGuarantor may otherwise have been entitled, whether now existing under statute, at
law or in equity, or arising under any statute enacted after the date hereof or arising under any
doctrine of law or equity promulgated after the date hereof to require City to take prior recourse
or proceedings against any collateral, security or Person. It shall not be necessary for City, in
order to enforce such payment or performance by the Healthcare Guarantor, first to institute suit
or pursue or exhaust any rights orremedies against Developer, Healthcare Developer, the
Guarantorunder the REG Guarantyor any other Person liable on such indebtedness or for such
performance, or to enforce any rights against any security given to secure such indebtedness or
performance,or to join DeveloperorHealthcare Developeror any other Person liable for the
performance of the Guaranteed Obligations or any part thereof in any action to enforce this HCD
Guaranty, or to resort to any other means of obtaining performance of the Guaranteed
Obligations.
3.2Demand Against the Healthcare Guarantor. City may bring suit or make a
demand against Healthcare Developer or against the HealthcareGuarantor or any other parties
who have signed thisHCDGuaranty or any other guaranty covering all or any part of the
ATTACHMENT 14BCity of Tustin/Regency CentersDDA
Tustin Regency ATTACHMENT 14B Healthcare
-4-September 29, 2015
Guaranty 9-29-15(Agd)(5).Docx
Guaranteed Obligations, or against any one or more of them, separately or together, without
impairing the rights of City against the Healthcare Guarantor.
3.3Independent Guaranty. The obligations of the Healthcare Guarantor under
this HCD Guaranty are independent of and in addition to the obligations and liabilities of
Developer andHealthcare Developer under the DDA and under the Other Agreements. This
HCDGuaranty is independent of (and shall not be limited by) any other guaranty now existing or
hereafter given by the Healthcare Guarantor, or any other Person under or in connection with the
Property, the Improvements, the DDA or the Other Agreements. The liability of the Healthcare
Guarantor under this HCD Guaranty is in addition to any andall other liability the Healthcare
Guarantor may have in any other capacity with respect to Healthcare Developer, including, if
applicable, any direct or indirect ownership or control of any debt and/or equity securities of
Healthcare Developer or any Controlling Person of theHealthcareDeveloper.
Section 4.Certain Agreements and Waivers by the Healthcare Guarantor.
4.1Waivers. The Healthcare Guarantor agrees that (a)neither City’srights or
remedies nor the Healthcare Guarantor’sobligations under the terms of thisHCDGuaranty shall
be released, diminished, impaired, reduced or affected by any one or more of the following
events, actions, facts, or circumstances, (b)theHealthcareGuarantor waives any rights, claims or
defenses arising from any such events, actions, facts, or circumstances, and (c)the liability of the
Healthcare Guarantor under thisHCDGuaranty shall be absolute, unconditional and irrevocable
irrespective of:
(i)any limitation on the liability of, or
recourse against, any other Person, including City, in the DDA or
any of the Other Agreements or arising under any law;
(ii)any claim or defense that this HCD
Guaranty was made without consideration or is not supported by
adequate consideration or that the obligations of the Healthcare
Guarantor hereunder exceed or are more burdensome than those of
HealthcareDeveloper under the DDA;
(iii)the taking or accepting of any other
security or guaranty for, or right of recourse with respect to, any or
all of the Guaranteed Obligations;
(iv)the operation of any statutes of
limitation or other laws regarding the limitation of actions, all of
which are hereby waived as a defense to any action or proceeding
brought by Cityagainstthe Healthcare Guarantor, to the fullest
extent permitted by law;
(v)any homestead exemption or any
other exemption under applicable law;
ATTACHMENT 14BCity of Tustin/Regency CentersDDA
Tustin Regency ATTACHMENT 14B Healthcare
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Guaranty 9-29-15(Agd)(5).Docx
(vi)any release, surrender, abandonment,
exchange, alteration, sale or other disposition, subordination,
deterioration, waste, failure to protect or preserve, impairment, or
loss of, or any failure to create or perfect any lien or security
interest with respect to, or any other dealings with, any collateral or
security at any time existing or purported, believed or expected to
exist in connection with any or all of the Guaranteed Obligations, or
any impairment of the Healthcare Guarantor’srecourse against any
Person or collateral;
(vii)whether express or by operation of
law, any partial release of the liability of the Healthcare Guarantor
hereunder (except to the extent expressly so released by City with
respect to this HCD Guaranty)or any complete or partial release of
HealthcareDeveloper or any other Person liable, directly or
indirectly, for the performance of any or all of the Guaranteed
Obligations;
(viii)the death, insolvency, bankruptcy,
disability, dissolution, liquidation, termination, receivership,
reorganization, merger, consolidation, change of form, structure or
ownership, sale of all assets, or lack of corporate, partnership or
other power of Healthcare Developer or any other Person at any
time liable for the performance of any or all of the Guaranteed
Obligations;
(ix)the death, insolvency, bankruptcy,
disability, dissolution, liquidation, termination, receivership,
reorganization, merger, consolidation, change of form, structure or
ownership, sale of all assets, or lack of corporate, partnership or
other power of the Healthcare Guarantor or its respective successors
or assigns;
(x)either with or without notice to or
consent of the Healthcare Guarantor, any renewal, extension,
modification, supplement, subordination or rearrangement of the
terms of any or all of the Guaranteed Obligations and/or the DDA
or any of the Other Agreements or any other agreements that may
have been executed by Healthcare Developer, City or any third
party affecting the obligations ofHealthcareDeveloperor City
under the DDA, or performance (including changes with respect to
the construction of the Improvements) or any other terms thereof, or
any waiver, termination, or release of, or consent to departure from,
any of the DDA, the Other Agreements, any other agreements that
may have been executed by Healthcare Developer , City or any
third party affecting the obligations ofHealthcareDeveloper or City
under the DDA or any other guaranty of any or all of the
ATTACHMENT 14BCity of Tustin/Regency CentersDDA
Tustin Regency ATTACHMENT 14B Healthcare
-6-September 29, 2015
Guaranty 9-29-15(Agd)(5).Docx
Guaranteed Obligations, or any adjustment, indulgence,
forbearance, or compromise that may be granted from time to time
by City to Healthcare Developer or to any other Person at any time
liable for the performance of any or all of the Guaranteed
Obligations;
(xi)any neglect, lack of diligence, delay,
omission, failure, or refusal of City to take or prosecute (or in
taking or prosecuting) any action for the collection or enforcement
of any of the Guaranteed Obligations, or to foreclose or take or
prosecute any action to foreclose (or in foreclosing or taking or
prosecuting any action to foreclose) upon any security therefor, or
to exercise (or in exercising) any other right or power with respect
to any security therefor, or to take or prosecute (or in taking or
prosecuting), or any failure to sell or otherwise dispose of in a
commercially reasonable manner any collateral securing any or all
of the Guaranteed Obligations;
(xii)any failure of City to notify the
HealthcareGuarantor of any creation, renewal, extension,
rearrangement, modification, supplement, subordination, or
assignment of the DDA or any of the Other Agreements or any of
the Guaranteed Obligations or any part thereof, or of any release of
or change in any security, or of the occurrence or existence of any
Material Default, or of any other action taken or refrained from
being taken by City against Healthcare Developer or any security or
other recourse, or of any new agreement between City and
Healthcare Developer, it being understood that City shall not be
required to give theHealthcareGuarantor any notice of any kind
under any circumstances with respect to or in connection with the
Guaranteed Obligations, any and all rights to notice the Healthcare
Guarantor may have otherwise had being hereby waived by the
Healthcare Guarantor, and the Healthcare Guarantor shall be
responsible for obtaining for itself information regarding Healthcare
Developer and any collateral, including any changes in the business
or financial condition of Healthcare Developer or any collateral,
and the Healthcare Guarantor acknowledges and agrees that City
shall have no duty to notify the Healthcare Guarantor of any
information which City may have concerningHealthcareDeveloper
or any collateral;
(xiii)the existence of any claim,
counterclaim, set-off or other right that the Healthcare Guarantor
may at any time have against Healthcare Developer, City, or any
other Person, whether or not arising in connection with thisHCD
Guaranty, the DDA or any Other Agreements;
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(xiv)the unenforceability of all or any part
of the Guaranteed Obligations against Healthcare Developer,
whether because the Guaranteed Obligations exceed the amount
permitted by law or violate any usury or otherlaw, or because the
Persons creating the Guaranteed Obligations acted in excess of their
authority, or because of a lack of validity or enforceability of or
defect or deficiency in the DDA or the Other Agreements, or
because Healthcare Developer has any valid defense, claim or offset
with respect thereto, or because Healthcare Developer’sobligation
ceases to exist by operation of law, or because of any other reason
or circumstance, it being agreed that the Healthcare Guarantor shall
remain liable hereon regardless of whetherHealthcareDeveloper or
any other Person be found not liable on the Guaranteed Obligations,
or any part thereof, for any reason (and regardless of any joinder of
Healthcare Developer or any other party in any action to obtain
payment or performance of any or all of the Guaranteed
Obligations);
(xv)any order, ruling or plan of
reorganization emanating from proceedings under Title11 of the
United States Code with respect toHealthcareDeveloper or any
other Person, including any extension, reduction, composition, or
other alteration of the Guaranteed Obligations, whether or not
consented to by City, or any action taken or omitted by City in any
such proceedings, including any election to have City’sclaim
allowed as being secured, partially secured or unsecured, any
extension of credit by City in any such proceedings or the taking
and holding by City of any security for any such extension of credit;
(xvi)any other condition, event, omission,
action that would in the absence of this paragraphresultin the
release or discharge of theHealthcareGuarantor from the
performance or observance of any obligation, covenant or
agreement contained in this HCD Guaranty or any other agreement;
(xvii)any notice to the Healthcare
Guarantor of the existence of or the extending toHealthcare
Developer of any grace or cure period for the performance of any of
the Guaranteed Obligations;
(xviii)any defense of waiver, release,
discharge in res judicata, statute of frauds, fraud, or ultra vires acts
that may be available to Developer or Healthcare Developerin
respect of the DDA or any of the Other Documents;
(xix)to the fullest extent permitted by law:
(A)any defense arising as a result of City’selection, in any
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proceeding instituted under the Bankruptcy Code, of the application
of Section1111(b)(2) of the Bankruptcy Code; and (B)without
limiting the generality of any other provision hereof, all rights and
benefits that might otherwise be available to the Healthcare
Guarantor under any guarantor, suretyship or other defenses under
any law of the State of California or otherwise (includingCalifornia
Civil Code Sections2787to2855, inclusive), including without
limitation any rights of subrogation, reimbursement,
indemnification, and contribution and any other rights and defenses
that are or may become available to the Guarantor by reason of such
provisions of the California Civil Code.
(xx)the benefit of any statute of
limitations affecting the liability of the Healthcare Guarantor under
this HCD Guaranty or the enforcement of this HCDGuaranty,
including any rights arising under Section359.5 of the California
Code of Civil Procedure;
(xxi)any other circumstance that might
otherwise constitute a defense available to, or a discharge of,
Healthcare Developer in respect of the Guaranteed Obligations or
Healthcare Guarantor in respect of thisHCDGuaranty; or
(xxii)any early termination of any of the
Guaranteed Obligations.
4.2Additional Waivers.
4.2.1Without limiting any of the waivers contained in Section4.1, the
Healthcare Guarantor waives all rights and defenses that the Healthcare Guarantor may have
becauseHealthcare Developer’s obligations may be, or may be deemed to be, secured by real
means,
property.This among other things:
(i)The City may collect from the
Healthcare Guarantor without first foreclosing on any real or
personal property collateral pledged by the Healthcare Developeror
Developer.
(ii)If the City forecloses on any real
property collateral pledged by the Healthcare Developeror
Developer:(i)the amount of theobligation owed to the City may be
reduced only by the net price for which that collateral is sold at the
foreclosure sale or proceedings, even if the collateral is worth more
than the sale price and (2) the City may collect from theHealthcare
Guarantor even if the City, by foreclosing on the real property
collateral, has destroyed any right the Healthcare Guarantor may
have to collect from theHealthcareDeveloper.
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This is an unconditional and irrevocable waiver of any rights and defenses the Healthcare
Guarantor may have because the Healthcare Developer’sobligations may be, or may be deemed
to be, secured by real property.These rights and defenses include, but are not limited to, any
rights or defenses based upon Section580a, 580b, 580d, or 726 of the Code of Civil Procedure.
4.2.2Without limiting any of the waivers contained in Section 4.1,
Healthcare Guarantor hereby waives any rights or defenses based upon any or all of the
following:
(i)The Healthcare Guarantor rights of
subrogation, reimbursement, indemnification, and contribution and
any other rights and defenses that are or may become available to
the Healthcare Guarantor by reason of Sections 2787 to 2855,
inclusiveof the California Civil Code.
(ii)Any rights or defenses the Healthcare
Guarantor may have in respect of his or her obligations as a
guarantor by reason of any election of remedies by the creditor.
4.2.3Without limiting the generality of any other waiver or provision of
this Guaranty, Healthcare Guarantor waives any and all benefits or defenses under California
Civil Code Sections2899 and 3433, Chapter 2 of Title14 of the California Civil Code and
California Commercial Code section 3605.
4.3Preferences. In the event any payment byHealthcareDeveloper or any
other Person to City isheld to constitute a preference, fraudulent transfer or other voidable
payment under any bankruptcy, insolvency or similar law, or if for any other reason City is
required to refund such payment or pay the amount thereof to any other party, such payment by
Healthcare Developer or any other party to City shall not constitute a release of the Healthcare
Guarantor from any liability hereunder, and thisHCDGuaranty shall continue to be effective or
shall be reinstated (notwithstanding any prior release, surrender or discharge by City of this HCD
Guaranty or of theHealthcareGuarantor or the prior expiration of this Guaranty), as the case
may be, with respect to, and this HCD Guaranty shall apply to, any and all amounts so refunded
by City or paid by City to another Person (which amounts shall constitute part of the Guaranteed
Obligations), and any interest paid by City and any attorneys’fees, costs and expenses paid or
incurred by City in connection with any such event.
4.4Defenses. TheHealthcareGuarantor waives all rights and defenses
arising out of an election of remedies by City, including exercise by the City of its Right of
Reversion upon occurrence of a Reversion Event or a repurchase of the Property pursuant to
City’sRight of Repurchase, even though such election of remedies may have destroyed such
Healthcare Guarantor’srights of subrogation and reimbursement againstHealthcareDeveloper
by operation of California Code of Civil Procedure Section580d or otherwise.
4.5Subrogationand Anti-Deficiency Waivers.The Healthcare Guarantor
waives the Healthcare Guarantor’s rights of subrogation and reimbursement, including:(a)any
defenses theHealthcareGuarantor may have by reason of an election of remedies by City, and
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(b)any rights or defenses the Healthcare Guarantor may have by reason of protection afforded to
HealthcareDeveloper with respect to the Guaranteed Obligations pursuant to the anti-deficiency
or other laws of California limiting or discharging Healthcare Developer’sobligations, including
California Code of Civil Procedure Sections580a, 580b, 580d or 726.
4.6Waiver of Notice of Acceptance.The Healthcare Guarantor waives notice
of acceptance of this HCD Guaranty, any rights, defenses and benefits that may be derived from
Sections2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the
laws of any other jurisdiction, and all other suretyship defenses the Healthcare Guarantorwould
otherwise have under the laws of California or any other jurisdiction.
4.7No Limitation on Waivers. No provision or waiver in thisHCDGuaranty
shall be construed as limiting the generality of any other provision or waiver contained in this
HCD Guaranty. All of the waivers contained herein are irrevocable and unconditional and are
intentionally and freely made by the Healthcare Guarantor.
Section 5.Subordination.
If, for any reason whatsoever, Healthcare Developer is now or hereafter becomes
indebted, directly or indirectly to theHealthcareGuarantorincluding, without limitation, by
operation ofCivil Code Sections 2847 and 2848, or any successor statutes or similar law(any
Subordinated Debt
such indebtedness being referred to as the ""):
(i)The Subordinated Debt and all interest thereon and all
liens, security interests and rights now or hereafter existing with respect to property of
Healthcare Developer securing the Subordinated Debt shall, at all times, be subordinate
in all respects to the Guaranteed Obligations and to all liens, security interests and rights
now or hereafter existing to secure the Guaranteed Obligations, until the Guaranteed
Obligations have been paid or performed in full;
(ii)TheHealthcareGuarantor shall not be entitled to enforce or
receive payment, directly or indirectly, of any of the Subordinated Debt until the
Guaranteed Obligations have been fully and finally performed; provided, however, that
so long as no Material Default under the DDA or the Other Agreements shall have
occurred and be continuing, Healthcare Guarantor shall not be prohibited from receiving
such (i)reasonable management fees or reasonable salary from Healthcare Developer,
and (ii)distributions from Healthcare Developer in an amount equal to any income taxes
imposed on such Healthcare Guarantor which are attributable to Healthcare Developer’s
income from the Property;
(iii)TheHealthcareGuarantor hereby assigns and grants to City
a security interest in all the Subordinated Debt and security therefor, if any, of Healthcare
Developer to theHealthcareGuarantor now existing or hereafter arising, including any
dividends and payments pursuant to debtor relief or insolvency proceedings referred to
below. In the event of receivership, bankruptcy, reorganization, arrangement or other
debtor relief or insolvency proceedings involving Healthcare Developer as debtor, City
shall have the right to prove its claim in any such proceeding so as to establish its rights
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hereunder and shall have the right to receive directly from the receiver, trustee or other
custodian, dividends and payments that are payable upon any obligation of Healthcare
Developer to theHealthcareGuarantor now existing or hereafter arising, and to have all
benefits of any security therefor, until the Guaranteed Obligations have been fully and
finally performed. If, notwithstanding the foregoing provisions, the Healthcare
Guarantor should receive any payment, claim or distribution that is prohibited as
provided above in this Section 5, the Healthcare Guarantorshall pay the same to City
immediately, theHealthcareGuarantor hereby agreeing that it shall receive the payment,
claim or distribution in trust for City and shall have absolutely no dominion over the
same except to pay it immediately to City; and
(iv)TheHealthcareGuarantor shall promptly upon request of
City from time to time execute such documents and perform such acts as City may
require to evidence and perfect its interest and to permit or facilitate exercise of its rights
under this Section 5, including execution and delivery of proofs of claim, further
assignments and security agreements, and delivery to City of any promissory notes or
other instruments evidencing indebtedness of Healthcare Developer to the Healthcare
Guarantor. All promissory notes, accounts receivable ledgers or other evidences, now or
hereafter held by the Healthcare Guarantor, of obligations of Healthcare Developer to the
HealthcareGuarantor shall contain a specific written notice thereon that the indebtedness
evidenced thereby is subordinated under and is subject to the terms of this HCD
Guaranty.
Section 6.Other Liability of the Healthcare Guarantor or Healthcare Developer.
If theHealthcareGuarantor is or becomes liable, by endorsement or otherwise, for any
indebtedness owing by Healthcare Developer to City other than under thisHCDGuaranty, such
liability shall not be in any manner impaired or affected hereby, and the rights ofCity hereunder
shall be cumulative of any and all other rights that City may have against the Healthcare
Guarantor. IfHealthcareDeveloper is or becomes obligated to City for any liabilities or
indebtedness other than or in excess of the Guaranteed Obligations, any payment received or
recovery realized upon such other liabilities or indebtedness of Healthcare Developer to City
may be applied by City to such other liabilities or indebtedness.
Section 7.City Assigns; Disclosure of Information.
This HCD Guaranty isfor the benefit of City and City’ssuccessors and assigns, and in
the event of an assignment of the Guaranteed Obligations, or any part thereof, the rights and
benefits hereunder, to the extent applicable to the Guaranteed Obligations so assigned, may be
transferred with such Guaranteed Obligations.TheHealthcareGuarantor waives notice of any
transfer or assignment of the Guaranteed Obligations or any part thereof.
Section 8.Binding Effect; Successor and Assigns.
This HCD Guaranty is binding not only on the Healthcare Guarantor, but also on the
Healthcare Guarantor’ssuccessors and assigns.
Section 9.Governing Law.
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The validity, enforcement, and interpretation of thisHCDGuaranty, shall for all purposes
be governed by and construed in accordance with the laws of the State of California (without
regard to its conflicts of law principles) and applicable United States federal law, and is intended
to be performed in accordance with, and only to the extent permitted by, such laws. The
HealthcareGuarantor and City agree that any disputes arising between them in connection with
thisHCDGuaranty or in connection with or under any instrument, agreement or document
provided for or contemplated by this HCD Guaranty, including in connection with the execution
of thisHCDGuaranty, the Guaranteed Obligations or any other matter arising under, related to
or in connection with this HCD Guaranty (including a determination of any and all issues in such
dispute, whether of fact or of law) shall be tried and litigated exclusively in the Superior Court of
the County of Orange, State of California, in any other appropriate court of that county, or in the
United States District Court for the Central District of California. This choice of venue is
intended by the HealthcareGuarantor and City to be mandatory and not permissive in nature,
thereby precluding the possibility of litigation between or among the HealthcareGuarantor and
City with respect to or arising out of this HCD Guaranty in any jurisdiction other than that
specified in this Section9. Each party hereby waives any right that it may have to assert forum
non conveniens or similar doctrine or to object to venue with respect to any proceeding brought
in accordance with this Section9, and stipulates that the State and federal courts located in the
County of Orange, State of California, shall have in personam jurisdiction and venue overeach
of them for the purpose of litigating any dispute, controversy or proceeding arising out of this
HCD Guaranty. Each party hereby authorizes and accepts service of process sufficient for
personal jurisdiction in any action against it as contemplated by this Section9by means of
registered or certified mail, return receipt requested, postage prepaid, to its address for the giving
of notices as set forth in this HCD Guaranty, or in the manner set forth below for notices. Any
final judgment rendered against a party in any action or proceeding shall be conclusive as to the
subject of such final judgment and may be enforced in other jurisdictions in any manner
provided by law.
Section 10.Invalidity of Certain Provisions.
If any provision of this HCD Guaranty or theapplication thereof to any Person or
circumstance shall, for any reason and to any extent, be declared to be invalid or unenforceable,
neither the remaining provisions of this HCD Guaranty nor the application of such provision to
any other Person or circumstance shall be affected thereby, and the remaining provisions of this
HCD Guaranty, or the applicability of such provision to other Persons or circumstances, as
applicable, shall remain in effect and be enforceable to the maximum extent permitted by
applicable law.
Section 11.Costs and Expenses of Enforcement.
TheHealthcareGuarantor agrees to pay to City on demand all costs and expenses
incurred by City in seeking to enforce City’srights and remedies under this HCD Guaranty,
including court costs, costs of alternative dispute resolution and reasonable attorneys’fees,
whether or not suit is filed or other proceedings are initiated hereon. All such costs and expenses
incurred by City shall constitute a portion of the Guaranteed Obligations hereunder, shall be
subject to the provisions hereof with respect to the Guaranteed Obligations and shall be payable
by the HealthcareGuarantor on demand by City.
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Section 12.No Usury.
It is not the intention of City or the Healthcare Guarantor to obligate the Healthcare
Guarantor to pay interest in excess of that lawfully permitted to be paid by the Healthcare
Guarantor under applicable law. Should it be determined that any portion of the Guaranteed
Obligations or any other amount payable by the Healthcare Guarantor under this HCD Guaranty
constitutes interest in excess of the maximum amount of interest that theHealthcareGuarantor,
in its capacity as guarantor, may lawfully be required to pay under applicable law, the obligation
of the Healthcare Guarantor to pay such interest shall automatically be limited to the payment
thereof in the maximum amount so permitted under applicable law. The provisions of this
Section shall override and control all other provisions of this HCD Guaranty and of any other
agreement between theHealthcareGuarantor and City.
Section 13.Representations, Warranties, and Covenants of the Healthcare Guarantor.
Until the Guaranteed Obligations are performed in full and each and every term, covenant
and condition of this HCD Guarantyis fully performed,the Healthcare Guarantor hereby
represents, warrants, and covenants that: (a)the Healthcare Guarantor has a financial interest in
HealthcareDeveloper and will derive a material and substantial benefit, directly or indirectly,
from the developing the Healthcare Projectand from the making of this HCD Guaranty by the
Healthcare Guarantor; (b)this HCD Guaranty is duly authorized and valid, and is binding upon
and enforceable against the Healthcare Guarantor; (c)theHealthcareGuarantor is not, and the
execution, delivery and performance by the Healthcare Guarantor of this HCD Guaranty will not
cause theHealthcareGuarantor to be, in violation of or in default with respect to any law or in
default (or at risk of acceleration of indebtedness) under any agreement or restriction by which
the Healthcare Guarantor is bound or affected; (d)theHealthcareGuarantor is duly organized,
validly existing, and in good standing under the laws of the state of its organization and has full
power and authority to enter into and perform this HCD Guaranty; (e)except as may have been
previously disclosed to City in writing, there is no litigation pending or, to the knowledge of the
Healthcare Guarantor, threatened by or before any tribunal against or affecting the Healthcare
Guarantor; (f)all financial statements and information heretofore furnished to City by the
Healthcare Guarantor do, and all financial statements and information hereafter furnished to City
by the Healthcare Guarantor will, fully and accurately present the condition (financial or
otherwise) of Healthcare Guarantor as of their dates and the results of the Healthcare Guarantor’s
operations for the periods therein specified, and, since the date of the most recent financial
statements of the Healthcare Guarantor heretofore furnished to City, no material adverse change
has occurred in the financial condition of the HealthcareGuarantor, nor, except as heretofore
disclosed in writing to City, has theHealthcareGuarantor incurred any material liability, direct
or indirect, fixed or contingent; (g)after giving effect to this HCD Guaranty, theHealthcare
Guarantor is solvent, is not engaged or about to engage in business or a transaction for which the
property of the Healthcare Guarantor is an unreasonably small capital, and doesnot intend to
incur or believe that it will incur debts that will be beyond its ability to pay as such debts mature;
(h)the Healthcare Guarantor has read and fully understands the provisions contained in the DDA
and the Other Agreements.The Healthcare Guarantor’srepresentations, warranties and
covenants are a material inducement to City to approve the assignment of the DDA to the
HealthcareDeveloper, convey theHealthcareProperty and enter into the Other Agreements and
shall survive the execution hereof and any bankruptcy, foreclosure, transfer of security or other
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event affecting Healthcare Developer, Healthcare Guarantor,anyotherPerson, or any security
for all or any part of the Guaranteed Obligations.
Section 14.Notices.
All notices, requests, consents, demands and other communications required or which
any party desires to give hereunder or under the DDA shall be in writing and, unless otherwise
specifically provided in the DDA, shall be deemed sufficiently given or furnished if delivered by
personal delivery, by nationally recognized overnight courier service, or by certified United
States mail, postage prepaid, addressed to the party to whom directed at the addresses specified
in this HCD Guaranty (unless changed by similar notice in writing given by the particular party
whose address is to be changed) or by facsimile. Any such notice or communication shall be
deemed to have been given either at the time of personal delivery or, in the case of courier or
mail, as of the date of first attempted delivery atthe address and in the manner provided herein,
or, in the case of facsimile, upon receipt; provided that service of a notice required by any
applicable statute shall be considered complete when the requirements of that statute are met.
Notwithstanding the foregoing, no notice of change of address shall be effective except upon
actual receipt. This Section shall not be construed in any way to affect or impair any waiver of
notice or demand provided in this HCD Guaranty, the DDA or the Other Agreements or to
require giving of notice or demand to or upon any Person in any situation or for any reason.
Section 15.Cumulative Rights.
All of the rights and remedies of City under thisHCDGuaranty, the DDA and the Other
Agreements are cumulative of each other and of any and all other rights at law or in equity, and
the exercise by City of any one or more of such rights and remedies shall not preclude the
simultaneous or later exercise by City of any or all such other rights and remedies. No single or
partial exercise of any right or remedy shall exhaust it or preclude any other or further exercise
thereof, and every right and remedy may be exercised at any time and from time to time. No
failure by City to exercise, or delay in exercising, any right or remedy shall operate asa waiver
of such right or remedy or as a waiver of any Material Default. No notice to or demand on the
Healthcare Guarantor in any case shall of itself entitle theHealthcareGuarantor to any other or
further notice or demand in similar or other circumstances. No provision of this HCD Guaranty
or any right or remedy of City with respect hereto, or any default or breach, can be waived, nor
can this HCD Guaranty or theHealthcareGuarantor be released or discharged in any way or to
any extent, except specifically in each case by a writing intended for that purpose (and which
refers specifically to this HCD Guaranty) executed and delivered by City to theHealthcare
Guarantor.
Section 16.Subrogation; Expiration.
TheHealthcareGuarantor shall not have any right of subrogation under the DDA or the
Other Agreements or any right to participate in any security for the Guaranteed Obligations or
any right to reimbursement, exoneration, contribution, indemnification or any similar rights, until
the Guaranteed Obligations have been fully and finally discharged in accordance with
Section2.4above, and the Healthcare Guarantor hereby waives all of such rights. The
HealthcareGuarantor shall not exercise any rights that it may acquire by way of subrogation
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under thisHCDGuaranty, by virtue of any payment made hereunder or otherwise, until all the
Guaranteed Obligations have been paid or performed in full.The Guaranteed Obligations will
not be deemed to be “paid or performed in full” until the expiration of two years and one day
(without the filing of any bankruptcy, dissolution, reorganization, or insolvency proceedings by
or against either the Healthcare Guarantoror Healthcare Developer during such period) after
Expiration Date
such payment and/or performance(“”).Ifany amount is paid to Healthcare
Guarantor on account of such subrogation rights before the Guaranteed Obligations have been
paid or performed in full, the amount will be held in trust for the benefit of City and will
immediately be paid to City to be credited and applied upon the Guaranteed Obligations, whether
matured or unmatured, in such order as City, in its sole and absolute discretion, determines.
Until the Guaranteed Obligations are paid or performed in full, any indebtedness of Healthcare
Developer to the Healthcare Guarantor is hereby subordinated to all obligations and liabilities of
HealthcareDeveloper to City arising out of or related to the DDA.
Section 17.Time of Essence.
Time shall be of the essence in this HCD Guaranty with respect to all of the Healthcare
Guarantor’sobligations hereunder.
Section 18.Bankruptcyof Healthcare Developer
The obligations of the Healthcare Guarantor under this HCD Guaranty will continue to be
effective, or be automatically reinstated:(a)if the performance or the payment, in whole or in
part, of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned
by City (as a preference, fraudulent conveyance or otherwise) upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of City, theHealthcare Guarantor or any other Person,
or (b)upon or as a result of the appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to Healthcare Developer, the Healthcare Guarantor a or any other
Person, or any substantial part of its property, or otherwise, all as though such payments had not
been made. If Material Default has occurred and continues or exists and declaration of default or
acceleration under or with respect to the DDA or if any default occurs under this HCD Guaranty
or any of the Guaranteed Obligations at such time is prevented by reason of the pendency against
the Healthcare Guarantor or Healthcare Developer or any other Person of a case or proceeding
under a bankruptcy or insolvency law, the Healthcare Guarantor agrees that thisHCDGuaranty
and the Guaranteed Obligations will be deemed to have been declared in default or accelerated
with the same effect as if this HCD Guaranty and the Guaranteed Obligations had been declared
in defaultand accelerated in accordance with their respective terms. TheHealthcareGuarantor
will immediately perform or pay the Guaranteed Obligations as required under this HCD
Guaranty without further notice or demand.
Section 19.Entire Agreement; Counterparts; Construction.
ThisHCDGuaranty embodies the entire agreement between City and the Healthcare
Guarantor with respect to the guaranty by the Healthcare Guarantor of the Guaranteed
Obligations. ThisHCDGuaranty supersedes all prior agreements and understandings, if any,
with respect to the guaranty by the Healthcare Guarantor of the Guaranteed Obligations. This
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HCDGuaranty shall be effective upon execution by the Healthcare Guarantor and delivery to
City. ThisHCDGuaranty may not be modified, amended or superseded except in a writing
signed by City and the Healthcare Guarantor referencing thisHCDGuaranty by its date and
specifically identifying the portions hereof that are to be modified, amended or superseded. This
HCDGuaranty has been executed in a number of identical counterparts, each of which shall be
deemed an original for all purposes and all of which constitute, collectively, one agreement. As
used herein, the words “include”and “including”shall be interpreted as if followed by the words
“without limitation.”
\[Signatures appear on the following page\]
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IN WITNESS WHEREOF, the Healthcare Guarantor has duly executed this HCD
Guaranty as of the date first written above.
Address of Healthcare Guarantor
By:
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ATTACHMENT 15
CERTIFICATE OF COMPLIANCE
CITY OF TUSTIN OFFICIAL
BUSINESS REQUEST
DOCUMENT TO BE
RECORDED AND TO BE
EXEMPT FORM RECORDING
FEES PER GOVERNMENT
CODE §6103 AND §27383.
Recording requested by and
when recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
________________________________________________________________________
SPACE ABOVE THIS LINE FOR RECORDER'S USE
CERTIFICATE OF COMPLIANCE FOR
\[HEALTHCARE/RETAIL\]PARCEL
Certificateof Compliance
This CERTIFICATE OF COMPLIANCE ("") is made as of
_____________________, 20__ by the CITY OF TUSTIN, a municipal corporation of the State
CityDeveloper
of California (""), in favor of ______________________ (""), with reference to
the following matters:
Initial Developer
A.The City and 1C Tustin Legacy, LLC ("") entered into that
certain Tustin Legacy Disposition and Development Agreement for Disposition Parcel 1C, dated
DDA
as of ______________, 2015 (the "").
B.The DDA is evidenced by that certain Memorandum of Tustin Legacy
Memorandum of
Disposition and Development Agreement for Disposition Parcel 1C (the "
DDA
"), dated as of ____________ and recorded on that date in the Office of the County
Official Records
Recorder, Orange County, California (the "") as Instrument
No.__________________ with respect to certain real property legally described on Exhibit"A"
Development Parcels
attached hereto and incorporated herein by this reference (the "").All
initially capitalized terms not otherwise defined herein shall have the meanings assigned to them
in the DDA.
C.Pursuant to and as further described in the DDA, the Developer agreed to acquire,
develop and construct certain Improvements comprising the Project on the Development Parcels.
ATTACHMENT 15City of Tustin/Regency Centers DDA
Tustin Regency Att 15 (Cert Of Compl.) 9-1-15
Final.Docx
-1-September 29,2015
D.Pursuant to Section9 of the DDA, the City agreed to furnish to the Developer,
upon request therefor by the Developer, a Certificate of Completion in recordable form upon
satisfaction of the Conditions Precedent to issuance thereof set forth in \[Section9.2/9.3\]of the
DDA.
D.The City has determined that the Developer has satisfied the Conditions Precedent
set forth in \[Section9.2/9.3\]of the DDA for the City's issuance of a Certificate of Compliance
with respect to the \[Healthcare Parcel/Retail Parcel\] as legally described on Exhibit"B"
Certified Parcel
attached hereto and incorporated herein by this reference (the "").For
avoidance of doubt, this Certificate applies only with respect to the Certified Parcel, and does not
apply to the any other portion of the Development Parcels or any Improvements thereon.
NOW, THEREFORE, the City certifies as follows:
1.This Certificate of Compliance covers and applies to the Certified Parcel and that
portion of the Improvements and the {Retail/Healthcare}Project constructed thereon \[as
depicted and described on Exhibit"C"attached hereto and incorporated herein by this reference
Certified Improvements
(the "")\].
2.This Certificate of Compliance shall be deemed conclusive evidence of the City's
determination that the {Developer/Healthcare Developer} has satisfactorily Completed
construction and development with respect to the Improvements comprising the
{Retail/Healthcare}Project andhas satisfied all Conditions Precedent set forth in
\[Section9.2/9.3\]of the DDA for issuance of this Certificate of Compliance.
3.A Certificate of Compliance shall have the effects set forth in Section9of the
DDA and in other applicable provisions of the DDA with respect to the Certified Parcel {andthe
Certified Improvements thereon only}.
4.Upon recordation of this Certificate, the DDA shall terminate as to the Certified
Parcel and shall be of no further force and effect with respect to the Certified Parcel and any
Person then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the
Certified Parcel shall not (because of such ownership, purchase, lease or acquisition) incur any
obligation or liability under the DDA with respect to the Certified Parcel and/or the Certified
Improvements, except that the following recorded documents shall survive the termination of the
DDA, each in accordance with its terms, as to the Certified Improvements and the Certified
Parcel and all Persons owning, leasing or occupying the Certified Parcel and/or the Certified
Improvements shall continue to be bound by the following recorded documents, to the extent
provided for in such documents, which shall survive the termination of the DDA (each in
accordance with its terms), shall not merge with any deed on any transfer of any portion of the
Certified Parcel and shall survive the issuance of this Certificate of Compliance as and to the
extent indicated in the referenced documents:
(a)The Declaration of Special Restrictionsdated _________, 201_ and
recorded on ____________ 201_ in the Official Records as Instrument No. ______________;
(b)The Quitclaim Deed(s) dated __________, 201_ and recorded on
____________, 201__ in the Official Records as Instrument No. ______________;
ATTACHMENT 15City of Tustin/Regency Centers DDA
Tustin Regency Att 15 (Cert Of Compl.) 9-1-15
Final.Docx
-2-September 29,2015
(c)The provisions of Section9.7 of the DDA which, as set forth in the
Memorandum of DDA,expressly survive the termination of the DDA; and
(d)The Slope Parcel Easement and Landscape Installation and Maintenance
Agreement dated __________, 201_ and recorded on ____________, 201__ in the Official
Records as Instrument No. ______________;and
(e)The CC&Rs dated __________, 201_ and recorded on ____________,
201__ in the Official Records as Instrument No. ______________;
5.Notwithstanding any other provision of the DDA to the contrary or the issuance
orrecordation of this Certificate of Compliance and the termination of the DDA as to the
Certified Parcel as a result thereof, issuance of this Certificate of Compliance shall not waive any
rights or claim that the City may have against any Person or party for latent or patent defects in
design, construction or similar matters under any applicable law with respect to construction of
the Improvements, including without limitation, the Horizontal Improvements (whether located
on or off of the Certified Parcel), or any other rights or remedies of the City available at law or in
equity, nor shall it be evidence of satisfaction of any of the Developer's obligations to third
parties who are not a party to the DDA.
6.This Certificate of Compliance is not a Notice of Completion as referred to in
California Civil Code Section3093.
7.Except as stated herein, nothing contained in this instrument shall modify in any
Healthcare}
way any other provisions of the documents executed by the City and {Developer..
{remainder of pageis blank / signatures on following page}
ATTACHMENT 15City of Tustin/Regency Centers DDA
Tustin Regency Att 15 (Cert Of Compl.) 9-1-15
Final.Docx
-3-September 29,2015
IN WITNESS WHEREOF, the City has caused thisCertificate of Compliance to be duly
executed by its officer duly authorized as of the date first above written.
CITY OF TUSTIN:
Dated:
By:
Jeffrey C. Parker,
City Manager
APPROVED AS TO FORMATTEST:
By:By:
David Kendig,Erica Rabe
City AttorneyCity Clerk
Armbruster Goldsmith & Delvac LLP
SpecialTustin Counsel
By:
Amy E. Freilich
ACCEPTED AND AGREED:
DEVELOPER/HEALTHCARE
DEVELOPER:
ATTACHMENT 15City of Tustin/Regency Centers DDA
Tustin Regency Att 15 (Cert Of Compl.) 9-1-15
Final.Docx
-4-September 29,2015
EXHIBIT A
LEGAL DESCRIPTION OF DEVELOPMENT PARCELS
ATTACHMENT 15City of Tustin/Regency Centers DDA
Tustin Regency Att 15 (Cert Of Compl.) 9-1-15
Final.Docx
-5-September 29,2015
EXHIBIT B
LEGAL DESCRIPTION OF CERTIFIED PARCEL
ATTACHMENT 15City of Tustin/Regency Centers DDA
Tustin Regency Att 15 (Cert Of Compl.) 9-1-15
Final.Docx
-6-September 29,2015
EXHIBIT C
DESCRIPTION/DEPICTION OF COMPLETED IMPROVEMENTS
ATTACHMENT 15City of Tustin/Regency Centers DDA
Tustin Regency Att 15 (Cert Of Compl.) 9-1-15
Final.Docx
-7-September 29,2015
ATTACHMENT 16A
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
(FOR SECTIONS 2.2.2 and 2.2.3(a) TRANSFERS)
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT FROM
RECORDING FEES PER
GOVERNMENTCODE 6103 AND 27383.
Recording requested by and
when recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Parcel 1CTustin Legacy)
Assignment
This ASSIGNMENT AND ASSUMPTION AGREEMENT (“”) is made as
Assignment Effective Date
of __________,20__ (the “”) by and between 1C Tustin Legacy,
Developer
LLC,a Delaware limited liability company (“”),and _________________, a
Transferee\[{to be inserted only in connection with a
_________________________(“”),
Transfer that is not a Permitted Transfer:}
with the consent of the CITY OF TUSTIN, a
City
municipal corporation of the State of California (the “”)\],with reference to the following
matters:
A.The City and Developer entered into that certain Tustin Legacy Disposition and
DDA
Development Agreement for Parcel 1Cdated as of _____________, 2015(the “”), relating
to the conveyance from the City to Developer of that certain real property legally described on
Development Parcels
Exhibit“A”attached hereto (the “”) and the subsequent development of
the Development Parcels by Developer, all as more particularly set forth in the DDA. All
initially capitalized terms not otherwise defined in this Assignment shall have the meanings
ascribed to such terms in the DDA.Developer and the City executed that certain Memorandum
Memorandum of
of Tustin Legacy Disposition and DevelopmentAgreement (Parcel 1C)(the “
DDA
”),dated _____________,which was recorded in the Office of the County Recorder,
Official Records
Orange County, California (the “”) against title to the Development Parcels on
_________________as Instrument No.__________, and provided record notice of the DDA.
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-1-September 29, 2015
(Agd)(2).Docx
B.The City has executed that certain Declarationof Special Restrictions for Parcel
Special Restrictions
1C(the “”), dated _____________, thatwas recordedin the Official
Recordsagainst title to the Development Parcels on _____________as Instrument No.
__________,which includes, among other matters, certain requirements regarding the use and
maintenance of the Development Parcels and sets forth those provisions of the DDA that survive
the issuance of a Certificate of Compliance with respect to the Project.
C.The City has executed that certain Quitclaim Deed for Disposition Parcel 1Cand
Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant toCivil
Quitclaim Deed
Code Section1471(the “”), dated _____________,which was recorded in the
Official Records against title to the Development Parcels on _____________as Instrument No.
__________,which Quitclaim Deed conveyed to Developer the fee title to the Development
Parcels, subject to certain restrictions and limitations set forth in the Quitclaim Deed.
D.Developer and the City executed that certain Development Agreement
DA
(the“”), dated _______________,which was recorded in the Official Records against title to
the Development Parcels on __________________as Instrument No._______________.
E.Developer and the City executed that certain Slope Parcel Easement and
Slope Agreement
Landscape Installation and Maintenance Agreement (the“”), dated
_______________, which was recorded in the Official Records against title to the Development
Parcels on __________________as Instrument No. _______________.
F.The DDA, the Memorandum of DDA, the Special Restrictions, the DA,the
Quitclaim Deed,the Slope Agreementand the CC&Rs,in each case including all Exhibits and
attachments thereto and in each case includingall amendments to any of the foregoing through
Property Documents
the Assignment Effective Date,are collectively referred to herein as the “”.
G.Pursuant to the DDA, Developer agreed to develop and construct on the
DevelopmentParcels certain Improvements comprising the Project.
H.Concurrently with the execution and delivery of this Assignment, Developer is
conveying to Transferee thatportion of the Propertycomprised of that certain real property
legally described on Exhibit”B”attached hereto, including all Improvements, if any, located
thereon,all appurtenances pertaining thereto and all permits, licenses, approvals and
authorizations issued by any Governmental Authority in connection therewith, for purposes of
constructionand operation by Transferee of the Projectand other Transferee Improvements
Transfer Property
(defined below) on the Transfer Property,the (“”), and for sale of same, and
Transferee will develop the Transfer Propertyin accordance with the requirements of the DDA,
including, without limitation, the Scope of Development and the Schedule of Performance, and
the other Property Documents.
I.The DDA imposes certain covenants, conditions, payment obligations and
restrictions on the Development Parcels and, priorto the filing of a Certificate of Completion,
the DDA restricts Developer's ability to transfer ownership and/or control of the Development
Parcels, the Project, the Improvements and/or Developer's obligations with respect to the Project
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-2-September 29, 2015
(Agd)(2).Docx
(including, without limitation, Developer's obligations with respect to the off-site infrastructure
improvements), all as set forth in the DDA.
J.Developer desires to convey the Transfer Propertyto Transferee and to assign to
Transfereeallof Developer'sright, title and interest in and to the Property Documents with
Transfer Event\[{to be inserted only in connection with
respect to the Transfer Property(the “”)
a Transfer that is not a Permitted Transfer:}
to have such assignment approved by the City, and
to have Transferee approved by the City as a “Transferee”(as that term is defined in and used
in Section2of the DDA)\].Pursuant to Section2of the DDA (including without limitation,
Section 2.2.3(a) of the DDA with respect to a transfer of a transferor’s entire interest) a Transfer
must include, among other things, the execution and delivery of anAssignmentand Assumption
Agreement. Developer and Transferee are entering into this Assignment in order to fulfillthe
obligations of Developer and Transferee as a Transferee under Section2of the DDA.
Simultaneously with this Transfer Event, Transferee will be acquiring the Transfer
Propertyfrom Developer pursuant to and in accordance with the terms of the DDA.
NOW, THEREFORE, for good and valuable consideration, Developer and Transferee
agree as follows:
Assignment.
1.
1.1As of the Assignment Effective Date, Developer hereby assigns, conveys,
transfers, bargains, grants, sells and sets over to Transferee, as and to the extent owned or held
Assigned Interests
by Developer, the following (collectively, the “”):
(a)All right, title and interest of “Developer”under the Property Documents.
(b)Thoserightsand obligationsof Developer as the “Developer”under the
Property Documents including,without limitation,(i)the obligation to construct and
Complete the Minimum Horizontal Improvements and other Improvements on the
Transfer Propertywhen and as required by the Property Documents,(ii)the obligation to
maintainthe Improvements located on the Transfer Property, and (iii)any and all
additional corresponding rights,obligations,conditions, limitations and restrictionsunder
the Property Documents imposed upon or with respect tothe Transfer Property(and all
Improvements thereon)arising from and after the Assignment Effective Date, including,
without limitation, the rights, obligations, conditions, limitations, releases, indemnities
and restrictions contained within the followingprovisions of the DDA:
(i)Sections2.1 through 2.4, inclusive;
(ii)Sections 4.5.1 and 4.5.2, including without limitation the release
set forth in Section4.5.2(f);
(iii)Sections 5.1 through 5.7 and 6.1 through 6.4, inclusive;
(iv)Sections 8.1 through 8.12, inclusive;
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-3-September 29, 2015
(Agd)(2).Docx
(v)Sections 9.1 through 9.7, inclusive;
(vi)Sections10.1 through 10.7, inclusive;
(vii)Sections 11.1 through 11.2, inclusive,and
(viii)Sections 12.1 through 12.8,inclusive.
(c)All Entitlements and Development Permits and other development rights
relating to the Transfer Property.
(d)The obligations retained by the Developer with respect to the construction
and Completion of the Minimum Horizontal Improvements on the Transfer Propertyand
the construction of the work described in the Slope Agreement,which Transferee shall be
obligated to carry out in a timely manner in accordance with the Schedule of Performance
in the DDA;
(e)All plans, specifications, maps, drawings, and other renderings owned by
Developer and relating to the Transfer Property,the Projectandthe Entitlements
pertaining thereto;{and}
(f)All warranties, claims, and any similarrights of Developer relating to and
benefiting the Transfer Propertyor the rights and interests transferred pursuant to this
Assignment;and
(g)all development rights relating to the Transfer Parcel\[.\] or \[;and\]
\[{include only if Transfer Parcel comprises all of the Development
(h)
Parcels}
all intangible rights, goodwill, and similar rights relating to the Project and/or
the Transfer Parcel; and\]
{Insert any additional specific rights or obligations being assigned or
(i)
assumed by the Transferee.The assignment should generally be limited to those
matters related to development construction, maintenance of the Projectand the
Transfer Property.}
1.2The Assigned Interests together with the Transfer Propertyare collectively
Assigned Property
referred to in this Assignment as the “.”
Assumption.
2.
2.1Transferee, on behalf of itself and its successors and assigns, from and after the
Assignment Effective Date, hereby assumes and receives the Assigned Property and Transferee
agrees with Developer (and such agreement is expressly also made for the benefit of the City and
may be directly enforced by the City) as follows, in each case, to the extent relating to the period
{NOTE: the following to be revised as
from and after the Assignment Effective Date
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-4-September 29, 2015
(Agd)(2).Docx
appropriate if Minimum Horizontal Improvements or other obligations of Developeror
Healthcare Developerunder the DDA have been completed}:
(a)Transferee accepts and expressly assumes all of the Assigned Property and
all of the obligations, conditions, limitations and restrictions imposed upon the Transfer
Propertyand/or the Developer with respect to the Transfer Propertyunder the Property
Documents, andTransferee expressly assumes and shall be subject to all the obligations,
conditions, limitations and restrictions to which Developer and/or the Transfer Propertyis
subject under or by reason of the Property Documents.
(b)Transferee expressly assumes and shall be subject to all the obligations,
conditions, limitations and restrictions to which Developer and/or the Assigned Property
are subject by reason of the Entitlements related to the Transfer Property;
(c)Upon and subject to the terms and provisions of the Property Documents,
Transferee expressly assumes and shall be subject to all the obligations to perform,
construct and/or install any and all of the Improvements, specifically includingwithout
limitation, the Minimum Horizontal Improvements located onor affecting the Transfer
{and: Insert any additional assumed construction obligations}
Property(collectively,
Transferee Improvements
the “”) in accordance with the Scope of Development and
within the time periodsspecified in the Schedule of Performance.
(d)Upon and subject to the terms and provisions of the Property Documents,
Transferee shall pay and perform all obligations of Developer set forth in the Property
Documents that relate to the Assigned Property, including, without limitation, the
following obligations: (i) the obligation to construct allImprovements to be constructed
on the Transfer Propertyin accordance with the Scope of Development and within the
time periodsspecified in the Schedule of Performance; (ii)the obligation to pay all sums
required to be paid by Developer under the Property Documents in connection with the
ownership and/or development of the Assigned Property, to the extent such amounts have
not been paid as of the Assignment Effective Date;(iii)the obligation to developthe
Transfer Propertyin full compliance with allthen-existing Entitlements and the
Approved Plans; (iv)as a condition precedent to this Assignment, the obligation of the
Controlling Person of the Transferee to deliver to the City a Guaranty(or if such
Controlling Person is not approved by the City as the Guarantor,another Person approved
by the City in its sole discretion as the Guarantor in accordance with Section4.6 of the
DDA).
(e)For the avoidance of doubt, upon the execution and delivery of this
Assignment, Transferee shall be deemed to have assumed and shall be obligated to
comply with and perform: (i)all obligations of Developer under this Agreement and the
Property Documents, (ii)all obligations of Developer under the Property Documents with
respect to the Transfer Property,and the Improvements thereon.
(f){Insert any additional obligations to be assumed by Transferee.}
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-5-September 29, 2015
(Agd)(2).Docx
2.2For avoidance of doubt, and without limiting the generality of the foregoing,
Transferee hereby agrees: (a) thatTransfereehashereby assumed and shall be subject to and
obligated to performin accordance withor otherwise comply with the requirements of the DDA,
including without limitation, the following:(i)the restrictions on Mortgages;(ii)the rights and
remedies of Transferor of the Transfer Propertyset forth in Sections14.2.6;(iii)the Transfer and
Transfer of Control restrictionsset forth inSections2.1 through 2.4, inclusive;
(iv)Sections4.5.1 and4.5.2(inclusive) including, without limitation,the release set forth in
Section 4.5.2 (f);(v)the indemnities and other requirements of Sections10.1 through 10.7,
inclusive;and (vi)the covenants and use restrictions set forth in Sections12.1 through 12.8,
inclusive;and (b)that it shallbe subject to all rights and remedies of the City under the Property
Documents, including without limitation, the Right of Repurchase and the Right of Reversionset
forth in the DDA.
2.3Transferee shall remain fully responsible to perform and satisfy all of the
obligations and liabilities assumed by Transferee pursuant to Section2.1and 2.2above
regardless of any of the following:
(a)the value of the Assigned Property or the income to be derived from the
Assigned Property;
(b)the existence or non-existence of any liens, easements, covenants,
conditions, restrictions, claims or encumbrances affecting the Assigned Property
(including without limitation any of the foregoing arising from or related to the
Entitlements or any of the Property Documents);
(c)the suitability of the Assigned Property for any and all future
development, uses and activities which Transferee or Developer may conduct thereon,
including, without limitation,the development of the Project as described in the Property
Documentsand this Assignment;
(d)the ability of the City or any third party to complete, or likelihood of the
completion of, any of the improvements and infrastructure described by the General Plan,
the Reuse Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program or
any other plan or policy of the City or any other Governmental Authorities;
(e)the compliance by the City or any third party with respect to the Reuse
Plan, the General Plan, the Specific Plan, the Special Restrictions, the CC&Rs,the Tustin
LegacyBackbone Infrastructure Programor any other agreement or governmental
restriction or planaffecting Tustin Legacyby the City or any third party;
(f)the habitability, merchantability or fitness for a particular purpose of the
Assigned Property;
(g)the manner, quality, state of repair or lack of repair of the Assigned
Property;
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-6-September 29, 2015
(Agd)(2).Docx
(h)the nature, quality or condition of the Assigned Propertyincluding without
limitation, water, soil and geology;
(i)the compliance of or by the Assigned Property and/or its operation in
accordance with any of the Entitlements or any Governmental Requirements,including
without limitation, the National Environmental Policy Act, CEQA and the Americans
with Disabilities Act of 1990;
(j)the manner or quality of the construction or materials, if any, incorporated
into any part of the Transfer Propertyor the Improvements;
(k)the presence or absence of Hazardous Materials, including without
limitation, asbestos or lead paint at, on, under, or adjacent to the Transfer Propertyor any
other portion of the Development Parcels or Tustin Legacy;
(l)the content, completeness or accuracy of the information, documentation,
studies, reports, surveys and other materials, delivered to Transferee by Developer or
others in connection with Transferee's review of the Assigned Property and the
transactions contemplated in the Property Documentsor this Assignment;
(m)the conformity of the existing improvements on the Transfer Property,the
Development Parcels and/or at Tustin Legacy,if any, to any plans or specifications
therefor;
(n)compliance of the Assigned Property with past, current or future
Governmental Requirements relating to zoning, subdivision, planning, building, fire,
safety, health or environmental mattersand/or covenants, conditions, restrictions or deed
restrictions;
(o)the deficiency of any undershoring or of any drainage to, on or from the
Transfer Propertyor any other portion of Tustin Legacy;
(p)the condition of any adjoining land owned by the City, including without
limitation the Slope Parcel and any improvements thereon;
(q)the fact that all or a portion of the Transfer Propertymay be located on or
near an earthquake fault line or falls within an earthquake fault zone established under the
Alquist-Priolo Earthquake Zone Act, California Public Resources Code sections2621-
2630 or within a seismic hazard zone established under the Seismic Hazards Mapping
Act, California Public Resources Code sections2690-2699.6 and sections3720-3725;
(r)the existence or lack of vested land use, zoning or building entitlements
affecting the AssignedProperty;
(s)the construction or lack of construction of Tustin Legacy or if constructed,
the construction of Tustin Legacy in accordance with design guidelines, plans and
specifications previously or to be prepared therefor;
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-7-September 29, 2015
(Agd)(2).Docx
(t)the conditions, covenants and restrictions imposed or to be imposed upon
the Assigned Property or any portion thereof under the Property Documents or the
Entitlements;
(u)the contents of the Memorandum of Agreement, the Federal Deed, the
Base Closure Law and the FOST; and
(v)any other matters.
Release and Continuing Liabilityunder the DDA
3..
\[{Delete (not applicable) for Transfer to Permitted Transferee/:Delete (not applicable)
if terms of Section 2.2.3(iv) for release of Developer are not met }
Asof the Assignment
Effective Date, Developer shall be released from all obligations under the Property Documents
with respect to the Transfer Property,the construction and Completion of the Vertical
Improvements,and the other obligations expressly assumed by the Transferee hereunder;
provided, however, thatnotwithstanding the assignment in Section1of this Assignment, the
assumption in Section2of this Assignment,and the City's consent attached to this Assignment,
Developer shall not be released from the obligations identified in Section 2.2.3(a)(iv) of the
DDA.\]
Indemnity.
4.
Transferee shall indemnify, protect, defend, assume all responsibility for and hold
harmless Developer and its members, officers, agents, affiliates, employees, contractors,
DeveloperIndemnified
consultants, and representatives (collectively referred to as the “
Parties
”) with counsel reasonably acceptable to Developer, from and against any and all Claims
arising from or relating to Transferees' failure to perform its obligations under, or otherwise
comply with, the DDA, any of the Property Documents, or this Assignment.
No Waiver or Modification.
5.
Nothing contained in this Assignment shall modify in any way any other provisions of
the Property Documents and/or the Entitlements. Transferee acknowledges that it is taking title
to and is assuming the Assigned Property subject to, among other things, the rights of the City
and Developer as described in the Property Documents.
Additional Documents.
6.
Developer and Transferee shall each execute and deliver to the other party, upon demand,
such further documents, instruments and conveyances, and shall take such further actions as are
necessary or desirable to effectuate the intent and purposes of this Assignment.
Representations and Warranties ofTransferee.
7.
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-8-September 29, 2015
(Agd)(2).Docx
As an inducement to the City to consent to this Assignment and to perform its obligations
under the DDA for the benefit of Transferee, Transferee represents and warrants to the City as
follows:
7.1Transferee has the necessary expertise, experience, financial experience and
qualifications and legal status necessary to perform as Transferee pursuant to this Assignment
and the Property Documents to construct and complete the Project, and, without limiting the
foregoing, Transferee is experienced in the development, management, and leasing of
commercial projects of the size and type described in this Assignmentand the Property
Documentsand understands the process and requirements associated with projects such as the
Project described herein.
7.2Transferee's acquisition of the Property, development of the Project and its other
undertakings pursuant to this Assignmentand the Property Documents are for the purpose of
timely development of the Development Parcels in accordance with the Schedule of Performance
attached to the DDA and not for speculation or land holding.
7.3Transferee is a \[_____________\]\[company\], duly organized, and validly existing
and in good standing under the laws of the State of ____________,\]is duly qualified to do
business and in good standing in the State of California andeach other jurisdiction where the
operation of its business or its ownership of property or the performance of Transferee's
obligations under this Assignmentand the Property Documents make such qualification
necessary.
7.4Transferee has (or will have prior to the date by which a particular step is required
to be taken or performance of a particular obligation is required to be commenced pursuant to
this Assignmentor any of the Property Documents) all requisite power and authority required to
enter into this Assignmentand the instruments referenced in this Assignmentand the Property
Documents,to assume and perform the obligations of Developer under the Property Documents,
to consummate the transaction contemplated hereby and to take any steps contemplated thereby
or hereby, and to perform its obligations hereunder and thereunder.
7.5Transferee has obtained (or will have obtained prior to the date by which a
particular step is required to be taken or performance of a particular obligation is required to be
commenced pursuant tothis Assignmentor anyProperty Documents) all required consents in
connection with entering into this Assignmentand the instruments and documents referenced in
this Assignmentand the Property Documents, assuming and performing the obligations of
Developer under the Property Documents to which Transferee is or shall be a party and the
consummation of the transactions contemplated herebyand thereby.
7.6The individuals executing this Assignmentand the individuals that will execute
the instruments referencedin this Assignmentand the Property Documents on behalf of
Transferee have, or will have upon execution thereof, the legal power, right and actual authority
to bind Transferee to the terms and conditions hereof and thereof.
7.7This Agreement has been duly authorized, executed and delivered by Transferee
and all documents required in this Assignmentor the Property Documents to be executed by
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
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(Agd)(2).Docx
Transferee pursuant to this Assignmentor the Property Documentsshall be, at such time as they
are required to be executed by Transferee, duly authorized, executed and delivered by Transferee
and are or shall be, at such time as the same are required to be executed hereunder, valid, legally
binding obligations of and enforceable against Transferee in accordance with theirterms, except
as enforceability may be limited by bankruptcy laws or other similar laws affecting creditors'
rights.
7.8Neither the execution or delivery of this Assignment,the documents referenced in
this Assignmentor the Property Documents, nor the incurring of the obligations set forth in this
Assignmentor the Property Documents and the certificates, declarations and other documents
referenced in this Assignmentand the Property Documents, nor the consummation of the
transactions contemplated in this Assignmentor the Property Documents, nor compliance with
the terms of this Assignmentand the documents referenced in this Assignmentor the Property
Documents, will violate any provision of law or any order of any court or Governmental
Authority to which Transferee is subject or conflict with or result in the breach of any terms,
conditions, or provisions of, or constitute a default under any bond, note, or other evidence of
indebtedness or any contract, indenture, mortgage, deed of trust, loan partnership agreement,
lease or other agreements or instruments to which Transferee or any of its members are a party
and which affect the Property or the transactions contemplated by this Assignmentor the
Property Documents.
7.9No attachments, execution proceedings, assignments of benefit to creditors,
bankruptcy, reorganization or other proceedings are pending or, to the best of Transferee's
knowledge, threatened against Transferee or its members.
7.10Transferee is relying solely upon its own inspections andinvestigations in
proceeding with this Assignmentand the assumption of the Property Documents and the
transactions contemplated herebyand thereby, and is not relying on the accuracy or reliability of
any information provided to it by the City, on any oral or written representation or on the non-
disclosure of any facts or conclusions of law made by the City, or any of its elected and
appointed officials, officials, employees, agents, attorneys or representatives made in connection
with this Assignmentor the Property Documents. In making such investigation and assessment,
Transferee has been provided access to any persons, records or other sources of information
which it has deemed appropriate to review and it has thereafter completed such investigation and
assessment. Without limiting the generality of the foregoing provisions, Transferee
acknowledges that the City has not made and will not make any representations or warranties
concerning the condition of the Property, the compliance or non-compliance of the Property or
any portion thereof with Environmental Laws or the existence or non-existence of Hazardous
Materials in relation to the Property or any portion thereof or otherwise.
7.11To Transferee's knowledge, except as described on Attachment4, there are no
adverse conditions or circumstances, no pending or threatened litigation, governmental action, or
other condition which could prevent or materially impair Transferee's ability to develop the
Transfer Propertyand the Project as contemplated by the terms of this Assignmentand the
Property Documents.
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-10-September 29, 2015
(Agd)(2).Docx
7.12Except as set forth in this Assignmentand the Property Documents, Transferee
has not paid or given, and will not pay or give, any third Person any money or other
consideration for obtaining this Assignment, other than the normal cost of conducting business
and cost of professional services such as architects, engineers and attorneys.
7.13All reports, documents, instruments, information and forms of evidence delivered
by Transferee to the City concerning or related to this Assignmentand the Property Documents
and the transactions contemplated hereby and thereby are, to the best of Transferee's knowledge,
accurate and correct and sufficiently complete at the time of submission to give the City true and
accurate knowledge of the subject matter, and do not contain any misrepresentation or omission.
7.14Prior to the Assignment Effective Date, Transferee has delivered evidence of
equity capital and financial capacity to comply with the obligations of Transferee under this
Assignmentand the Property Documents required to be satisfied under the DDA \[in the form of
the information specified in Section 2.2.3(a)(ii) of the DDA and including an Equity Funding
Financial Information
Letterif required by the DDA}\](“”).The Financial Information is in full
force and effect, remains true and correct as of the Assignment Effective Dateand has not been
amended or modified. Based onthe Financial Information, Transferee has, as of the Assignment
Effective Date, the equity capital and financial capacity, to comp.ly with the obligations of
Transferee under this Assignmentand the Property Documents required to be satisfied under the
DDA
7.15Prior to the Assignment Effective Date, Developer andTransferee, as the
proposedDeveloper,have executed and delivered that certain ____________,dated
PSA
______________, 20__(the “”), a copy of which has been delivered by Developer to the
City. The PSA: (a) is in full force and effect and has not been amended or modified,and (b) will
not be modified, amended or terminated by Developer or Transferee without the prior consent of
Cityin its sole discretion.Upon satisfaction of the conditions precedent set forth in Section7.2.1
of the DDA and without any other requirement or condition pursuant to the terms of the PSA or
any other agreement entered into by Transferee and Developer,as of the Close of Escrow,
Developershall be obligated to sell to Transferee, and Transferee has agreed to acquire, all right,
title and interest ofDeveloper under the DDA and the other Property Documents with respect to
\[{insert if Property previously conveyed by
the Transfer Propertyand the development thereof
the City to Developer:}
,includingthe Property\],and to assume and comply with the obligations
of Developer and other obligations of Developer under this Assignmentand the Property
Documents(including, without limitation,execution of the Guaranty required to comply with the
terms of this Assignmentand the Property Documents) required to be satisfied with respect to
the Transferee and/or the Transfer Property, whether prior to or following the Close of Escrow.
Transfereeacknowledges that, notwithstanding the execution by Transferee and Developer of the
PSA, the City has the right, in its sole discretion to approve and/or disapprove Transferee as
Developer, the PSA and any future agreements with Transferee, as further set forth in
Section2.2.3(b)and/or Section4.6of the DDA, as applicable.
7.16Transferee does not have any contingent obligations or any other contracts the
performance or nonperformance of which could affect the ability of Transferee to carry out its
obligations hereunder. Transferee has not and shall not undertake suchadditional projects as
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-11-September 29, 2015
(Agd)(2).Docx
could reasonably be expected to jeopardize the sufficiency of such equity, capital and firm and
binding commitments for the purposes expressed in the preceding sentence.
7.17\[Except as set forth in Exhibit ___,there/ There\]are no legal proceedings either
pending or, to the best of Transferee's knowledge, threatened, to which Transferee is or may be
made a party, or to which any of Transferee's property, or the Transfer Property, is or may
become subject, which could materially affect the ability of Transferee to carry out its
obligations hereunder.
Transferee's representations and warranties set forth in this Section8shall be deemed to be
restated at eachClose of Escrow, and shall survive eachClose of Escrow until the termination of
the DDA with respect to the Transfer Propertyand shall not be merged with any Quitclaim Deed.
to Transferee's knowledge
The phrase“”and similar phrases means those Persons Transferee
represents as having knowledge of the transactions and Transferee and accepted by the City,
\[ADD NAMES\]
comprised of in each case without any duty of inquiry (collectively, the
TransfereeKnowledge Parties
“”). Notwithstanding anything to the contrary contained herein,
noneof the Transferee Knowledge Parties shall be personally liable for any inaccuracy or breach
by Transferee of the representations and warranties contained in this Section8or elsewhere in
this Assignmentor the Property Documents.Transferee shall promptly advise the City in
writing if any of the TransfereeKnowledge Parties becomes aware (without any duty of inquiry)
that any representation or warranty made by Transferee in or pursuant to this Assignment the
DDAis or becomes untrue in any material respect prior to each Close of Escrow.
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-12-September 29, 2015
(Agd)(2).Docx
No Real Estate Commissions.
8.
Developer and Transferee each represents for the benefit of the City that it has engaged
no broker, agent or finder in connection with this Assignment or the transactions identified in
this Assignmentor the Property Documents, other than disclosed to City in writing prior to the
Effective Date. Developer and Transferee hereby agrees to indemnify and hold the City and its
elected and appointed officials, employees and representatives harmless from any losses and
liabilities arising from or inany way related to any claim by any broker, agent, or finder retained
by Developer and/or Transferee regarding this Assignment, the Property Documentsor
development of the Project or the transactions identified in this Assignment and theProperty
Document.
Miscellaneous.
9.
9.1Modification. No amendment, change, modification or supplement to this
Assignment shall be valid and binding on Developer or Transferee unless it is represented in
\[{To be inserted only in connection with
writing and signed by both Developer and Transferee.
a Transfer that is not a Permitted Transfer:}
and with the written consent of the City thereto.\]
No amendment, change, modification or supplement to this Assignment shall be deemed to be
part of the consent or deemed to be consented to by the City, unless the City executes a separate
written consent to such amendment, change, modification or supplement.
9.2Applicable Law. This Assignment shall be governed by, interpreted under,
construed and enforced in accordance with the laws of theState of California, irrespective of
California's choice-of-law principles.
9.3Binding Effect. This Assignment and the terms, provisions, promises, covenants
and conditions hereof shall be binding upon and inure to the benefit of Developer and Transferee
and their respective heirs, legal representatives, successors and assigns.
9.4Counterparts. This Assignment may be executed in two or more separate
counterparts, each of which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This
Assignment shall not be effective until the execution and delivery by Developer and Transferee
\[{to be inserted only in connection with a Transfer that is not
of at least one set of counterparts
a Permitted Transfer:}
(together with an executed counterpart of the City's consent attached to
this Assignment)\].A counterpart of this Assignment that is executed and delivered electronically
(by facsimile machine or email) shall not be effective unless an ink-signed original executed
copy of the signature page of this Assignment is also promptly delivered to the other party, and
such ink-signed original executed page is actually received by the other party. Developer and
Transferee hereby authorize each other to detach and combine original signature pages and
notarial acknowledgements and consolidate them into a single identical original. Any one of
such completely executed counterparts shall be sufficient proof of this Assignment as a duly and
validly executed agreement.
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-13-September 29, 2015
(Agd)(2).Docx
9.5City as Third Party Beneficiary. Developer and Transferee hereby acknowledge
and agree that until the Certificate of Compliance is recorded in the Official Recordswith respect
to the Transfer Property, the City shall be an intended third party beneficiary under this
Assignment and the City shall have the right to enforce the terms and provisions of this
Assignment applicable to the City. Other than the City, there shall be no third party beneficiaries
of this Assignment.
9.6Notices. From and after the Amendment Effective Date, all notices that the City
delivers to the “Developer”under the Property Documents and/or the Entitlements with respect
to the Transfer Propertyshall also concurrently be delivered to Transferee pursuant to
Section17.6of the DDA, shall be delivered to Transferee onlyat the following addresses:
Transferee:
\[_________\]
_______________________
_______________________
_______________________
with a copy to:
\[legal counsel\]
_______________________
_______________________
_______________________\]
\[signature page follows\]
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-14-September 29, 2015
(Agd)(2).Docx
Developer and Transferee each has caused this Assignment to be duly executed by its
duly authorized officer as of the Assignment Effective Date.
“DEVELOPER”
By: ________________________
Name: ______________________
Title: ________________________
Dated: __________________
“TRANSFEREE”
\[_____________\],
a _______________________________
By:
Dated: __________________
Name:
Title:
By:
Name:
Title:
{City consent on next page}
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-15-September 29, 2015
(Agd)(2).Docx
\[THE FOLLOWING ACKNOWLEDGEMENT ISTO BE INSERTED ONLY IN
CONNECTION WITH A TRANSFER THAT IS NOT APERMITTED TRANSFER\]
ACKNOWLEDGMENT AND CONSENT BY CITY OF TUSTIN
By executing in the space set forth below, the City of Tustin hereby:
(a)Acknowledges receipt of the Assignment and Assumption Agreement
Assignment
(the””) to which this Consent is attached;
(b)Consents to the making of the Assignment between Developer and
Transferee,subject to the terms and conditions set forth in the Assignmentand this
Acknowledgement and Consent by City of Tustin;
\[insert name of Transferee\], a _____________________\]
(c)Agrees that
(the assignee in the Assignment) shall be deemed by the City to be the“Developer”under the
DDA with respecttothe Transfer Property, from and after the Assignment Effective Date;
(d)Acknowledges the additional addresses for Notices for Transferee set forth
in the Assignment and agrees that from and after the Assignment Effective Date all notices from
City to Developer under the PropertyDocuments and the Entitlements with respect to the
Transfer Propertyshall also be delivered to Transferee at such addresses.
(e)This Consent by the City constitutes the consent required pursuant to
Section2.(a)of the DDA with respect to Transfer to a Transferee and constitutes the City's
acknowledgment that the requirements of Section2.2.3(a)have been satisfiedwith respect to the
Transfer described in this Assignment;
\[{Delete (not applicable) for Transfer to Permitted Transferee/:Delete
(f)
(not applicable) if terms of Section 2.2.3(iv)for release of Developer are not met }
Transferor is
released from the obligations of Developer under the DDA and theProperty Documents;
provided that, notwithstanding the foregoing or the assumption of obligations byTransferee:
(1)Developer shall not be relieved of any of its other
obligations under the DDA or the Property Documents and specifically, and without limitation
shall not be relieved or released from the Ongoing Matters and/or, in its capacity as Healthcare
Property Transferor, from the Healthcare Transferor Obligations;
(2)the Healthcare Transferor Obligations shall remain
the obligations of Transferor and each Successor Owner of the Retail Parcels that is not an End
User unlessand untilsuch Person is expressly released in writing by the City;and
(3)nothing in this paragraph (f) shall limit Developer's
liability during any applicable Additional Liability Period.
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-16-September 29, 2015
(Agd)(2).Docx
(g)This Consent by the City to the Assignment shall not constitute evidence
of compliance with or satisfaction of any obligation of Developerunder any of the Property
Documents, or any other agreement between Developer and the City, except for the obligation of
Developer to obtain the City's consent to any Transfer.
CITY:
CITY OF TUSTIN
Dated: ______________, 20____
By:
Jeffrey C. Parker
City Manager
ATTEST:
By:
Erica N. Rabe
City Clerk
APPROVED AS TO FORM:
By:
David Kendig, City Attorney
Special Counsel to the City
Armbruster Goldsmith & Delvac LLP
By:
Amy E. Freilich
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-17-September 29, 2015
(Agd)(2).Docx
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-18-September 29, 2015
(Agd)(2).Docx
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged tome that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-19-September 29, 2015
(Agd)(2).Docx
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California)
County of ______________________)
On _________________________,before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-20-September 29, 2015
(Agd)(2).Docx
EXHIBIT “A”
Legal Description of the Development Parcels
\[Insert Legal Description\]
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ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-21-September 29, 2015
(Agd)(2).Docx
EXHIBIT “B”
Legal Description of the Transfer Property
\[Insert Legal Description of Transfer Property\]
Tustin Regency
ATTACHMENT 16ACity of Tustin/Regency Centers DDA
DDA_Attachment_16A_Assignment 9-29-15
-22-September 29, 2015
(Agd)(2).Docx
ATTACHMENT 16B
FORM OF HCD ASSIGNMENT AND ASSUMPTION AGREEMENT
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT FROM
RECORDING FEES PER
GOVERNMENTCODE 6103 AND 27383.
Recording requested by and
when recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
SPACE ABOVE THIS LINE FOR RECORDER'S USE
HCDASSIGNMENT AND ASSUMPTION AGREEMENT
(Parcel 1CTustin Legacy)
Assignment
This HCDASSIGNMENT AND ASSUMPTION AGREEMENT (“”) is
Assignment Effective Date
made as of __________,20__ (the “”) by and between 1C Tustin
Developer
Legacy, LLC,a Delaware limited liability company (“”),and _________________, a
Transferee
_________________________(“”),with the consent of the CITY OF TUSTIN, a
City
municipal corporation of the State of California (the “”),with reference to the following
matters:
A.The City and Developer entered into that certain Tustin Legacy Disposition and
DDA
Development Agreement for Parcel 1Cdated as of _____________, 2015(the “”), relating
to the conveyance from the City to Developer of that certain real property legally described on
Development Parcels
Exhibit“A”attached hereto (the “”) andthe subsequent development of
the Development Parcels by Developer, all as more particularly set forth in the DDA. All
initially capitalized terms not otherwise defined in this Assignment shall have the meanings
ascribed to such terms in the DDA.Developer and the City executed that certain Memorandum
Memorandum of
of Tustin Legacy Disposition and DevelopmentAgreement (Parcel 1C)(the “
DDA
”), dated _____________,which was recorded in the Office of the County Recorder,
Official Records
Orange County, California (the “”) against title to the Development Parcels on
_________________as Instrument No.__________, and provided record notice of the DDA.
B.The City has executed that certain Declarationof Special Restrictions for Parcel
Special Restrictions
1C(the “”), dated _____________, thatwas recordedin the Official
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-1-September 29, 2015
9-25-15.Docx
Recordsagainst title to the Development Parcels on _____________as Instrument No.
__________,which includes, among other matters, certain requirements regarding the use and
maintenance of the Development Parcels and sets forth those provisions of the DDA that survive
the issuance of a Certificate of Compliance with respect to the Project.
C.The City has executed that certain Quitclaim Deed for Disposition Parcel 1Cand
Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant toCivil
Quitclaim Deed
Code Section1471(the “”), dated _____________,which was recorded in the
Official Records against title to the Development Parcels on _____________as Instrument No.
__________,which Quitclaim Deed conveyed to Developer the fee title to the Development
Parcels, subject to certain restrictions and limitations set forth in the Quitclaim Deed.
D.Developer and the City executed that certain Development Agreement
DA
(the“”), dated _______________,which was recorded in the Official Records against title to
the Development Parcels on __________________as Instrument No._______________.
E.Developer and the City executed that certain Slope Parcel Easement and
Slope Agreement
Landscape Installation and Maintenance Agreement (the“”), dated
_______________, which was recorded in the Official Records against title to the Development
Parcels on __________________as Instrument No. _______________.
F.The DDA, the Memorandum of DDA, the Special Restrictions, the DA,the
Quitclaim Deed,the Slope Agreementand the CC&Rs,in each case including all Exhibits and
attachments thereto and in each case includingall amendments to any of the foregoing through
Property Documents
the Assignment Effective Date,are collectively referred to herein as the “”.
G.Pursuant to the DDA, Developer agreed to develop and construct on the
Development Parcels certain Improvements comprising the Project.
H.Concurrently with the execution and delivery of this Assignment, Developer is
conveying to Transferee thatportion of the Healthcare Propertycomprised of that certain real
property legally described on Exhibit”B”attached hereto, including all Improvements, if any,
locatedthereon,all appurtenances pertaining thereto and all permits, licenses, approvals and
authorizations issued by any Governmental Authority in connection therewith, for purposes of
construction and operation by Transferee of a portion of the Healthcare Projectand other
Transfer Property
Transferee Improvements(defined below) on the Transfer Property,the (“”),
and for sale of same, and Transferee will develop the Transfer Propertyin accordance with the
requirements of the DDA, including, without limitation, the Scope of Development and the
Schedule of Performance, and the other Property Documents.
I.The DDA imposes certain covenants, conditions, payment obligations and
restrictions on the Development Parcels and, prior to the filing of a Certificate of Completion,
theDDA restricts Developer's ability to transfer ownership and/or control of the Development
Parcels, the Project, the Improvements and/or Developer's obligations with respect to the Project
(including, without limitation, Developer's obligations with respect to the off-site infrastructure
improvements), all as set forth in the DDA.
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-2-September 29, 2015
9-25-15.Docx
J.Developer desires to convey the Transfer Propertyto Transferee and to assign to
Transfereeallof Developer'sright, title and interest in and to the Property Documents with
Transfer Event
respect to the Transfer Property(the “”)to have such assignment approved by
Healthcare Developer
the City, and to have Transferee approved by the City as a “”(as that term
is defined in and used in Section2of the DDA)\].Pursuant to Section2of the DDA (including
without limitation, Section 2.2.3(b)of the DDA), a Transfer must include, among other things,
the execution and delivery of an HCD Assignmentand Assumption Agreement. Developer and
Transferee are entering into this Assignment in order to fulfillthe obligations of Developer and
Transferee under Section2of the DDA.
Simultaneously with this Transfer Event, Transferee will be acquiring the Transfer
Propertyfrom Developer pursuant to and in accordance with the terms of the DDA.
NOW, THEREFORE, for good and valuable consideration, Developer and Transferee
agree as follows:
Assignment.
1.
1.1As of the Assignment Effective Date, Developer hereby assigns, conveys,
transfers, bargains, grants, sells and sets over to Transferee, as and to the extent owned or held
Assigned Interests
by Developer, the following (collectively, the “”):
(a)All right, title and interest of “Healthcare Developer”under the Property
Documentsto the extent affecting the Transfer Property(provided that Developer hereby
reserves and shall not convey to Transferee any right, title or interestto the extent such
right, title or interest isrequired by Developer in connection with the Retail Property).
(b)Thoserightsand obligationsof Developer as the “Developer”under the
Property Documents to the extent such rights and obligations apply to the Transfer
Property(or the Project or Improvements located or to be located thereon),including,
without limitation,(i)the obligation to construct and Complete the Healthcare Horizontal
Improvements and the Minimum Healthcare Vertical Improvements on theTransfer
Property,(ii)the obligation to maintainthe Improvements located on the Transfer
Property, and (iii)any and all additional corresponding rights,obligations,conditions,
limitations and restrictionsunder the Property Documents imposed upon or with respect
tothe Transfer Property(and all Improvements thereon)arising from and after the
Assignment Effective Date, including, without limitation, the rights, obligations,
conditions, limitations, releases, indemnitiesand restrictions contained within the
followingprovisions of the DDA:
(i)Sections 2.1 through 2.4, inclusive;
(ii)Sections 4.5.1 and 4.5.2, including without limitation the release
set forth in Section4.5.2(f);
(iii)Sections 5.1 through 5.7 and 6.1 through 6.4, inclusive;
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-3-September 29, 2015
9-25-15.Docx
(iv)Sections 8.1 through 8.12, inclusive, provided that, with respect to
Section 8.2.1, the time period applicable to Transferee for the Completion of the
Healthcare Minimum Vertical Improvements shall be reduced by six (6) months
from the time period otherwise set forth in the DDA for Completion of the
Minimum Vertical Improvements pursuant to the provisions of Section 14.2.6of
the DDA;
(v)Sections 9.1 through 9.7, inclusive;
(vi)Sections10.1 through 10.7, inclusive;
(vii)Sections 11.1 through 11.2, inclusive,and
(viii)Sections 12.1 through 12.8,inclusive.
(c)All Entitlements and Development Permits and other development rights
relating to the Transfer Property.
(d)The obligations retained bythe Developer with respect to the construction
and Completion of the Minimum Horizontal Improvements on the Transfer Propertyand
the construction of the work described in the Slope Agreement,which Transferee shall be
obligated to carry out only to the extent Developer fails to perform such obligations in a
timely manner in accordance with the Schedule of Performancein the DDA;
(e)All plans, specifications, maps, drawings, and other renderings owned by
Developer and relating to the Transfer Property(which assignment shall be on a non-
exclusive basis),the Healthcare Projectandthe Entitlementspertaining thereto;{and}
(f)All warranties, claims, and any similarrights of Developer relating to and
benefiting the Transfer Propertyor the rights and interests transferred pursuant to this
Assignment\[.\] or \[;and\]
{Insert any additional specific rights or obligations being assigned or
(g)
assumed by the Transferee.The assignment should generally be limited to those
matters related to development construction, maintenance of the Healthcare Project
and the Transfer Property.}
\[.\] or \[;and\]
(h){If the Medical Office Parcels areconveyed separately from the Other
Healthcare Parcels, add in assignment to Healthcare Developer acquiring the Other
Healthcare Parcels the following language\[“Healthcare Developer shall not
:}
commence construction on the Transfer Parcel until and unless construction of the
Medical Office Building on the Medical Office Parcels has “Commenced” (as
defined in the DDA), all as set forth in more detail in Section8.2.6of the DDAand
neither the Healthcare Developer of the Medical Office Parcels nor Transferee is in
Default (as defined in the DDA) under any Property Document.”\]
1.2The Assigned Interests together with the Transfer Propertyare collectively
Assigned Property
referred to in this Assignment as the “.”
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Assumption.
2.
2.1Transferee, on behalf of itself and its successors and assigns, from and after the
Assignment Effective Date, hereby assumes and receives the Assigned Property and Transferee
agrees with Developer (and such agreement is expressly also made for the benefit of the City and
may be directly enforced by the City) as follows, in each case, to the extent relating to the period
from and after the Assignment Effective Date:
(a)Transferee accepts and expressly assumes all of the Assigned Property and
all of the obligations, conditions, limitations and restrictions imposed upon the Transfer
Propertyand/or the Developer with respect to the Transfer Propertyunder the Property
Documents, andTransferee expressly assumes and shall be subject to all the obligations,
conditions, limitations and restrictions to which Developer and/or the Transfer Propertyis
subject under or by reason of the Property Documents that relate to the Transfer Property.
(b)Transferee expressly assumes and shall be subject to all the obligations,
conditions, limitations and restrictions to which Developer and/or the Assigned Property
are subject by reason of the Entitlements related to the Transfer Property;
(c)Upon and subject to the terms and provisions of the Property Documents,
Transferee expressly assumes and shall be subject to all the obligations to perform,
construct and/or install any and all of the Healthcare Improvements, specifically
includingwithout limitation, butsubject to clause (d) below, the Minimum Horizontal
{and: Insert any additional
Improvements located on or affecting the Transfer Property
assumed construction obligations}Transferee Improvements
(collectively, the “”) in
accordance with the Scope of Development and within the time periodsspecified in the
Schedule of Performance;provided, however,that the time period applicable to
Transferee for the completion of the Healthcare Minimum Vertical Improvements shall
be reduced by six(6) months from the time period otherwise set forth in the DDA
pursuant to the provisions of Section14.2.6of the DDA; and
(d)Upon and subject to the terms and provisions of the Property Documents,
Transferee shall pay and perform all obligations of Developer set forth in the Property
Documents that relate to the Assigned Property, including, without limitation, the
following obligations: (i) the obligation to construct allImprovements to be constructed
on the Transfer Propertyin accordance with the Scope of Development and within the
time periodsspecified in the Schedule of Performance; (ii)the obligation to pay all sums
required to be paid by Developer under the Property Documents in connection with the
ownership and/or development of the Assigned Property, to the extent such amounts have
not been paid as of the Assignment Effective Date;(iii)the obligation to developthe
Transfer Propertyin full compliance with allthen-existing Entitlements and the
Approved Plans; (iv)as a condition precedent to this Assignment, the obligation of the
Controlling Person of the Transferee to deliver to the City an HCD Guaranty(or if such
Controlling Person is not approved by the City as the Healthcare Guarantor, another
Person approvedby the City in its sole discretion as the Healthcare Guarantor in
accordance with Section4.6 of the DDA).
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(e)For the avoidance of doubt, upon the execution and delivery of this
Assignment, Transferee shall be deemed to have assumed and shall be obligated to
comply with and perform: (i)all obligations of Healthcare Developer under this
Agreement and the Property Documents, (ii)all obligations of Developer under the
Property Documents with respect to the Transfer Property,the Healthcare Project and the
Improvements thereon, including all requirements of each of the provisions of the
Property Documents that are expressly imposed only upon Developer, but apply with
respect to the Transfer Property(and the Healthcare Project and/or the Improvements
thereon), but in such event only with respect to the Transfer Property(and the Healthcare
Project and the Improvements existing or to be constructed thereon).
(f){Insert any additional obligations to be assumed by Transferee.}
2.2For avoidance of doubt, and without limiting the generality of the foregoing,
Transferee hereby agrees: (a) thatTransfereehashereby assumed and shall be subject to and
obligated to performin accordance withor otherwise comply with the requirements of the DDA,
including without limitation,the following:(i)the restrictions on Mortgages;(ii)the rights and
remedies of Transferor of the Transfer Propertyset forth in Sections14.2.6;(iii)the Transfer and
Transfer of Control restrictionsset forth inSections2.1 through 2.4, inclusive;
(iv)Sections4.5.1 and4.5.2(inclusive) including, without limitation,the release set forth in
Section 4.5.2 (f);(v)the indemnities and other requirements of Sections10.1 through 10.7,
inclusive;and (vi)the covenants and use restrictions set forthin Sections12.1 through 12.8,
inclusive;and (b)that it shallbe subject to all rights and remedies of the City under the Property
Documents, including without limitation, the Right of Repurchase and the Right of Reversionset
forth in the DDA.
2.3Transferee shall remain fully responsible to perform and satisfy all of the
obligations and liabilities assumed by Transferee pursuant to Section2.1and 2.2above
regardless of any of the following:
(a)the value of the Assigned Property or the income to be derived from the
Assigned Property;
(b)the existence or non-existence of any liens, easements, covenants,
conditions, restrictions, claims or encumbrances affecting the Assigned Property
(including without limitation any of the foregoing arising from or related to the
Entitlements or any of the Property Documents);
(c)the suitability of the Assigned Property for any and all future
development, uses and activities which Transferee or Developer may conduct thereon,
including, without limitation,the development of the Project as described in the Property
Documentsand this Assignment;
(d)the ability of the City or any third party to complete, or likelihood of the
completion of, any of the improvements and infrastructure described by the General Plan,
the Reuse Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program or
any other plan or policy of the City or any other Governmental Authorities;
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(e)the compliance by the City or any third party with respect to the Reuse
Plan, the General Plan, the Specific Plan, theSpecial Restrictions, the CC&Rs,the Tustin
LegacyBackbone Infrastructure Programor any other agreement or governmental
restriction or plan affecting Tustin Legacyby the City or any third party;
(f)the habitability, merchantability or fitness for a particular purpose of the
Assigned Property;
(g)the manner, quality, state of repair or lack of repair of the Assigned
Property;
(h)the nature, quality or condition of the Assigned Propertyincluding without
limitation, water, soil and geology;
(i)the compliance of or bythe Assigned Property and/or its operation in
accordance with any of the Entitlements or any Governmental Requirements, including
without limitation, the National Environmental Policy Act, CEQA and the Americans
with Disabilities Act of 1990;
(j)the manner or quality of the construction or materials, if any, incorporated
into any part of the Transfer Propertyor the Improvements;
(k)the presence or absence of Hazardous Materials, including without
limitation, asbestos or lead paint at, on, under, or adjacent to the Transfer Propertyor any
other portion of the Development Parcels or Tustin Legacy;
(l)the content, completeness or accuracy of the information, documentation,
studies, reports, surveys and other materials, delivered to Transferee by Developer or
others in connection with Transferee's review of the Assigned Property and the
transactions contemplated in the Property Documentsor this Assignment;
(m)the conformity of the existing improvements on the Transfer Property,the
Development Parcels and/or at Tustin Legacy,if any, to any plans or specifications
therefor;
(n)compliance of the Assigned Property with past, current or future
Governmental Requirements relating to zoning, subdivision, planning, building, fire,
safety, health or environmental mattersand/or covenants, conditions, restrictions or deed
restrictions;
(o)the deficiency of any undershoring or of any drainage to, on or from the
Transfer Propertyor any other portion of Tustin Legacy;
(p)the condition of any adjoining land owned by the City, including without
limitation the Slope Parcel and any improvements thereon;
(q)the fact that all or a portion of the Transfer Propertymay be located on or
near an earthquake fault line or falls within an earthquake fault zone established under the
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Alquist-Priolo Earthquake Zone Act, California Public Resources Code sections2621-
2630 or within a seismic hazard zone established under the Seismic Hazards Mapping
Act, California Public Resources Code sections2690-2699.6 and sections3720-3725;
(r)the existence or lack of vested land use, zoning or building entitlements
affecting the AssignedProperty;
(s)the construction or lack of construction of Tustin Legacy or if constructed,
the construction of Tustin Legacy in accordance with design guidelines, plans and
specifications previously or to be prepared therefor;
(t)the conditions, covenants and restrictions imposed or to be imposed upon
the Assigned Property or any portion thereof under the Property Documents or the
Entitlements;
(u)the contents of the Memorandum of Agreement, the Federal Deed, the
Base Closure Law and the FOST; and
(v)any other matters.
Release and Continuing Liabilityunder the DDA
3..
Asof the Assignment Effective Date, Developer shall be released from all obligations
under the Property Documents with respect to the Transfer Property,the construction and
Completion of the Healthcare Vertical Improvements,and the other obligations expressly
assumed by the Transferee hereunder; provided, however, thatnotwithstanding the assignment in
Section1of this Assignment, theassumption in Section2of this Assignment,and the City's
consent attached to this Assignment, Developer shall not be released from the obligations
identified in Section 2.2.3(b)(v) of the DDA.
Indemnity.
4.Transferee shall indemnify, protect, defend, assume all responsibility for and
hold harmless Developer and its members, officers, agents, affiliates, employees, contractors,
DeveloperIndemnified
consultants, and representatives (collectively referred to as the “
Parties
”) with counsel reasonably acceptable to Developer, from and against any and all Claims
arising from or relating to Transferees' failure to perform its obligations under, or otherwise
comply with, the DDA,any of the Property Documents, or this Assignment.
Definitions
5..
For purposes of this Assignment and the obligations of the Transferee under the DDA,
within the sections of the DDA listed in Sections1 and 2of this Assignment, the following terms
shall have the meanings set forth below:
(a)“Developer”shall mean Healthcare Developer;
(b)“Property”and “Development Parcels”shall each mean the Assigned
Property;
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(c)“Project”shall mean theconstruction and installation of theHealthcare
Improvements,and
(d)“Improvements”shall mean the Healthcare Horizontal Improvements and
Healthcare Vertical Improvementsand the components of the Minimum Horizontal
Improvements located upon or affecting the Transfer Property.
No Waiver or Modification.
6.
Nothing contained in this Assignment shall modify in any way any other provisions of
the Property Documents and/or the Entitlements. Transferee acknowledges that it is taking title
to and is assuming the Assigned Property subject to, among other things, the rights of the City
and Developer as described in the Property Documents.
Additional Documents.
7.
Developer and Transferee shall each execute and deliver to the other party, upon demand,
such further documents, instruments and conveyances, and shall takesuch further actions as are
necessary or desirable to effectuate the intent and purposes of this Assignment.
Representations and Warranties of Healthcare Developer.
8.
As an inducement to the City to consent to this Assignment and to perform its obligations
under the DDA for the benefit of Transferee, Transferee represents and warrants to the City as
follows:
8.1Transferee has the necessary expertise, experience, financial experience and
qualifications and legal status necessary to perform as Transferee pursuantto this Assignment
and the Property Documents to construct and complete the Project, and, without limiting the
foregoing, Transferee is experienced in the development, management, and leasing of
commercial projects of the size and type described in this Assignmentand the Property
Documentsand understands the process and requirements associated with projects such as the
Project described herein.
8.2Transferee's acquisition of the Property, development of the Project and its other
undertakings pursuant to this Assignmentand the Property Documents are for the purpose of
timely development of the Development Parcels in accordance with the Healthcare Schedule of
Performance attached to the DDA and not for speculation or land holding.
8.3Transferee is a \[_____________ \[company\], duly organized, and validly existing
and in good standing under the laws of the State of ____________,\]is duly qualified to do
business and in good standing in the State of California andeach other jurisdiction where the
operation of its business or its ownership of property or the performance of Transferee's
obligations under this Assignmentand the Property Documents make such qualification
necessary.
8.4Transferee has (or will have prior to the date by which a particular step is required
to be taken or performance of a particular obligation is required to be commenced pursuant to
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this Assignmentor any of the Property Documents) all requisite power and authority required to
enter into this Assignmentand the instruments referenced in this Assignmentand the Property
Documents,to assume and perform the obligations of Healthcare Developer under the Property
Documents, to consummate the transaction contemplated hereby and to take any steps
contemplated thereby or hereby, and to perform its obligations hereunder and thereunder.
8.5Transferee has obtained (or will have obtained prior to the date by which a
particular step is required to be taken or performance of a particular obligation is required to be
commenced pursuant to this Assignmentor anyProperty Documents) all required consents in
connection with entering into this Assignmentand the instruments and documents referenced in
this Assignmentand the Property Documents, assuming and performing the obligations of
Healthcare Developer under the Property Documents to which Transferee is or shall be a party
and the consummation of the transactions contemplated herebyand thereby.
8.6The individuals executing this Assignmentand the individuals that will execute
the instruments referenced in this Assignmentand the Property Documents on behalf of
Transferee have, or will have upon execution thereof, the legal power, right and actual authority
to bind Transferee to the terms and conditions hereof and thereof.
8.7This Agreement has been duly authorized, executed and delivered by Transferee
and all documents required in this Assignmentor the Property Documents to be executed by
Transferee pursuant to this Assignmentor the Property Documentsshall be, at such time as they
are required to be executed by Transferee, duly authorized, executed and delivered by Transferee
and are or shall be, at such time as the same are required to be executed hereunder, valid, legally
binding obligations of and enforceable against Transferee in accordance with their terms, except
as enforceability may be limited by bankruptcy laws or other similar laws affecting creditors'
rights.
8.8Neither the execution or delivery of this Assignment,the documents referenced in
this Assignmentor the Property Documents, nor the incurring of the obligations set forth in this
Assignmentor the Property Documents and the certificates, declarations and other documents
referenced in this Assignmentand the Property Documents, nor the consummation of the
transactions contemplated in this Assignmentor the Property Documents, nor compliance with
the terms of this Assignmentand the documents referenced in this Assignmentor the Property
Documents, will violate any provision of law or any order of any court or Governmental
Authority to which Transferee is subject or conflict with or result in the breach of any terms,
conditions, or provisions of, or constitute a default under any bond, note, or other evidence of
indebtedness or any contract, indenture, mortgage, deed of trust, loan partnership agreement,
lease or other agreements or instruments to which Transferee or any of its members are a party
and which affect the Property or the transactions contemplated by this Assignmentor the
Property Documents.
8.9No attachments, execution proceedings, assignments of benefit to creditors,
bankruptcy, reorganization or other proceedings are pending or, to the best of Transferee's
knowledge, threatened against Transferee or its members.
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8.10Transferee is relying solely upon its own inspections and investigations in
proceeding with this Assignmentand the assumption of the Property Documents and the
transactions contemplated herebyand thereby, and is not relying on the accuracy or reliability of
any information provided to it by the City, on any oral or written representation or on the non-
disclosure of any facts or conclusions of law made by the City, or any of its elected and
appointed officials, officials, employees, agents, attorneys or representatives made in connection
with this Assignmentor the Property Documents.In making such investigation and assessment,
Transferee has been provided access to any persons, records or other sources of information
which it has deemed appropriate to review and it has thereafter completed such investigation and
assessment. Without limiting the generality of the foregoing provisions, Transferee
acknowledges that the City has not made and will not make any representations or warranties
concerning the condition of the Property, the compliance or non-compliance of the Property or
any portion thereof with Environmental Laws or the existence or non-existence of Hazardous
Materials in relation to the Property or any portion thereof or otherwise.
8.11To Transferee's knowledge, except as described on Attachment4, there are no
adverse conditions or circumstances, no pending or threatened litigation, governmental action, or
other condition which could prevent or materially impair Transferee's ability to develop the
Transfer Propertyand the Project as contemplated by the terms of this Assignmentandthe
Property Documents.
8.12Except as set forth in this Assignmentand the Property Documents, Transferee
has not paid or given, and will not pay or give, any third Person any money or other
consideration for obtaining this Assignment, other than the normal cost of conducting business
and cost of professional services such as architects, engineers and attorneys.
8.13All reports, documents, instruments, information and forms of evidence delivered
by Transferee to the City concerning or related to this Assignmentand the Property Documents
and the transactions contemplated hereby and thereby are, to the best of Transferee's knowledge,
accurate and correct and sufficiently complete at the time of submission to give the City true and
accurate knowledge of the subject matter, and do not contain any misrepresentation or omission.
8.14Prior to the Assignment Effective Date, Transferee has delivered a HCDEquity
HCD Equity
Funding Letterdated __________ and executed by ___________ to the City(“
Funding Letter
”). The HCDEquity Funding Letter is in full force and effect and has not been
amended or modified. Based on the HCD EquityFunding Letter, Transferee has, as of the
Assignment Effective Date, the equity capital and financial capacity, without requirement of
third party financing other than as set forth in the Initial Retail Equity Funding Letter, sufficient
to obtain the Applicable Approvals and Development Permits. Prior to the Healthcare Property
Close of Escrow, Transferee shall deliver to the City an additional equity funding letter in
accordance with Section4.6.2(a)of the DDAand comply with the other obligations of
Transferee under this Assignmentand the Property Documentsrequired to be satisfied prior to
the Healthcare Property Closeof Escrow.
8.15Prior to the Assignment Effective Date, Developer andTransferee, as the
proposed Healthcare Developer,have executed and delivered that certain ____________,dated
PSA
______________, 20__(the “”), a copy of which has been delivered by Developer to the
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City. The PSA: (a) is in full force and effect and has not been amended or modified,and (b) will
not be modified, amended or terminated by Developer or Transferee without the prior consent of
Cityin its sole discretion.Upon satisfaction of the conditions precedent set forth in Section7.2.1
of the DDA and without any other requirement or condition pursuant to the terms of the PSA or
any other HCD Agreement entered into by Transferee and Developer,as of the Healthcare
Property Close of Escrow, Developershall be obligated to sell to Transferee, and Transferee has
agreed to acquire, all right, title and interest of Developer under the DDA and the other Property
Documents with respect to the Transfer Propertyand the development thereof, and to assume
and comply with theobligations of Healthcare Developer and other obligations of Developer
under this Assignmentand the Property Documents(including, without limitation,execution of
the HCD Guaranty and the HCD Agreements, if any, required to comply with the terms of this
Assignmentand the Property Documents) required to be satisfied with respect to the Healthcare
Developer and/or the Transfer Property, whether prior to or following the Healthcare Property
Close of Escrow.Transfereeacknowledges that, notwithstanding the execution by Transferee
and Developer of the PSA, the City has the right, in its sole discretion to approve and/or
disapprove Transferee as Healthcare Developer, the PSA and any future HCD Agreements with
Transferee, as further set forth in Section2.2.3(b)and/or Section4.6of the DDA, as applicable.
8.16Transferee does not have any contingent obligations or any other contracts the
performance or nonperformance of which could affect the ability of Transferee to carry out its
obligations hereunder. Transferee has not and shall not undertake such additional projects as
could reasonably be expected to jeopardize the sufficiency of such equity, capital and firm and
binding commitments for the purposes expressed in the preceding sentence.
8.17\[Except as set forth in Exhibit ___,there/ There\]are no legal proceedings either
pending or, to the best of Transferee's knowledge, threatened, to which Transferee is or may be
made a party, or to which any of Transferee's property, or the Transfer Property, is or may
becomesubject, which could materially affect the ability of Transferee to carry out its
obligations hereunder.
Transferee's representations and warranties set forth in this Section8shall be deemed to be
restated at eachClose of Escrow, and shall survive eachClose of Escrow until thetermination of
the DDA with respect to the Transfer Propertyand shall not be merged with any Quitclaim Deed.
to Transferee's knowledge
The phrase“”and similar phrases means those Persons Transferee
represents as having knowledge of the transactions andTransferee and accepted by the City,
\[ADD NAMES\]
comprised of in each case without any duty of inquiry (collectively, the
TransfereeKnowledge Parties
“”). Notwithstanding anything to the contrary contained herein,
noneof the Transferee Knowledge Partiesshall be personally liable for any inaccuracy or breach
by Transferee of the representations and warranties contained in this Section8or elsewhere in
this Assignmentor the Property Documents.Transferee shall promptly advise the City in
writing if any of the Transferee Knowledge Parties becomes aware (without any duty of inquiry)
that any representation or warranty made by Transferee in or pursuant to this Assignment the
DDAis or becomes untrue in any material respect prior to each Close of Escrow.
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No Real Estate Commissions.
9.
Developer and Transferee each represents for the benefit of the City that it has engaged
no broker, agent or finder in connection with this Assignment or the transactions identifiedin
this Assignmentor the Property Documents, other than disclosed to City in writing prior to the
Effective Date. Developer and Transferee hereby agrees to indemnify and hold the City and its
elected and appointed officials, employees and representatives harmless from any losses and
liabilities arising from or in any way related to any claim by any broker, agent, or finder retained
by Developer and/or Transferee regarding this Assignment, the Property Documentsor
development of the Healthcare Project orthe transactions identified in this Assignment and the
Property Document.
Miscellaneous.
10.
10.1Modification. No amendment, change, modification or supplement to this
Assignment shall be valid and binding on Developer or Transferee unless it is represented in
writing and signed by both Developer and Transfereeand with the written consent of the City
thereto. No amendment, change, modification or supplement to this Assignment shall be deemed
to be part of the consent or deemed to be consented to by the City, unless the City executes a
separate written consent to such amendment, change, modification or supplement.
10.2Applicable Law. This Assignment shall be governed by, interpreted under,
construed and enforced in accordance with the laws of the State of California, irrespective of
California's choice-of-law principles.
10.3Binding Effect. This Assignment and the terms, provisions, promises, covenants
and conditions hereof shall be binding upon and inure to the benefit of Developer and Transferee
and their respectiveheirs, legal representatives, successors and assigns.
10.4Counterparts. This Assignment may be executed in two or more separate
counterparts, each of which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This
Assignment shall not be effective until the execution and delivery by Developer and Transferee
of at least one set of counterparts (together with an executed counterpart of the City's consent
attached to this Assignment). A counterpart of this Assignment that is executed and delivered
electronically (by facsimile machine or email) shall not be effective unless an ink-signed original
executed copy of the signature page of this Assignment is also promptly delivered to the other
party, and such ink-signed original executed page is actually received by the other party.
Developer and Transferee hereby authorize each other to detach and combine original signature
pages and notarial acknowledgements and consolidate them into a single identical original. Any
one of such completely executed counterparts shall be sufficient proof of this Assignment as a
duly and validly executed agreement.
10.5City as Third Party Beneficiary. Developer and Transferee hereby acknowledge
andagree that until the Certificate of Compliance is recorded in the Official Recordswith respect
to the Transfer Property, the City shall be an intended third party beneficiary under this
Assignment and the City shall have the right to enforce the terms and provisions of this
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Assignment applicable to the City. Other than the City, there shall be no third party beneficiaries
of this Assignment.
10.6Notices. From and after the Amendment Effective Date, all notices that the City
delivers to the “Healthcare Developer”under the Property Documents and/or the Entitlements
with respect to the Transfer Propertyshall also concurrently be delivered to Transferee pursuant
to Section17.6of the DDA, shall be delivered to Transferee onlyat the following addresses:
Transferee:
\[_________\]
_______________________
_______________________
_______________________
with a copy to:
\[legal counsel\]
_______________________
_______________________
_______________________\]
\[signature page follows\]
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Developer and Transfereeeach has caused this Assignment to be duly executed by its
duly authorized officer as of the Assignment Effective Date.
“DEVELOPER”
1CTUSTIN LEGACY, LLC,
a Delaware limited liability company
By:Regency Centers, L.P.,
Delaware limited partnership,
Its Sole Member
By:Regency Centers Corporation,
a Florida corporation,
Its General Partner
By:
Dated: __________________
John Mehigan
Vice President
“TRANSFEREE”
\[_____________\],
a_______________________________
By:
Dated: __________________
Name:
Title:
By:
Name:
Title:
{City consent on next page}
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ACKNOWLEDGMENT AND CONSENT BY CITY OF TUSTIN
By executing in the space set forth below, the City of Tustin hereby:
(a)Acknowledges receipt of the Assignment and Assumption Agreement
Assignment
(the””) to which this Consent is attached;
(b)Consents to the making of the Assignment between Developer and
Transferee,subject to the terms and conditions set forth in the Assignmentand this
Acknowledgement and Consent by City of Tustin;
\[insert name of Transferee\], a _____________________\]
(c)Agrees that
(the assignee in the Assignment) shall be deemed by the City to be the “Healthcare Developer”
under the DDA with respecttothe Transfer Property, from and afterthe Assignment Effective
Date;
(d)Acknowledges the additional addresses for Notices for Transferee set forth
in the Assignment and agrees that from and after the Assignment Effective Date all notices from
City to Developer under the PropertyDocuments and the Entitlements with respect to the
Transfer Propertyshall also be delivered to Transferee at such addresses.
(e)This Consent by the City constitutes the consent required pursuant to
Section2.2.3(b)of the DDA with respect to Transfer to a Healthcare Developer and constitutes
the City's acknowledgment that the requirements of Section2.2.3(b)have been satisfiedwith
respect to the Transfer described in this Assignment;
(f)Transferor is released from the obligationsof Developer under the DDA
and theProperty Documents with respect to construction and Completion of the Healthcare
Vertical Improvements; provided that, notwithstanding the foregoing or the assumption of
obligations byTransferee:
(1)Developer shall not berelieved of any of its other
obligations under the DDA or the Property Documents and specifically, and without limitation
shall not be relieved or released from the Ongoing Matters and/or, in its capacity as Healthcare
Property Transferor, from the Healthcare Transferor Obligations;
(2)the Healthcare Transferor Obligations shall remain
the obligations of Transferor and each Successor Owner of the Retail Parcels that is not an End
User unlessand untilsuch Person is expressly released in writing by the City;
(3)nothing in this paragraph (f) shall limit Developer's
liability during any applicable Additional Liability Period; and
(4)after Transfereehas delivered the HCD Guaranty
and the Minimum Horizontal Improvements have been completed, other than the Ongoing
Matters and the remainingHealthcare Transferor Obligations, Developer shall not have any
liability for any breach of the DDA by Transferee or otherwise relating to the Transfer Property.
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-16-September 29, 2015
9-25-15.Docx
(g)This Consent by the City to the Assignment shall not constitute evidence
of compliance with or satisfaction of any obligation of Developer under any of the Property
Documents, or any other agreement between Developer and the City, except for the obligation of
Developer to obtain the City's consent to any Transfer.
CITY:
CITY OF TUSTIN
Dated: ______________, 20____
By:
Jeffrey C. Parker
City Manager
ATTEST:
By:
Erica N. Rabe
City Clerk
APPROVED AS TO FORM:
By:
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
Special Tustin Counsel
By:
Amy E. Freilich
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-17-September 29, 2015
9-25-15.Docx
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-18-September 29, 2015
9-25-15.Docx
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-19-September 29, 2015
9-25-15.Docx
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledgedto me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-20-September 29, 2015
9-25-15.Docx
EXHIBIT “A”
Legal Description of the Development Parcels
\[Insert Legal Description\]
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-21-September 29, 2015
9-25-15.Docx
EXHIBIT “B”
Legal Description of the Transfer Property
\[Insert Legal Description of Transfer Property\]
Regency_Tustin_-ATTACHMENT 16BCity of Tustin/Regency Centers DDA
_DDA_Attachment_16B_(Form_Of_HCD_Assignment -FINAL -
-22-September 29, 2015
9-25-15.Docx
ATTACHMENT 17
FORM OF CITY DATE DOWN CERTIFICATE
REGARDING REPRESENTATIONS AND WARRANTIES
Reference is hereby made to that certain Tustin Legacy Disposition and Development
DDA
Agreement For Disposition Parcel 1Cdated as of_________, 2015(“”), by and between1C
Developer
Tustin Legacy, LLC, a Delaware limited liability company (“”), and the City of
City
Tustin, a municipal corporation of the State of California (the “”). Capitalized terms used
herein that are not defined herein shall have the meanings specified in the DDA.
This Date Down Certificate is being delivered by the City pursuant to {Section7.2.1(a)(viii)/
7.3.1(a)(viii)}of theDDA concurrently with the {Retail Property/Healthcare Property}Close of
Escrow.
The undersigned does hereby certify to {Healthcare}Developer, in the name and on behalf of
the City, that all of the representations and warranties made by the City in Section3.3and in
Section18.12.2of the DDA are trueand correct as of the date hereof, except as set forth on
ExhibitAattached hereto.
Without the written consent of the City: (i) no Person other than {Healthcare} Developer may
rely on this Date Down Certificate for any purpose; and (ii) copies of this Date Down Certificate
may not be furnished to anyone for purposes of encouraging such reliance.
In no event shall the individual executing this Date Down Certificate on behalf of the City have
any personal liability hereunder.
{remainder of page is blank –signature on next page}
Regency_Tustin_-ATTACHMENT 17City of Tustin/Regency Centers DDA
_DDA_Attachment_17_(City_Date_Down_Certificate)
-1-September 29, 2015
FINAL.Docx
Dated: ______________
CITY:
CITY OF TUSTIN
By:
Jeffrey Parker
City Manager
APPROVED AS TO FORM
By:
David Kendig, City Attorney
Regency_Tustin_-ATTACHMENT 17City of Tustin/Regency Centers DDA
_DDA_Attachment_17_(City_Date_Down_Certificate)
-2-September 29, 2015
FINAL.Docx
EXHIBIT “A”
{If none—enter None}
Regency_Tustin_-ATTACHMENT 17City of Tustin/Regency Centers DDA
_DDA_Attachment_17_(City_Date_Down_Certificate)
-3-September 29, 2015
FINAL.Docx
ATTACHMENT 18A
FORM OF DEVELOPER DATE DOWN CERTIFICATE
REGARDING REPRESENTATIONS AND WARRANTIES
Reference is hereby made to that certain Tustin Legacy Disposition and Development
DDA
Agreement For Disposition Parcel 1Cdated as of_________, 2015(“”), by and between1C
Developer
Tustin Legacy, LLC, a Delaware limited liability company (“”), and the City of
City
Tustin, a municipal corporation of the State of California (the “”). Capitalized terms used
herein that are not defined herein shall have the meanings specified in the DDA.
This Date Down Certificate is being delivered by Developer pursuant to
{Section7.2.2(b)(viii)/7.3.2(b)(vii})of theDDA concurrently with the {Retail
Property/Healthcare Property}Close of Escrow.
The undersigned does hereby certify to the City, in his or her capacity as an officer of
Developer and for and on behalf of Developeras follows:
1.All of the representations and warranties made by Developer in Sections 2.1,3.1,
4.5.1, 5.2,and 18.12.1of the DDA are true and correct as of the date hereof, except as set forth
onExhibitAattached hereto.
2.The documentation submitted by the Developer to the City pursuant to
Section4.6.2of the DDA prior to the Effective Date is true and correct in all material respects as
of the date of this certificate.
3.Attached to this Date Down Certificate as Exhibit Bare true and correct copies of
the certificateof good standing and tax good standing for Developer from the Delaware and
California Secretary of State, and each attached certificate of good standing is dated not earlier
than thirty (30) days prior to the date of this Date Down Certificate.
4.The Financing Plan, as the same may have been updated in accordance with the
requirements of Section 4.6.1 or 4.6.4of the DDA,remainstrue and correct and the Project
budget for the Minimum Improvements remains a reasonable budget.
Without the written consent ofDeveloper: (i) no Person other than the Citymay rely on this Date
Down Certificate for any purpose; and (ii) copies of this Date Down Certificate may not be
furnished to anyone for purposes of encouraging such reliance.
In no event shall the individual executing this Date Down Certificate on behalf of Developer
have any personal liability hereunder.
{remainder of page is blank –signature on next page}
Tustin Regency DDA Att 18A (Dev Date Down ATTACHMENT 18ACity of Tustin/Regency Centers DDA
Cert) 9-28-15 Final(2).Docx-1-September29, 2015
“DEVELOPER”
Dated: ______________________ 1CTUSTIN LEGACY, LLC,
a Delaware limited liability company
By:Regency Centers, L.P.,
Delaware limited partnership
Its Sole Member
By:Regency Centers Corporation,
a Florida corporation
Its General Partner
By: ________________________
Name:__________________Title:
________________
Tustin Regency DDA Att 18A (Dev Date Down ATTACHMENT 18ACity of Tustin/Regency Centers DDA
Cert) 9-28-15 Final(2).Docx-2-September29, 2015
EXHIBIT “A”
{If none—enter None}
Tustin Regency DDA Att 18A (Dev Date Down ATTACHMENT 18ACity of Tustin/Regency Centers DDA
Cert) 9-28-15 Final(2).Docx-3-September29, 2015
ATTACHMENT 18 B
HEALTHCARE DEVELOPER CERTIFICATE
REGARDING REPRESENTATIONS AND WARRANTIESAND AUTHORITY
Reference is hereby made to that certain Tustin Legacy Disposition and Development
DDA
Agreement For Disposition Parcel 1Cdated as of_________, 2015(“”), by and between
Developer
1C Tustin Legacy, LLC, a Delaware limited liability company (“”), and the City of
City
Tustin, a municipal corporation of the State of California (the “”). Capitalized termsused
herein that are not defined herein shall have the meanings specified in the DDA.
This Certificate is being delivered pursuant to Section7.2.2(b)(xiii)of theDDA concurrently
with theHealthcare PropertyClose of Escrowand the delivery by Developerand
Healthcare Developer
__________________(“”)of that certain HCD Assignment and
Assignment Agreement
Assumption Agreement of even date herewith (“”) pursuant to which
Developer has assignedto Healthcare Developer and Healthcare Developer has assumed, among
other things,Developer’s rights and obligationswith respect to the Healthcare Property and
Healthcare Provisions as further set forth therein and in the DDA. As an inducement to the City
to consent to theTransfer to Healthcare Developer and thematters described by the Assignment
Agreement,the undersigned does hereby certify to the City,in his or her capacity as an officer of
{Healthcare Developer/Company}and for and on behalf of such entity,as follows:
1.Authority of Undersigned. I, the undersigned, amthe duly elected and qualified
\[state office held\] of _______________, a{limited liability company/corporation/other}duly
Company
organized and existing under the laws of the State of __________(the “”)and am
authorized by the Company to make the certifications contained in this Certificate.{The
Company is the entity that is Healthcare Developer under the Assignment Agreement/or explain
relationship of Company to Healthcare Developer}.
2.Representations and Warranties.All of the representations and warranties made
by Healthcare Developer in the Assignment Agreement are made for the benefit of the City and
are true and correct as of the date hereof, except as set forth on ExhibitAattached hereto.
3.Financial and Other Information.The documentation and statements submitted
by theHealthcare Developer to the City, including, but not limited to, the documentation and
statements submitted to the Citypursuant to Sections 2.2.3(a)(ii)A through F,4.6.4, 4.6.5 and
4.6.8of the DDA,are true and correct in all material respects as of the date of this Certificate;
4.Certificate of Incorporation of the Company. Attached hereto as Exhibit Bis a
true and correct copy of the {Certificate of Incorporation of the Company/Certificate of
Formation}of the Companyand any and all amendments thereto in effect on the date hereof.
5.{Bylaws/Operating Agreement}of the Company. Attached hereto as Exhibit Cis
a true and correct copy of the {Bylaws/Operating Agreement}of the Companyand any and all
amendments thereto in effect on the date hereof.
6.Good Standing.Attached hereto as Exhibit Dare true and correct copies of the
Certificate of good standing for the Company from {the ____________ Secretary of State and
Tustin Regency Att 18B Healthcare Developer ATTCHMENT 18B City of Tustin/Regemcu Cemters DDA
Certificate 9-15-2015 (agd).docxSeptember15, 2015
-1-
the}California Secretary of State and a certificate of tax good standing for the Company from
the California Franchise Tax Board, and each attached certificate of good standing is dated not
earlier than thirty (30) days prior to the date of this Certificate.
7.{Certificate of Status of Foreign Corporation of the Company. Attached hereto as
Exhibit Eis a true and correct copy of the Certificate of Status of Foreign Corporation of the
Company and any and all amendments thereto in effect on the date hereof. }
8.{Fictitious Business Name Statement. Attached hereto as Exhibit Fis a true and
correct copy of the County of Orange Fictitious Business Name Statement of the Company and
any and all amendments thereto in effect on the date hereof.\]
9.Consents and Approvals. All required approvals, consents, resolutions or other
proceedings of the Company to authorize execution and delivery by Healthcare Developer of the
Assignment Agreement and the assumption by Healthcare Developer of the obligations under the
DDA and theOther Agreements as and to the extent set forth therein, have occurred in
accordance with the documents attached hereto as Exhibit G.
10.{Insert name ofindividual(s)authorized to execute agreements}is a
__________of the Company and is in such capacity, duly authorized by the Company to execute
the Assignment Agreement and any and all instruments, documents and other agreements
required in connection therewith by the terms thereof and the terms of the DDA and the Other
Agreements on behalf of the Company, and to bind theCompanyas to the matters stated therein
and has the appropriate corporate authority to execute documents, instruments and agreements,
in accordance with the {Resolution/Operation Agreement/Other}of the Company attached as
Exhibit Fhereto.
Without the written consent ofthe Companyno Person other than the Citymay rely on this
Certificate for any purpose.
In no event shall the individual executing this Certificate on behalf ofthe Company have any
personal liability hereunder.
\[Note: Will need similar certificate forHealthcare Developer and any intermediary entity\]
{remainder of page is blank –signature on next page}
Tustin Regency Att 18B Healthcare Developer ATTCHMENT 18B City of Tustin/Regemcu Cemters DDA
Certificate 9-15-2015 (agd).docxSeptember15, 2015
-2-
“HEALTHCARE DEVELOPER”
Dated: ______________________ \[Name of Healthcare Developer\]
a
By: ________________________
Tustin Regency Att 18B Healthcare Developer ATTCHMENT 18B City of Tustin/Regemcu Cemters DDA
Certificate 9-15-2015 (agd).docxSeptember15, 2015
-3-
EXHIBIT “A”
{If noqualifications, enter “None”}
Tustin Regency Att 18B Healthcare Developer ATTCHMENT 18B City of Tustin/Regemcu Cemters DDA
Certificate 9-15-2015 (agd).docxSeptember15, 2015
-1-
ATTACHMENT 19
LIST OF PROHIBITED USES
Prohibited Uses shall include the following:
a)Temporary food or beverage trucks;
b)Any coin operated laundry;
c)Any
d)Any dry cleaning plant; provided, however, that this restriction shall not apply to
either (a) a drop off/pick up only type of facility or (b) an operation using a Liquid
CO System, a Wet-Dry System or a D5 System or other equal or better
2
environmentally sound process, so long as the operator thereof: (i) uses best
management practices intended to avoid Release of Hazardous Materials;
(ii) identifies and addresses leaks; (iii) controls emissions of any of these products;
and (iv) performs all dry cleaning activities in compliance with all applicable laws,
rules, ordinances and regulations (federal, state or local);
e)Any dance hall, night club or billiard parlor, unless operated in conjunction with a
restaurant or other food establishment.
f)Any entertainment, pinball, video, or similar arcade, except as incidental to a permitted
retail use;
g)Any funeral home or mortuary;
h)Any flea market, except farmers markets and community or charitable events;
i)Any facility for the sale or display of pornographic material (e.g., video or book store
except establishments that are not perceived to be, nor hold themselve
book stores (e.g., drug stores, grocery stores, newsstands or kiosks, coffee shops or
first class book retailers), but which may incidentally sell books, magazines or other
periodicals that may contain pornographic materials;
j)Any gambling facility or operation, including, but not limited to, off-track or sports
betting parlor, table games such as black-jack or poker, slot machines, video
poker/black-jack/keno machines or similar devices, or bingo parlor (this prohibition
shall not be applicable to government sponsored gambling activitiese.g., state
lotteryor charitable gambling activities, so long as such activities are incidental to
the business operation being conducted by the permitted occupant or tenant);
k)Any gun shop, except as an incidental part of a sporting goods or outdoor retail stores
(e.g., Big 5 Sporting Goods, Dicks Sporting Goods, Sports Authority Sporting Goods
l)Firearm shooting range;
m)Any store selling paraphernalia used for the consumption of cannabis, tobacco,
legal highs, legal party powders and herbs;
ATTACHMENT 19
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-1-
September 29, 2015
n)Any store selling paraphernalia for illegal drugs;
o)Any massage parlor (except for bona fide therapeutic massage, chiropractic care, sports
therapy, a beauty salon/day spa and other bona fide massage services in connection
with a permitted health club use), adult entertainment restaurant, bar or club (e.g.,
p)Any retail store that primarily sells medical marijuana; and
q)Any pawn shop.
ATTACHMENT 19
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-2-
September 29, 2015
ATTACHMENT 20
DECLARATION OF SPECIAL RESTRICTIONS
FOR PARCEL 1C
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT
FROM RECORDING FEES PER
GOVERNMENT CODE 6103 AND 27383.
Recording requested by and
When recorded mail to:
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
SPACE ABOVE THIS LINE FOR
RECORDER'S USE
DECLARATION OF SPECIAL RESTRICTIONS
FOR DISPOSITION PARCEL1C
This DECLARATION OF SPECIAL RESTRICTIONS FOR DISPOSITIONPARCEL 1C(this
DeclarationEffective Date
“”), is made as of \[\] (“”) by the CITY OF TUSTIN, a municipal
City
corporation of the State of California (“”), and is acknowledged by 1C TUSTIN LEGACY,
Developer
LLC, a Delaware limited liability company (“”).
A.Pursuant to the Defense Base Closure and Realignment Act of 1990 (Part A of
Title XXIX of Public Law 101-510; 10 U.S.C. Section 2687 Note), as amended, the Marine
MCAS Tustin
Corps Air Station-Tustin (“”) located substantially in the City of Tustin,
California was closed by the United States of America, acting by and through the Department of
Navy
the Navy (the “”). In 1992, the City was designated as the Lead Agency or Local
Redevelopment Authority for preparation of a reuse plan for MCAS Tustin in order to facilitate
the closure of MCAS Tustin and its reuse in furtherance of the economic development of the
City and surrounding region.
B.In May 2002, the Navy approved an Economic Development Conveyance of
Property at MCAS Tustin and agreed to convey approximately 1,153 acres of MCAS Tustin to
the City. The 1,153 acresof MCAS Tustin located within the City of Tustin and either conveyed
bythe Navy tothe City or subject to ground lease between the Navy andthe City is referred to in
Tustin Legacy
this Declarationas “”.
1.The City owns a fee interest in certain real property comprising approximately 20.92
acres of land located in the City of Tustin, County of Orange, California and comprising a
portion of Tustin Legacy as legally described on Exhibit 1attached hereto and made a part
LandRetail ParcelHealthcare
hereof(the “”).The Landis further divided into the “”and the “
ATTACHMENT 20City of Tustin/Regerncy Centers DDA
Tustin Regency-_DDA_Attachment_20_(Special_Restrictions) Agd
-1-September 29, 2015
9-28-2015FINAL.Docx
Parcel
”, eachas legally described onExhibit 1. The Retail Parcel and the Healthcare Parcel
shall each be more particularly described in those certain Quitclaim DeedsFor Disposition
Parcel1Cand Covenants, Conditions and Restrictions, Including Environmental Restriction
Pursuant to Civil Code Section 1472made by the City in favor of Developer,and Recorded
Quitclaim Deed
following the recordation of this Declaration(each a “” and collectively, the
Quitclaim Deeds
“”), but specifically(a) excluding therefrom each and every oil, gas, mineral,
water right and all other rightsexpressly reserved to the City as set forth in each such Quitclaim
Reserved
Deed (such reserved rights in their entirety as stated in the Quitclaim Deed, the “
Rights
”)and (b) including therein all improvements, now existing or hereafter constructed,
located on the Development Parcels, and all appurtenances pertaining to the Development
Parcels.
C.The Retail Parcel and the Healthcare Parcel shall be referred to herein collectively
ParcelsDevelopment ParcelsParcel
as the “”or the “”and each individually as a "" or
Development Parcel
"".
D.The City also ownsa fee interest inthat certain real property legally described on
City Benefited Property
Exhibit2attached hereto and made a part hereof (“”)located in the
City of Tustin, County of Orange, California and comprising a portion of Tustin Legacy.The
City Benefited Propertyisproximate to and directly affected by the use and maintenance of the
Development Parcels.
E.The City and Developer entered into that certain Tustin Legacy Disposition and
Development Agreement for Disposition Parcel 1C, dated as of \[\]pursuant to which
Developer has agreed to purchase the Development Parcels from the City upon and subject to the
terms and conditions set forth therein (as the same may hereafter be further amended, modified
DDA
or supplemented in accordance with its terms, the “”). The DDA is evidenced by that
certain Memorandum of Tustin Legacy Disposition and Development Agreement for Disposition
Parcel 1Cdated as of the Effective Date and Recorded\[on \[\], in the Office of theCounty
Official Records
Recorder, Orange County, California (the “”) as Instrument No. \[\]—or—
immediately prior to the Recordation of this Declaration\] (as the same may hereafter be
Memorandum of DDA
amended, modified or supplemented, “”).
F.Upon the Effective Date, Developer is acquiring the {Retail Parcel/Development
Parcels}and has agreed, upon acquisition thereof,to develop the {Retail Parcel/Development
Parcels}asamixed-use commercial project, including development of the Retail Parcel with a
{Delete the following if Regency is only acquiring
neighborhood commercial shopping center.
the Retail Parcel:
and development of the Healthcare Parcel withmedical officesand services,
}NOTE: If only Retail Parcel will be
including certain retail usesand related amenities.{
acquired by Regency at initial close of escrow, delete all provisions in this agreement related to
Healthcare Parcel for the Retail Property Close of Escrow and record solely against Retail
Parcel. At Healthcare Property Close of Escrow, record against Healthcare Parcel inserting
all Healthcare Parcel provisions and deleting all Retail Parcel provisions}
G.The City intends thatDeveloper and all Successor Owners (as defined below)
shall use and maintain the Development Parcelsin accordance with this Declaration and the
Restrictions andfollowing the completion of the Project pursuant to the DDA, as a mixed-use
ATTACHMENT 20City of Tustin/Regency Centers DDA
Tustin Regency-_DDA_Attachment_20_(Special_Restrictions) Agd
-2-September 29,2015
9-28-2015FINAL.Docx
retail and medical use project, as more particularly set forth herein.For purposes of this
Property Owner
Declaration, the term “” shall mean the Developer and each Successor Owner
of the Development Parcels or any portion thereof.
H.To create and preserve the value, desirability and attractiveness of the
Development Parcels, each Property Owner will hereafter hold and convey title to the
DevelopmentParcel or Development Parcels owned by itsubject to those certain protective
covenants, conditions and restrictions set forth herein.
I.The City now desires to impose onthe Development Parcelsthis Declaration, for
the following purposes, among others: (i) to preserve the general plan for the use and
maintenance of Tustin Legacy, including of the Development Parcels, through development and
maintenance of a Class A Project(as defined below)upon the Development Parcels; (ii) to
ensure proper use and maintenance of the Project; (iii) to protect each owner and occupantof any
portion of theDevelopmentParcelsand nearby owners and residents,including the residents of
the City of Tustin, from improper use of the Development Parcels;and (iv) in general, to provide
for a Class A quality of maintenance of theProject, in each case upon and subject to the terms of
this Declaration.
J.This Declaration also sets forth those rights of the City and, upon acquisition of
each Development Parcel,certain obligations of Property Owneras specified in the DDA, each
of which shall remain in full force and effectfor the period provided herein,notwithstanding the
termination of the DDA and/or theRecording by the City of a Certificate of Compliance for all
or any portion of the Project.To the extent that the Development Parcels are acquired in more
than one closing, the acquiring Developer at each Close of Escrow shall assume and be bound by
all of the obligations and liabilities, covenants, conditions, and restrictions contained in this
Declaration.
K.Capitalized terms not otherwise defined herein shall have the meaningsset forth
for such terms on Exhibit4attached hereto and incorporated herein by this reference.
NOW, THEREFORE, the City hereby covenants and declares that the Development
Parcelsarenow held and shall hereafter be held, transferred, conveyed, sold, leased, subleased,
encumbered, mortgaged, used, occupied and improved subject to the covenants, conditions and
restrictions herein set forth in this Declaration,each and all of which is and are for, and shall
inure to the benefit of and pass with, the Development Parcelsand every portion of or interest in
the Project and shall apply to Declarantand each PropertyOwner, to the extent set forth herein,
for the purpose of uniformly enhancing and protecting the value, attractiveness and desirability
of the Development Parcelsand Tustin Legacy in furtherance of a general plan for the protection,
maintenance, subdivision,improvement, sale and lease of Tustin Legacy or any portion thereof.
The covenants, conditions and restrictions set forth in the Declaration shall run with the
Development Parcelsand shall be binding upon Developer and each and every Successor Owner
having any right, titleor interest in the Development Parcelsor any part thereof,and shall inure
to the benefit of the City and the City Benefited Property,and any future owner of any portion of
the City BenefitedPropertyto the extent such future owner is a Governmental Successor.
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The City hereby further declares as follows:
Property Affected by this DeclarationProperty
1..The “”affected by this Declaration is
Development Parcels
comprised of:(a) the “,” as more particularlydescribed in eachQuitclaim
Deed,(b) all improvements, now existing or hereafter constructed, located on the Development
Parcels, and (c) all appurtenances pertaining to the Development Parcels.To the extent that any
Improvements located on the Development Parcels are subject to a ground lease, the ground
lessee under such ground lease shall be solely responsible for the use, operation and maintenance
of such Improvements in accordance with the terms and conditions of the DDA and in
compliance with this Declaration and the Restrictions (defined below)set forth herein as if such
ground lessee were the applicable Property Ownerhereunder,and neither Developer nor the
applicable Property Owner shall have any obligation or liability for any violation or
noncompliance with this Declaration, the Restrictions or the terms of the DDA of such
Improvements to be maintained by such ground lessee.
Covenants, Conditions and Restrictions
2..For the benefit of the City Benefited Property
and the City,and its successors and assigns that constitute a Governmental Authority(ies)
Governmental Successors
owning all or any portion of such City Benefited Property (the “”),
and as an inducement for the City to consummate the transactions contemplated by the DDA, but
subjectto Section 4.2below, the violation of any of the Restrictions (as hereinafter defined) set
forth in this Section 2shall at the City’s optionconstitute a Material Default hereunder and
entitle the City to exercise any of the rights and remedies set forth herein. The covenants,
conditions,restrictionsand agreementsset forth in this Declaration are collectively referred to
Restrictions.
herein as the “”
Use Covenants and Restrictions
2.1..From and after the acquisition of fee titleto
any portion of the Property by Developer or any Successor Owner, Developer and each
Successor Owner shall cause such portion of the Propertyso acquiredto be developed and
utilized only as follows:
(a)The Retail Parcelshall be utilized solely for retail uses including
(i) lawful sales of goods or services,(ii)restaurants, (iii)a gas station with car wash, and
(iv)similar commercial purposestypically included in neighborhood commercial shopping
Retail Uses
centers(“”);providedthat:(A) the Retail Uses are not Prohibited Usesas set forth on
Exhibit3attached hereto,(B) the Retail Uses arealso permitted by the Tustin Legacy Specific
Plan, as the same may be amendedfrom time to time, and other entitlements and approvals of the
City,and(C) Retail Uses may include no more than four (4)drive-through establishments.
Notwithstanding anything to the contrary contained in this Declaration or the Other Agreements,
the City shall have the right to release all or any portion of the Retail Parcel,or any Property
Owner of all or any portion of the Retail Parcel,fromcompliance withthe use restrictions set
forth in this Section2.1(a)by recording a written instrumentexecuted by the City in the Official
Records. In no event shall anysuchrelease as to any portion of the Retail Parcel or as to any
Property Owner constitute a waiver or release of the use restrictions set forth in this
Section2.1(a)as to any other portion of the Retail Parcel or any other Property Owner.
(b)The Healthcare Parcelshall be utilized solely for the following
lawful uses (i) medical-related services includingrehabilitation facilities, skilled nursing
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facilities, urgent care facilities and/or additional medical office uses staffed by doctors, nurses
and/or related practitioners, and related amenities, but specifically excluding stand-alone retail,
Medical Uses
warehousing and manufacturing uses (“”)and (ii)Healthcare Parcel RetailUses,
but specifically excluding grocery uses and stand-alone drug store use, provided such Healthcare
Medical Retail Buildings
Parcel Retail Uses are only permitted in the Buildings identified as “”
onthe Site Plan attached hereto as Exhibit 5, and further, ineach caseprovided that:(A)the
Medical Uses are not Prohibited Usesas set forth on Exhibit3attached hereto,and (B)the
Medical Uses are also permitted by the Tustin Legacy Specific Plan, as thesame may be
amendedfrom time to time, and other entitlements and approvals of the City.Notwithstanding
anything to the contrary contained in this Declaration or the Other Agreements, the City shall
have the right to release all or any portion of the Healthcare Parcel,or any Property Owner of all
or any portion of the Healthcare Parcel,from compliance with the use restrictions set forth in this
Section2.1(b)by recording a written instrument executed by the City in the Official Records. In
no event shall any such release as to any portion of the Healthcare Parcel or as to any Property
Owner constitute a waiver or release of the use restrictions set forth in this Section2.1(b)as to
any other portion of the Healthcare Parcel or any other Property Owner.
(c)Neither Developer nor any Successor Owner,nor any person
claiming by through or under Developer or any Successor Owner including any End User,shall
use the Development Parcelsor any portion thereof for any Prohibited Useorconvey, lease, sell
or otherwise transfer any Development Parcel or any portionthereof to any Person intending to
utilize the Development Parcel for a Prohibited Use.
Class A
(d)The Project shall be designed and constructed as a “
Project
”which shall mean, with respect to (i) the Retail Parcel,a first class retail shopping
center equivalent in terms of constructionand design with the top ten percent (10%) of
neighborhoodcommercial shopping centers in the market area (i.e., within twenty (20) miles)of
the Development Parcelsat the time the Project is constructed on the Retail Parceland
containing no Prohibited Uses,and (ii) the Healthcare Parcel, a first class medical facility
equivalent in terms of constructionand design with the top ten percent (10%) of medical office
centers in the market area (i.e., within twenty (20) miles)of the Development Parcelsat the time
the Project is constructed on the Healthcare Parcel and containing no Prohibited Uses.
(e)In terms of the quality of maintenance, the Project shall be
Class A Standards
maintained consistent with Class A Project standards (“”).
(f)Developer and its Successor Owners and all End Users shall be
subject to this Declaration.
The covenants in this Section2.1shall remain in full force and effect with respect to each
th
Development Parcel until, as to each Parcel, the twenty-fifth (25) anniversary of the Recording
of the last Certificate of Compliance for such Parcel, unless released at an earlier date by the City
in writing, and upon the expiration of such twenty-five(25) year period, the provisions of
Section2.1shall automatically terminateas to such Parcel.
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Maintenance Covenants and Restrictions
2.2..
2.2.1.From and after theacquisition of fee title to all or any portion of the
Development Parcelsby Developer, Developer and its Successor Owners shall maintain such
portion of the Development Parcelsand all Improvements thereon consistent with the following
requirements:
(a)Prior to commencement of construction, each Property Owner shall be
responsible, at its sole cost and expense, (i) to secure and maintain the Development Parcels in a
clean, safe and secure condition, in compliance with all applicable laws, (ii)to abate weeds and
other hazards and nuisances on such portion of the Development Parcels as are not then under
construction,(iii) to erect and maintain barricades and fencing, and provide security, in each case
with respect to the Development Parcelsand as reasonably necessary to protect the public and
any Improvements already constructed, and (iv) to maintain (in compliance with all
Environmental Laws) erosion control onthe Development Parcels.
(b)From the date of commencement and during the continuance of
construction of any Improvements on the Development Parcelsand until Completion thereof,
Property Ownershall maintain theDevelopment Parcelsand the Improvements thereon then
under construction consistent with normal and customary construction industry practice.
(c)From and after the issuance ofa certificate of occupancy for any
Improvements on the Development Parcels,each Property Owner shall maintain all
Improvements on such Property Owner'sParcelsnot then under construction(including any
shared driveways, drive aisles and parking areas located on such Property Owner's Parcel)in a
clean, sanitary, orderly and attractive condition, subject to reasonable wear and tear,and further
subject to Section 2.2.1(d),change or damage by casualty or condemnation. Property Owner
shall be required to meet the standard for the quality of maintenance of the Improvements on the
Development Parcelsrequired by this Section2.2regardless of whether or not a specific item of
maintenance is listed below, except that, in each case, and notwithstanding anything in this
Section2.2to the contrary,no Property Owner shall have any maintenance obligation under this
Declaration with respect to any items owned or controlled by (or on property owned or
maintained by) a utility franchisee, any lighting or landscape district or by the City.
Representative items of maintenance shall include: (i)maintenance, repair and replacement on a
regular schedule, consistent with Class A Standards, of all Improvements; (ii)frequent
andregular inspection for graffiti or damage or deterioration or failure, and reasonably prompt
(or, in the case of graffiti, within 48 hours) repainting or repair or replacement of all surfaces,
fencing, walls, equipment, etc., as necessary; (iii) emptying of trash receptacles and removal of
litter; (iv) regular sweeping of private streets, roadways and sidewalks throughout the
DevelopmentParcels; (v) fertilizing, irrigating, trimming and replacing vegetation as necessary;
(vi) cleaning exterior windows on aregular basis; (vii) painting the Buildings on a regular
program and prior to the deterioration of the painted surfaces; (viii)construction, maintenance,
repair, and replacement as reasonably necessary of all paved surfaces(including painting and
striping), curbs, curb-cuts, gutters, walkways, planters, cart corrals, and medians,curbs, gutters,
directional signs, markers, lighting facilities, including the replacement of fixtures and bulbs,
storm drains and utility lines.
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(d)If a casualty occurs with respect to a Parcel or Improvements
thereon followingRecordingof aCertificate of Compliance by the Cityfor such Parcel,
Developer shall, in its sole discretion, either (i) promptly repair the Improvements and prior to
commencement of such repair maintain the portions of the Development Propertysubject to
casualty in accordance withSection 2.2.1(a)or (ii) if Property Ownerdetermines in its sole
discretion not to repair some or all of the Improvements, maintain the portions of the
Development Propertysubject to casualty in accordance with Section 2.2.1(a).In each case,
upon commencement of any construction with respect to the affected portions of the
Development Propertyand until completion of the repair work, Property Ownershall comply
with the requirements set forth inSection 2.2.1(b)and upon completion of the repair work, shall
comply with the requirements set forth in Section 2.2.1(c). Notwithstanding the foregoing, the
portions of the Development Parcelsunaffected by any such casualty shall be maintained as
otherwise required by this Declaration, including pursuant toSection 2.2and unless not
economically feasible due to cost or physical proximity as demonstrated to the reasonable
satisfaction of the City, PropertyOwnershall provide landscaping or other barriers to shield the
portions of the Development Parcelsremaining in use and adjacent public roadways from those
subject to casualty and from adjoining streets in order to maintain the Class A standards imposed
by this Declaration upon the unaffected portions of the Development Parcelsand the
Improvements thereon as required pursuant toSection 2.2.1(c).
(e)If aProperty Owner fails to maintain the Improvements or
landscaping located onits Parcel or any portion thereof in accordance with the requirementsof
this Declaration and the same constitutes a Material Default by such Property Owner hereunder,
the City or its designee shall have the right,but not the obligation,subject to applicable notice
and cure provisions set forth in Section4.2below, to enter suchParcelupon reasonable notice to
Property Owner, correct such failure, and hold PropertyOwner responsible for the cost thereof
and such cost, until paid, shall constitute a lien on the applicable portion of suchParcelas and to
the extent described in Section4.
Maintenance of Easement Areas
2.2.2.. Each Property Owner shall cause
to be constructed and shall operate, manage, and maintain (or shall cause to be operated,
managed and maintained) any easement areas located on such Property Owner's Parcelfor which
it is responsible and the Improvements thereon in a state of good repair, free of trash and debris
and in a Class A Standard. The duties of each such Property Owner shall include, without
limitation, the following, which shall be carried out in accordance with all Governmental
Requirements:
(a)construction, maintenance, repair, and replacement of all paved
surfaces, in a level, smooth, and evenly covered condition, and repair and/or replacement thereof
with the type of surfacing material originally installed, or such substitute as shall in all respects
be at least equal to such original material in quality, use, appearance, and durability;
(b)construction, maintenance, repair, and replacement as reasonably
necessary, of all curbs, curb-cuts, gutters, walkways, planters, cart corrals, and medians;
(c)painting and striping;
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(d)construction, maintenance, repair, and replacement of all
directional signs, markers, lighting facilities, including the replacement of fixtures and bulbs;
(e)construction, maintenance, repair, and replacement of any and all
storm drains, storm water retention facilities, utility lines, water lines, sewers, and other utility
systems; it being understood that where repairs are necessary to prevent disruption of service to
any Owner, such repairs shall be undertaken immediately and without prior notice; and
(f)maintenance of all landscaped areas and replacement of shrubbery,
plantings, and flowers.
Cost ofMaintenance
2.2.3.. All costs incurred in fulfilling the obligations
in Section2.2.1and Section2.2.2with respect to the Development Parcelsshall be paid by the
applicable Property Owner of the affected Parcel.Nothing in this Declaration shall prohibit two
or more Property Owners from entering into a separate agreement to share the costs for
performing the maintenance of Improvements on more than one of the Development Parcels.
Term of Covenants
2.2.4..The covenants inthisSection2.2shallremain in
full force and effect with respect to each Development Parcel until the date which is theearlier of
(a)theRecording of CC&Rs approved by the City against the entirety of the Development
Parcels that address the maintenance of the Development Parcels, in which event the termination
of this Declaration shall be effective automatically upon the Recording of such CC&Rs,or (b)as
th
to each Parcel, the twenty-fifth (25) anniversary of the Recording of the last Certificate of
Compliancefor such Parcel,unless released at an earlier date by the City in writing, and upon
the expiration of such twenty-five(25)year period,the provisions of Section2.2shall
automatically terminateas to such Parcel.
Design of the Project
2.3.. Developer acknowledges that the City may now or
hereinafter be negotiating with various other developers for the transfer of other portions of
Tustin Legacy to such other developers, and through the Specific Plan, intends to coordinate the
design and development of the entirety of Tustin Legacy. Accordingly, Developer and each
Successor Owner shall comply with the Specific Plan and the Entitlements (as and to the extent
required by the DDA and the Development Agreement for the Project between Developer and
the City) in connection with its development of the Project and the Development Parcels.
Obligation to Refrain from Discrimination
2.4.. There shall be no discrimination
against or segregation of any person, or group of persons, on account of sex, race, color, religion,
ancestry, national origin, disability, medical condition, marital status, or sexual orientationin the
sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property or in development of
the Project, nor shall any Property Ownerestablish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees of the Development Property or in
development ofthe Project.
No Obligations
2.5..Nothingin this Declaration shall obligate the City to
(a)exercise its approval or enforcement rights with respect to the covenants set forth inthis
Section 2or(b)to develop or cause the development of Tustin Legacy or any portion thereof to
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proceed in accordance with the Tustin Legacy Specific Plan or any other plan, entitlement,
program, policy or agreement, for the benefit of the City or any third parties.
DDA Provisions
2.6.. Pursuant to the DDA, the City has imposed certain covenants,
conditions and restrictions on the Development Parcels,including the releases contained in
Section4.5.2(f)of the DDA(which shall be set forth in their entirety in the Quitclaim Deeds),
and certain environmental indemnityand environmental provisions, each of which is set forth
verbatim below in italics and each of which is hereby declared to be a covenant running with the
land, binding Developer and each SuccessorOwner in perpetuityexcept as otherwise set forth
herein. Within the italicized language which follows, certain terms shall have the following
meaningsand the remaining terms shall have the meanings set forth in this Declaration including
Exhibit 4hereto: the term “Agreement” shall mean the DDA, the term “Developer” shall mean
the Developer and each and every Successor Owner as defined in this Declaration; the term
“City” shall mean the City as defined in this Declaration; the term “Agreement” shall mean the
DDA; the term “Close of Escrow” shall mean as to each Parcel the recordation of the Quitclaim
Deedfor such Parcel;the term “Closing Date” shall mean as to each Parcel, the date of
recordation of the Quitclaim Deed for such Parcel; the term “Property” shall mean the
“Development Parcels” as defined in this Declaration; the term “Retail Property” shall mean the
“Retail Parcel” as defined in this Declaration; “Project” shall mean the “Project” as defined in
this Declaration; the term “Quitclaim Deed” shall mean each “Quitclaim Deed” as defined in this
Declaration; and the term“City Benefited Property” shall mean the “City BenefitedProperty” as
defined herein.All other terms used and not defined in this Section or elsewhere in this
Declaration shall have the meanings set forth in Exhibit 4 hereto.During the term of the DDA,
in the event of a conflict between the terms of the DDA and the terms of this Section 2.6, the
terms of the DDA shall govern.
Indemnity.as
2.6.1.Section 10.1of the DDA provides follows:
10.1Developer’s Indemnification.
As a material part of the consideration
for this Agreement, to the maximum extent permitted by law, until the date
that is the tenth (10th) anniversary of the Recording of the respective
Certificate of Compliance each Developer, on behalf of itself and each
Successor Owner, hereby agrees that during the period that Developer or a
Successor Owner owns a portion of the Property . . ., such party shall
indemnify, protect, defend, assume all responsibility for and hold harmless the
City and its appointed and elected officials, agents, attorneys, affiliates,
employees, contractors, consultants, and representatives (collectively referred
to as the “City Indemnified Parties”), with counsel reasonably acceptable to
the City, from and against any and all Claims resulting or arising from or in
any way related to the following:
(a)The marketing, sale or use of the Property owned by such party in any
way;
(b)All acts and omissions of Developer, any of the Developer
Representatives or Developer’s Tenants under any Ground Lease or Space
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Lease in connection with the Project, the Property, or any portion of any of
the foregoing;
(c)Any plans or designs for Improvements prepared by or on behalf of
Developer or its Ground Lessees or Space Tenants including any errors or
omissions with respect to such plans or designs;
(d)Any loss or damage to the City resulting from any inaccuracy in or
breach of any representation or warranty of Developer or resulting from any
Default, including Material Default, by Developer under this Agreement;(e)
The non-performance or breach by Developer, the Developer
Representatives or Developer’s Tenants under any Ground Lease or Space
Lease of any term or condition of this Agreement; and
(f)Any development or construction of any Improvements by Developer,
the Developer Representatives, or Developer’s Tenants under any Ground
Lease or Space Lease whether regarding the quality, adequacy or suitability
of the plans, any labor, service, equipment or material furnished tothe
Property, any Person furnishing the same, or otherwise.
Environmental Indemnity.
2.6.2.Section 10.2of the DDA provides as
follows:
Developer’s Environmental Indemnification
10.2. As a material part of
the consideration for this Agreement, and effective as to the Property upon
Developer’s acquisition of fee title to all or any portion thereof, Developer on
behalf of itself and Successor Owners and each and every Person claiming by,
through or under Developer or any Successor Owner, hereby agrees that
Developer and each Successor Owner shall, to the maximum extent permitted
by law, indemnify, protect, defend (with counsel reasonably acceptable to the
City), assume all responsibility for and hold harmless the City Indemnified
Parties from and against any and all Claims resulting or arising from or in
any way related to the existence, Release, threatened Release, presence,
storage, treatment, transportation and/or disposal of any Hazardous
Materials on, in, under, from, about or adjacent to any portion or portions of
said lands, regardless whether any such condition is known or unknown now
or upon acquisition and regardless of whether any such condition pre-exists
acquisition or is subsequently caused, created or occurring and regardless of
how or by whom caused; provided that neither Developer nor any Successor
Owner shall be responsible (and such indemnity shall not apply) to the extent
of (a)the gross negligence, fraud or willful misconduct of the City
Indemnified Parties, or (b)to the extent of the active negligence or willful
misconduct of the City or any City Indemnified Parties with respect to
Hazardous Materials occurring prior to the Close of Escrow for a Parcel with
respect to work performed on such Parcel. This environmental indemnity
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shall be included in the Quitclaim Deed for each component of the Property
provided that such indemnity (x)shall not be binding upon Tenants who are
End Users under Ground Leases or Space Leases and (y)shall not be deemed
to limit in any manner the rights and/or remedies that Developer may have
against the Federal Government. Without limiting Developer’s obligations
under this Section10.2, Developer agrees to use its commercially reasonable
efforts to include within any Ground Leases or Space Leases for the Retail
Parcel, or to cause Healthcare Developer to include within any Ground
Leases or Space Leases for the Healthcare Parcels, an indemnification from
the lessee under Ground Leases or such Space Leases for Developer’s and the
City’s benefit pursuant to which such lessee will indemnify, defend and hold
harmless Developer and the City with respect to the Release of any Hazardous
Materials during its Lease term.”
Claims Response
2.6.3..Section 10.4of the DDA provides as follows:
Claim Response
“10.4.In the event that following the Retail Property Close
of Escrow, any Environmental Agency or other third party brings, makes,
alleges, or asserts a Claim, arising from or related to any actual, threatened,
or suspected presence or Release of Hazardous Materials on or about the
Property or Parcel or any Improvements thereon, including any Claim for
Investigation or Remediation on the Property or such Improvements, or such
Environmental Agency or other third party orders, demands, or otherwise
requires that any Investigation orRemediation be conducted on the Property
or Parcel or with respect to Improvements thereon, Developer shall promptly
upon its receipt of notice thereof, notify the City in writing and thereafter shall
promptly and responsibly evaluate and respond to such Claim as provided in
Section 10.5 below. Further, upon receipt of such Claim, order, demand or
requirement, Developer shall take such reasonable measures, as necessary or
appropriate, to reasonably dissuade such Environmental Agency or other
third party from bringing, making, alleging, or asserting any Claim against
the City arising from or related to the presence or any actual, threatened, or
suspected Release of Hazardous Material on or about the Property, Parcel or
such Improvements, including any Claimfor Investigation or Remediation on
the Property, Parcel or Improvements; provided, however, that such
obligation shall not apply to those excluded Claims identified in clauses (a)
and (b) in Section 10.2.”
Release Notification and Remedial Actions
2.6.4..Section 10.5of the
DDA provides as follows:
Release Notification and Remedial Actions
“10.5.If, after the Close of
Escrow with respect to a component of the Property or the Development
Parcels, there presence or any Release of a Hazardous Material is discovered
on such Property or Parcel or any Improvements thereon, and regardless of
the cause, Developer shall with respect to the Property, Parcel and/or
Improvements promptly provide written notice (or in the event of emergency,
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telephonic notice, followed by written notice) of any such Release to the City.
To the extent that any Environmental Agency (other than the City) is requiring
that the City Remediate any pre-existing condition or Release and the
Developer acknowledges that it is obligated to assume responsibility or
indemnify the City with respect to such Release pursuant to Section 10.2 or
there is a good faith dispute between the City and Developer as to whether
Developer is obligated to assume responsibility or indemnify the City with
respect to such condition or Release pursuant to Section 10.2, then Developer
shall (a) Remediate the condition or Release in compliance with and to the
extent required by Environmental Laws and such Environmental Agency, or if
such removal is prohibited by any Environmental Laws, take whatever action
is required by any Environmental Law and such Environmental Agency; (b)
take such other reasonable action as is necessary to have the full use and
benefit of the Property as contemplated by this Agreement; and (c) provide the
City with satisfactory evidence of the actions taken as required in this Section.
To the extent that any Environmental Agency (other than the City) is requiring
that the City Remediate such condition Release and the City acknowledges
that Developer is not obligated to assume responsibility or indemnify the City
with respect to such conditionor Release pursuant to Section 10.2 or no
Environmental Agency (other than the City) is requiring that the City
Remediate such condition or Release, then (as between Developer and the
City under this Agreement) Developer may elect in its sole discretion whether
to Remediate such condition or Release and/or pursue any rights that
Developer has against any Person (including the Federal Government and the
City) with respect to such condition or Release. The foregoing shall be
without prejudice to Developer’sor the City’s rights against any responsible
party or against the Federal Government pursuant to the Navy
Responsibilities and without compromising the applicability of any insurance
coverage in regard to such Release. The City and Developer will coordinate
any remediation action with appropriate environmental insurance carriers so
as not to compromise coverage for the costs of such actions. Nothing set forth
herein requires Developer to perform any obligation of the Federal
Government and nothing set forth herein shall be deemed to limit or impair
(or take any action that might limit or impair) in any manner the rights and/or
remedies that Developer or City may have against the Federal Government or
any other rights and/or remedies of Developer.”
Conflict with Section 330 and Other Federal Government
2.6.5.
Obligations
.Section 10.6of the DDA provides as follows:
Conflict with Section 330 and Other Federal Government
“10.6
Obligations
. Notwithstanding anything to the contrary contained in this
Section 10, in the event that any actions required to be taken by Developer
pursuant to this Section 10\[of this Agreement\]could potentially result in
Developer losing rights, or are contrary to any rights, which it otherwise
would have pursuant to Section 330, Fiscal Year 1993, National Defense
Authorization Act Public Law 102-484 or otherwise against the Federal
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Government, then the City and Developer shall meet in order to determine the
proper course of action to be taken by Developer. The course of action to be
agreed upon shall protect the City’s interest in the Project and Tustin Legacy,
while retaining for Developer its rights pursuant to Section 330 or otherwise
against the Federal Government to the maximum extent reasonable under the
circumstances. Notwithstanding the foregoing, nothing set forth in this
Section 10.6 relieves Developer with respect to Developer’s environmental
responsibilities and obligations and environmental indemnification of
Developer to the City in this Agreement.”
Enforcement of Covenants.
3.
3.1.General Purpose and Constructive Notice.This Declaration and theRestrictions
shall run and pass with each and every portion of the Development Parcels and be binding upon
each PropertyOwnerand each and every Person claiming by, through or under such Property
Owner, for the following terms:(a) with respect to the Restrictions set forth in Sections 2.1and
2.2, for the time periods set forth in Section 2.1and 2.2,respectively,(b) with respect to the
indemnity set forth in Section 2.6.1 (Section 10.1 of the DDA) for the time period set forth
thereinand(b) with respect to all other Restrictionsset forth herein, in perpetuity. These
Restrictions shall benefit the City Benefited Propertyand the City shall retain the right to enforce
the restrictions and equitable servitudes against the Development Parcelsand the same shall be
enforceable solely by the City notwithstanding any future transfer of the City Benefited Property
and/or any interest therein or portion thereof; provided that no private right of action shall exist
or be implied by the existence of this Declaration. Except as specifically set forth herein, the
Restrictions shall remain in full force and effect for the periodsof time specified herein with
respect thereto, notwithstanding the City’s exercise of any right or remedy herein. Subject to the
time limitations set forth herein, each Successor Owner that now or hereafter owns or acquires
any right, title or interest in or to any portion of the Development Parcelsis and shall be
conclusively deemed to have consented to and agreed to every Restriction, provision, covenant,
condition, right and limitation contained herein, whether or not any reference to this Declaration
is contained in the instrument by which such Successor Owner acquired such interest in the
Development Parcelsor any portion thereof.
3.2.Transfers and Transfers of Control.Notwithstanding anything to the contrary in
this Declaration, except as set forth below, in the event that any PropertyOwner conveys all or
any portion of the Development Parcelsto another Person, the PropertyOwner conveying all or
such portion of the Development Parcelsshall be released from the obligations of this
Declaration first occurring from and after the effective date of such conveyance to another
Person; provided, however,that (a) the foregoing shall not be construed to permit any Transfer
or Transfer of Control (each as defined in the DDA) by the Property Owner of the Healthcare
Parcel or the Retail Parcel or any portion thereofprior to the Recordingof a Certificate of
Compliance for such Parcel except as expressly permitted bythe DDA, (b) during the term of the
DDA, notwithstanding any Transfers and/or Transfers of Control, no Property Owner shall be
released with respect to matters for which it remains liable pursuant to the DDA, and unless
specifically released by the City in writing, each Property Owner shall remain fully liable for the
obligations ofsuch Property Owner under this Declaration for such period as it is aProperty
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Owner and, during the term of the DDA,for such longer period as may be applicable to it during
the any Additional Liability Period(as defined in the DDA)underthe DDA.
Inspection
3.3.. Uponforty-eight (48) hours’ prior telephonic, electronic mail or
written notice, or such longer period as may be explicitly set forth in this Declaration, and
subject to reasonable security provisions of the applicable Property Ownerand any rights of such
Property Owner’s tenants, and in addition to any rights that the City may have in its
governmental capacity, the City and its authorized representatives may from time to time enter
upon and inspect the Development Parcelsor any portion thereof or any Improvements thereon
for purposes of ascertaining compliance with the Restrictions, but without obligation to do so.
Other Restrictions
3.4.. This Declaration and the Restrictions contained herein are
not the exclusive source of restrictionson the use and maintenance of the Development Parcels.
Nothing contained herein shall prejudice or diminish in any way the City’s rights under the DDA
or any Other Agreements or itsauthority in its governmental capacity, nor the rights and
authority of any other Governmental Authority having jurisdiction over the Project or any
portion thereof, and the exercise of any rights or remedies by the City hereunder shall be
considered separate from and independent of any breach or violation by Property Ownerwhich is
also a breach or violation of any Governmental Requirements.
Potential and Material Defaults
4.. In the event of any breach, violation or failure to
perform or satisfy any of the Restrictions which has not been cured within the applicable cure
period set forth below, the City may in its sole discretion enforce any one or more of the
remedies set forth in Section4.3.
Potential Defaults.
4.1.Except as otherwise provided in this Declaration, it shall be a
Potential Default
“” if:
(a)Property Ownerfails to pay timely any sum required to be paid to
the City pursuant to this Declaration; or
(b)Property Ownerfails to perform, or delays in the performance of,
in whole or in part, any obligation required to be performed under, or otherwise violates the
provisions of this Declaration, other than as set forth in Section4.1(a).
Material Defaults
4.2..
Material
(a)A Potential Default under Section4.1(a)shall become a “
Default
” if it is not cured within fifteen (15) calendar daysafter receipt by the defaulting
Property Ownerof the written notice of Potential Default from the City.
(b)A Potential Default under Section4.1(b)shall become a
MaterialDefault
“” if it is not cured, at such defaulting Property Owner’sexpense, (i)within
thirty (30) calendar days after the date ofreceipt by the defaulting Property Ownerof written
notice of such Potential Default from the City;(ii) if such cure cannot be reasonably
accomplished within such thirty(30) calendar day period, within ninety (90)calendar days after
receiving written notice of such Potential Default from the City, but only if the defaulting
Property Ownerhas commenced such cure within such thirty (30) calendar day period and
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diligently pursues such cure to completion, or (iii) within such longer period of time as may be
expressly granted by the City in the City’s reasonable discretion, taking into account the nature
of the Potential Default and the diligence and good faith efforts of the defaulting Property
Owner, as applicable,to cure such Potential Default. The time periods set forth in this
Section4.2(b) to cure a Potential Default shall be extended by Force Majeure Delay.
(c)Following written notice and failure to cure within the time periods
set forth in this Section 4.2, each Potential Default shall become a Material Default that shall be
deemed to have occurred upon the expiration of the applicable cure period.
Certain City Remedies
4.3.. In the event of a Material Default, subject to the
Mortgagee cure rights set forth in Section4.5 below,and without limiting the rights and
remedies of the City under the DDA, if then in effect, and any Other Agreement, the City may do
any or all of the following:
(a)The City may bring a suit for damages for any compensable breach
of or noncompliance with any of the Restrictions, or declaratory relief to determine the
enforceability of any of the Restrictions; provided, however,that (i)such damages shall be
limited to direct (actual) damages to the City for such Material Defaultand (ii)the City hereby
expressly waives, releases and relinquishes any and all right to any expectation, anticipation,
indirect, consequential, exemplary and punitive damagesand/or
(b)The City may bring an action in equity or otherwise for specific
performance to enforce compliance with the Restrictions or an injunction to enjoin the
continuance of any such breach or violation thereof, whether or not the City exercises any other
remedy set forth herein, and Property Owneracknowledges that a particular or ongoing violation
of one or more of the Restrictions may cause the City to suffer material injury or damage not
compensable in money (including irreparable effects on the type and quality of development on
the City Benefited Property, Tustin Legacyor portions thereof, and/or the maintenance of the
Development Property, including without limitation,the Improvements in accordance with the
standards(s) for the quality of maintenance set forth in Section2.2.1;and/or
(c)Any Material Default of the Restrictions or any provision hereof is
hereby declared to be a nuisance, andtheCity shall be entitled to enter the Development Parcels
and summarily abate and remove, without further legal process to the maximum extent permitted
by law, any structure, thing or condition that may exist in violation of any of these Restrictions,
or to prosecute any remedy allowed by law or equity for the abatement of such nuisance against
any person or entity acting or failing to act in violation of the Restrictions, all at the sole cost and
expense of Property Owner. Such rights shall include without limitation, the right of the City or
its designee to enter the Development Parcelsand to correct any Material Default by Property
Ownerin the maintenance of the Improvements or landscapingon the Development Parcelsin
accordance with the Restrictions.
Failure to Timely Pay Amounts Due
4.4.. If there is a monetary Material Default
under this Declarationthen,in addition to any other remedies conferred upon the City pursuant
to this Declaration, the defaulting Property Ownershall pay to the City, in additionto all
principal amounts due, interest from the date of such payment or part thereof was due until the
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date paid at the default rate of eight percent (8%) per annum, compounded annually, but in no
event in excess of the maximum legal rate.
Rights of Mortgagees and Mortgagee Protection
4.5..
(a)No breach or violation of the Restrictions shall defeat or render
invalid the lien of any mortgage, deed of trust or similar instrument securing a loan made in good
faith and for value with respect to the permanent financing of the Project or any portion thereof
on a Parcel following Recordingof a Certificate of Compliancefor such Parcel; provided,
however, that this Declaration and all provisions hereof shall be binding upon and effective
against Developer and each and every Successor Owner of such Parcel or portion thereof whose
title is acquired by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise, but
(i)such subsequent owner shall have a reasonable time after acquiring title in which to cure any
violations or correct and change any facts giving rise to the City’s rights under this Declaration
occurring prior to such transfer of title or occupancy and which are reasonably capable of being
cured or changed provided that such Successor Owner diligently acts to effect such cure or
change (and in the event of such diligent and timely cure, such Successor Owner shall have no
further liability in connection with such prior violation or the continued existence of such
violation until such cure is completed), and (ii)Sections 4.1(a) and 4.1(b)shall not be applicable
as to such Successor Owner with regard to any non-curable default occurring prior to the time
such Successor Owner acquired title. Notwithstanding the foregoing, each Successor Owner
shall be required to use the Parcel in accordance with the restrictions set forth in Section2.
(b)If Developer or a Successor Owner grants a mortgage to a
mortgagee, such mortgagee may inform the City of the existence of such mortgage by delivering
written notice to the City confirming the existence of the mortgage on the Property in favor of
Identified
such mortgagee, together with the mailing address for such mortgagee (an “
Mortgagee
”). Prior to the Recordation of the Certificate of Compliance there shall be only one
Identified Mortgageewith respect to the Healthcare Parcel, which shall be the Permitted
Mortgagee under the DDA,and no Permitted Mortgagees with respect to the Retail Parcel
without the prior written consent of the City in its sole discretion.
(c)If there is a Material Default by Developer or a Successor Owner,
the City shall not exercise any of its remedies under Section 4.3until the expiration of the cure
period provided to Identified Mortgagees under this Section 4.5.
(d)At any time after a Potential Default by Developer or Successor
Owner, the City shall deliver written notice to each Identified Mortgagee, stating that a Potential
Default has occurred, and if such Potential Default has become a Material Default by the date of
Noticeto Mortgagee
the notice, that a Material Default has occurred (a “”). Each Identified
Mortgagee shall have a cure period of ninety (90) days in addition to the cure period provided to
Mortgagee Cure Period
Developer pursuant to Section 4.2above (the “”), which cure period
shall commence on the date that is the later of (i) the date of the Notice to Mortgagee and (ii) the
date of the Material Default, during which the Identified Mortgagees may cure the Material
Default.
(e)No mortgagee shall have the right to use the failure of the City to
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provide a Notice to Mortgagee to any other mortgagee as a claim, defense or estoppel to
application of these provisions with respect to the first such mortgagee.
(f)Each mortgagee shall have the right, but not the obligation, during
the Mortgagee Cure Period to cure a Material Default, including the payment of any amounts due
to the City, to make any repairs or improvements, to do any other act or thing required of
Developer under this Declaration or which may be necessary and proper to be done in the
performance and observance of this Declaration to rectify a Potential Default or a Material
Default.
Lien Rights
4.6.. The delinquent amount of any payments due hereunder, together
with any late charges or interest due on any such delinquent payment, reasonable attorneys’ fees,
experts’ fees and consultants’ fees and collection costs related to such delinquent payment shall,
to the greatest extent permitted by applicable law, be a lien and charge upon the Development
Parcels and shall be a continuing lien upon the Development Parcels in favor of the City;
provided that such lien and charge shall at all times be subordinate to the lien and charge of any
Permitted Mortgage upon the Property given to a bona fide lender for value.
Priority of Declaration
4.7..This Declaration,exceptthe lien rights of the City
described in Section 4.6, shall be superior in priorityto all Mortgages.Notwithstanding the
foregoing, no breach or violation of the Restrictions shall defeat or render invalid the lien of any
Mortgageor similar instrument securing a loanmade in good faith and for value with respect to
the permanent financing of the Project or any portion thereof; provided, however,that this
Declaration and all provisions hereof shall be binding upon and effective against each Property
Owner and each andeveryother occupant of the DevelopmentParcelsor portion thereof whose
title is acquired by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise, but (such
subsequent ownershall have a reasonable time after acquiring title in which to cure any
violations or correct and change any facts giving rise to the City’s rights under this Declaration
occurring prior to such transfer of title or occupancy and which are reasonably capable of being
cured or changed provided that such PropertyOwner diligently acts to effect such cure or change
(and in the event of such diligent and timely cure, such PropertyOwner shall have no further
liability in connection with such prior violation or the continued existence of such violation until
such cure is completed). Notwithstanding the foregoing, each PropertyOwner shall be required
to use the DevelopmentParcelsin accordance with the Restrictions set forth in this Declaration.
No Damages Payable by City
4.8.. The City would not have executed this
Declarationif the City could become liable for damages under or with respect to this
Declaration, the DDA or the Other Agreements. Consequently, and notwithstanding any other
provision of this Declaration, except as specifically set forth in Section 18.5.3 of the DDAfor the
term thereof, the City shall not be liable in damages under this Declaration, the DDA or any
Other Agreement to Property Owner, or any Person claiming by, through or under such Property
Owner and by acceptance of this Declaration, Developer, on behalf of itself and each Successor
Owner, hereby expressly waives, releases, and relinquishesany and all rights to claim damages
of any kind or nature from the City except, during the term of the DDA, as set forth inSection
18.5.3of the DDA, including without limitation, any and all right to any expectation,
anticipation, indirect, consequential, exemplary and punitive damages.
ATTACHMENT 20City of Tustin/Regency Centers DDA
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Miscellaneous
5..
Modification
5.1..From and after the transfer of fee title to the Development Parcels
to Developer, noamendment,change, modification or supplement to this Declaration shall be
valid and binding unless (a) it is represented in writing and signed by (i) the City, as the first
party, and (ii) Developer and/or any Successor Owners then owning any portion of the
Development Parcelsor any interest in the Project, as the second parties; provided such
instrument is signed by the first party and all of the second parties then holding an interest in the
Development Parcelsand/or the Project, and (b) is duly recorded in the Official Records. This
Declaration shall be administered by the City Managerof the City.Any matter to be approved
by the City shall be deemed approved, and any action to be taken by the City shall be deemed
taken, upon the written approval by the City Manager (or his or her designee). The City
Manager or his or her designee shall have the authority to issue interpretations with respect to
this Declaration and to determine whether any action requires the approval of the City Council.
Applicable Law
5.2.. This Declaration shall be governed by, interpreted under,
construed and enforced in accordance with the laws of the State of California, irrespective of
California’s choice-of-law principles.
Attorneys’ Feesand Costs.
5.3.In the event any legal or equitable action or
proceeding shall be instituted between the City and Developer or any Successor Owner relating
to this Declaration, the Party prevailing in such action shall be entitled to recover from the losing
Party all of its costs, including court costs and reasonable attorneys’fees.
Conflict of Interest
5.4.. No appointed or elected official or employee of the City
shall have any personal interest, direct or indirect, in this Declaration nor shall any official or
employee participate in any decision relating tothe Declaration which affects his or her interests
or the interests of any corporation, partnership, or association in which he or she is directly or
indirectly interested. Developer warrants that it has not paid or given and will not pay or give
any third person any money or other consideration for obtaining this Declaration.
Non-liability of City Officials and Employees
5.5.. No elected or appointed official,
representative, employee, agent, consultant, legal counsel or employee of the City shall be
personally liable under this Declaration.
Construction and Interpretation of Declaration
5.6..
(a)The language in all parts of this Declaration shall in all cases be
construed simply, as a whole and in accordance with its fair meaning and not strictly for or
against any Person.
(b)Any provision of this Declaration that is deemed to be illegal,
invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to
the extent of the invalidity or unenforceability of such provision and shall bedeemed stricken
from this Declaration. Any stricken provision shall not affect the legality, enforceability or
validity of the remainder of this Declaration. If any provision or part thereof of this Declaration
is stricken in accordance with the provisions of this Section, then the stricken provision shall be
replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in
ATTACHMENT 20City of Tustin/Regency Centers DDA
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tenor and intent to the stricken provision as is legally possible.
(c)The captions of the sections and subsections in this Declaration are
inserted solely for convenience and under no circumstances are they or any of them to be treated
or construed as part of this instrument.
(d)References in this instrument to “this Declaration” mean, refer to
and includethis instrument as well as any riders, schedules, exhibits, addenda and attachments
hereto (which are hereby incorporated in this Declaration by this reference). Any references to
any covenant, conditions, obligation and/or undertaking, “herein,” “hereunder,” or “pursuant
hereto” (or language of like import) shall mean, refer to and include the covenants, obligations
and undertakings existing pursuant to this Declaration and any riders, schedules, exhibits,
addenda, attachments or other documents affixed to this instrument.
(e)As used in this Declaration and as the context may require, the
singular includes the plural and vice versa and the masculine gender includes the feminine and
vice versa.
(f)As used in this Declaration the words “include” and “including”
mean respectively “include, without limitation” and “including, without limitation”.
(g)Unless otherwise indicated, references in this Declaration to
sections, paragraphs, clauses, exhibits, attachments and schedules are to the same contained in or
attached tothis Declaration.
Time of Essence
5.7.. Time is of the essence with respect to all provisions of this
Declaration in which a definite time for performance is specified.
Counterparts
5.8.. This Declaration may be executed in two or more separate
counterparts, eachof which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This
Declaration shall not be effective until the execution by the City and Developer of at least one set
of counterparts. Any one of such completely executed counterparts shall be sufficient proof of
this Declaration.
Estoppel
5.9.. City shall, from time to time upon not less than twenty (20) calendar
days’ notice from Property Owner, but not more often thanannually unless in connection with a
sale or refinancing of the Development Parcelsand/or Improvements, execute and deliver to
Property Ownera certificate in recordable form stating that this Declaration is unmodified and in
full force and effect or, ifmodified, that this Declaration is in full force and effect, as modified,
and stating the modifications and stating whether or not, to the actual knowledge of the City
Manager (and without duty of inquiry), (a) a Potential Default or Material Default by Property
Ownerhas occurred and is continuing and (b) if a Potential Default or Material Default by
Property Ownerhas occurred and is continuing, specifying the same. Any such certificate may
be relied upon by Property Owneror any prospective purchaser or lender of Property Owner.
Property Ownershall promptly pay to the City all of the City’s actual out of pocket third party
expenses, including legal fees, and staff costs incurred with respect to the preparation, review,
and delivery of each Cityestoppel, provided that suchexpenses, fees andcosts shall not exceed
ATTACHMENT 20City of Tustin/Regency Centers DDA
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Five Thousand Dollars ($5,000.00) with respect to any single estoppel.
Force Majeure ProceduresFirst Party
5.10.. If any party (the “”) believes that it is
entitled to an extension of time due to Force Majeure Delay, it shall notify the other party (the
Second Party
“”) in writing within ninety (90) calendar days from the date upon which the First
Party becomes aware of such Force Majeure Delay, generally describing the Force Majeure
Delay and its date of commencement. Upon written request from the Second Party, the First
Party shall promptly provide the following information with respect to such Force Majeure
Delay: a more detailed description of the Force Majeure Delay, when and how the First Party
obtained knowledge thereof, the steps the First Party anticipates taking to respond to such Force
Majeure Delay, and the estimated delay resulting from such Force Majeure Delay and response
and such other information as the Second Party may reasonable request. The extension for Force
Majeure Delay shall be granted or denied in the Second Party’s reasonable discretion. If the
First Party fails to notify the Second Party in writing of its request for a given Force Majeure
Delay within the ninety (90) calendar days specified above, there shall be no extension for such
Force Majeure Delay.
\[signatures on next page\]
ATTACHMENT 20City of Tustin/Regency Centers DDA
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IN WITNESS WHEREOF, the City has executed this Declaration as of the date first set
forth above.
CITY OF TUSTIN:
Dated:___________________By: ___________________________________
Jeffrey C. Parker, City Manager
ATTEST:
Erica N. Rabe,City Clerk
APPROVED AS TO FORM
By:
David Kendig,
City Attorney
APPROVED AS TO FORM
By:_____________________________
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
Special Tustin Counsel
By: _____________________________
Amy E. Freilich
\[signatures continued on next page\]
ATTACHMENT 20City of Tustin/Regency Centers DDA
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BY EXECUTING THIS DECLARATION OF SPECIAL RESTRICTIONS FOR
DEVELOPMENT PARCEL 1C
, DEVELOPER ACKNOWLEDGES AND AGREES THAT,
UPON OBTAINING TITLE TO THE PROPERTY, DEVELOPER SHALL ASSUME AND BE
BOUND BY ALL OF THE OBLIGATIONS AND LIABILITIES, COVENANTS,
CONDITIONS, AND RESTRICTIONS HEREIN:
DEVELOPER:
1C TUSTIN LEGACY, LLC,
aDelaware limited liability company
By:Regency Centers, L.P.,
a Delaware limited partnership,
Its Sole Member
By:Regency Centers Corporation,
a Florida corporation,
Its General Partner
Date: ____________________
By: ________________________
Name: John Mehigan
Title: Vice President
\[Notary Acknowledgements on Next Page\]
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged tome that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of ______________________)
On _________________________, before me,,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
ATTACHMENT 20City of Tustin/Regency Centers DDA
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EXHIBIT1
LEGAL DESCRIPTION OF LAND
\[To Be Attached\]
ATTACHMENT 20City of Tustin/Regency Centers DDA
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EXHIBIT 2
LEGAL DESCRIPTION OF CITY BENEFITED PARCEL
\[To Be Attached\]
ATTACHMENT 20City of Tustin/Regency Centers DDA
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EXHIBIT 3
PROHIBITED USES
\[attach Attachment 19 from DDA here\]
ATTACHMENT 20City of Tustin/Regency Centers DDA
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EXHIBIT4
DEFINED TERMS
\[Note: Parties to add other applicable definitions from DDA prior to execution\]
Approved Plans
“” shall mean collectively the approvals required by the City which
govern development ofImprovements on the Property, including approval of plans by the City in
its Governmental Capacity pursuant to the concept plan and design review process and approval
by the City of construction levels drawings as required to obtain the Entitlements.
Building
“” shall mean each buildingand structure on any Development Parcels.
Developer
“” shall mean and include the Person acknowledging this Declaration as
“Developer” and each Successor Owner of all or a portion of the Development Parcels,in each
case for so long as such Person owns feetitle to the Development Parcelsor any portion thereof.
Base Closure Law
“” shall meanthe Defense Base Closure and Realignment Act of
1990, (Part A of Title XXIX of Public Law 101-510; 10 U.S.C. Section 2687 Note), as amended.
Business Day(s)
“” shall mean any day on which City Hall is open for business and shall
specifically exclude Fridays when City Hall is officially closed, Saturday, Sunday or a legal
holiday.
CEQA
“” shall mean the California Environmental Quality Act and implementing
regulations and guidelines, contained in Cal. Public Resources Code Section 21000 et seq., and
Cal. Code of Regulations, title 14, Section 15000 et seq., respectively.
Certificate of Compliance
“” shall mean the certificate of compliance for each of the
Retail Parcel andfor the Healthcare Parcel, which shall each have been recorded by the City
against the DevelopmentParcels in accordance with the DDA (and evidencing the termination of
the DDA as to such Parcel in accordance with its terms)upon the satisfaction of the conditions
precedent to the City’s Recordingof such certificate set forth in the DDA.
City Code
“” shall mean the Tustin City Code for the City of Tustin, California, as the
same may be amended from time to time.
City Council
“”shall mean the City Council of the City of Tustin which serves as the
City’s legislative body.
City Indemnified Parties”
“shall meanthe City and its appointed and elected officials,
agents, attorneys, affiliates, employees, contractors, consultantsand representatives.
ClaimClaims
“” or “” shall mean any and all claims, actions, causes of action, demands,
orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses
(including attorneys’ fees, fees of expert witnesses, and consultants’ and court and litigation
costs), costs and expenses attributable to compliance with judicial and regulatory orders and
requirements, fines, penalties, liens, taxes, or any type of compensation whatsoever, direct or
ATTACHMENT 20City of Tustin/Regency Centers DDA
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indirect, known or unknown, foreseen or unforeseen.
Class A Standards
“” shall mean in terms of the quality of maintenance, standards
consistent with a Class A Project.
CompleteCompletion
“” and “” shall mean, with respect to the Project or, if the Project is
constructed in Phases, with respect to a given Phase, the point in time when all of the following
shall have occurred with respect to the Project or such Phase: (a) the Improvements with respect
thereto have been substantially completed in accordance with this Agreement; (b) the issuance of
a permanent certificate of occupancy by the City or, to the extent a certificate of occupancy is not
required by the City for a particular Improvement, the equivalent inspection, signoff or other
permit activity with respect to such Improvement,(c)the Recording of a Notice of Completion
(California Civil Code Section3043) by Developer, its Successor Owner or such Person’s
contractor; (d) a certification by the Project architect that such Improvements (with the exception
of minor “punch list” items) have been completed in a good and workmanlike manner and
substantially in accordance with the Approved Plans and specifications; and (e)all contractors,
subcontractors, laborers, suppliers, Architects, and engineers who performed work on the
relevant Improvements shall have been paid in full and shall have executed final unconditional
lien waivers and any mechanic’s liens that have been recorded or stop notices that have been
delivered have been paid, settled or otherwise extinguished, discharged, released, waived,
bonded around or insured against.
Developer Representatives
“” shall mean Developer and its officers, directors,
employees, agents, representatives, tenants, prospective tenants, prospective purchasers,
contractors, and other Persons accessing property owned by the City by, through or with the
permission or under the direction or auspices of Developer, and when used in the context of the
Healthcare Developer shall mean the officers, directors, employees, agents, representatives,
tenants, prospective tenants, prospective purchasers, contractors, and other Persons accessing the
property owned by the City by, through or with the permission or under the direction or auspices
of Healthcare Developer.
Development Parcels
“” shall mean the Retail Parcel and the Healthcare Parcel
collectively.
Development Permits
“” shall include any grading permit, foundation permit,
construction permit, building permit or other permit type as may be necessary pursuant to
Chapter 4 of the Specific Plan and/or the CityCode.
DTSC
“” shall mean the California Department of Toxic and Substance Control.
Due Diligence Information
“” shall mean any and all information or documentation
relating to the Property furnished to Developer by the City, or its elected and appointed officials,
employees, agents, attorneys, affiliates, representatives, contractors or consultants, in connection
with Developer’s due diligence pursuant to the DDA.
ATTACHMENT 20City of Tustin/Regency Centers DDA
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End User
“”shall mean a Person operatinga retail business, or a Healthcare User, in any
Improvement including any Building or Leasable Space, whether such Person holds a fee interest
in a Building Pad, a ground leasehold interest in a Building Pad, or a leasehold interest in a
Leasable Space or is leasing office space in a Building.
Entitlements
“” shall mean the City General Plan, the Specific Plan and all discretionary
land use approvals and entitlements legally required by the City or any other Governmental
Authority as a condition of subdivision and development of the Property and construction of
Improvements.
Environmental Agency
“” shall mean the United States Environmental Protection
Agency; the California Environmental Protection Agency and all of its sub-entities, including
any Regional Water Quality Control Board, the State Water Resources Control Board, the
Department of Toxic Substances Control, the South Coast Air Quality Management District, and
the California Air Resources Board; the City; anyFire Department or Health Department with
jurisdiction over the Property; and/or any other federal, state, regional or local governmental
agency or entity that has or asserts jurisdiction over Hazardous Substance Releases or the
presence, use, storage, transfer, manufacture, licensing, reporting, permitting, analysis, disposal
or treatment of Hazardous Materials in, on, under, about, or affecting the Project, the
Development Parcels or any Improvements thereon.
Environmental Laws
“” shall mean any federal, state, regional or local laws, ordinances,
rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence
as of October\[\]2015 or as later enacted,promulgated, issued, modified or adopted,
regulating or relating to Hazardous Materials, and all applicable judicial, administrative and
regulatory decrees, judgments and orders and common law, including those relating to industrial
hygiene, public safety, human health, or protection of the environment, or the reporting,
licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture,
storage, discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous
Materials. Environmental Laws shall include the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section9601, et seq.)
CERCLA
(“”); the Resource Conservation and Recovery Act, as amended, (42 U.S.C.
RCRA
Section6901 et seq.) (“”); the federal Water Pollution Control Act, as amended,
(33U.S.C. Section1251 et seq.); the Toxic Substances Control Act, as amended, (15 U.S.C.
Section2601 et seq.); the Hazardous Substances Account Act (Chapter6.8 of the California
Health and Safety Code Section25300 et seq.); Chapter 6.5 commencing with Section25100
(Hazardous Waste Control) and Chapter6.7 commencing with Section25280 (Underground
Storage of Hazardous Substances) of the California Health and Safety Code; and the California
Water Code, Sections13000 et seq.
Federal Deed
“” shall mean that certain Quitclaim Deed H and Environmental Restriction
Pursuant to Civil Code Section1471 dated May13, 2002, that was Recorded on May14, 2002 as
Instrument Number 20020404598.
Federal Government
“” shall mean the United States of America(including the Navy),
by and through the Secretary of the Navy, or designee.
ATTACHMENT 20City of Tustin/Regency Centers DDA
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Force Majeure Delay
“” shall mean (a) prior to Recording of a Certificate of Compliance
for the Healthcare Parcel and/orthe Retail Parcel, as to such Parcel, have the meaning set forth in
the DDA, and (b)following Recording of aCertificate of Compliancefor each Parcel, as to such
Parcel, shall meanthe occurrence of any of the following events when such event is beyond the
control of the First Party and such Party’s contractors and consultants and is not due to an act or
omission of such Party or any consultant, contractor or other Person for whom such Party may be
contractually or legally responsible, which directly, materially and adversely affects the ability of
the First Party to meet its non-monetary obligations under this Declaration and which events(or
the effect of which events) could not reasonably have been avoided by due diligence and use of
reasonable efforts by the Party claiming Force Majeure Delay, provided, however, that failure of
Property Owner to perform any obligation to be performed bysuch Property Owner hereunder as
the result of adverse changes in the financial condition of such Property Owner or any other
Personor failure to perform any obligation to be performed by Property Owner or other Person
hereunder as the result of adverse changes in market conditions shall not constitute Force
Majeure Delay:any act of God, materially adverse weather conditions, strikes, lockouts, labor
troubles, failure of power, restrictive governmental laws or regulations, riots, insurrection, war,
casualty causing material physical destruction or damage on the Property, any delay caused by
the other Party's failure to respond in accordance with the terms of this Declaration, or other
reasons of a like nature beyond the reasonable control of the Party delayed in performing works
or doing acts required under this Declaration.
Foreclosure
“” shall mean the foreclosure of any Permitted Mortgage (or any sale
thereunder), whether by judicial proceedings, by virtue of any power of sale under the Permitted
Mortgage, by acceptance of a deed-in-lieu of foreclosure, or by any other conveyance of all or
any portion of the Property and/or Improvements by other appropriate proceedings in the nature
of a foreclosure, resulting in the Transfer of all or any portion of the Property and/or
Improvements to (a) any Permitted Mortgagee, (b) any entity that Controls Permitted Mortgagee,
is Controlled by Permitted Mortgagee, or is Controlled by an entity that also Controls Permitted
Mortgagee, (c) any participating lender in theConstruction Loan (excluding Developer or any
Developer Affiliate), and/or (d) any agent or nominee for one or more of the lenders in clauses
(a) through (c) under the Permitted Mortgage that secures the Construction Loan.
FOST
“” shall mean the Departmentof Navy findings and determinations that the
Development Parcels were suitable for transfer to the City, pursuant to the document entitled
“Final Finding of Suitability to Transfer For Southern Parcels 4-8, 10-12, 14, and 42, and Parcels
25, 26, 30-33, 37, and Portions of 40 and 41 Marine Corps Air Station Tustin, California” dated
September28, 2001.
Governmental Authority
“” shall mean any and all federal, state, county, municipal and
local governmental and quasi-governmental bodies and authorities (including the United States
of America, the State of California and any political subdivision, public corporation, district,
joint powers authority or other political or public entity) or departments thereof having or
exercising jurisdiction over Developer, theProject, the Property and/or such portions of the
foregoing as the context indicates.
ATTACHMENT 20City of Tustin/Regency Centers DDA
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Governmental Requirements
“” shall mean all laws, statutes, codes, ordinances, rules,
regulations, standards, guidelines and other requirements issued by any GovernmentalAuthority
having jurisdiction over, governing, applying to or other affecting Developer, the Project, the
Improvements, the Property and/or any component thereof and includingwithout limitation:
(i)Tustin City Codeand the Entitlements.
Ground Lease
“”shall mean a lease of real property comprising all or a portion of a
Parcel to an End User for construction and/or occupancy of one or more Buildings thereon.
Hazardous Materials
“” shall mean and include the following:
Hazardous SubstanceHazardous MaterialHazardous Waste
(a) “”, “”, “”,
Toxic Substance
or “” under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. subsection9601,et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. subsection5101,et seq., or the Resource Conservation and
Recovery Act, 42 U.S.C. subsection6901,et seq.;
Extremely Hazardous WasteHazardous Waste
(b) An “”, a “”, or a
Restricted Hazardous Waste
“”, under subsections25115, 25117, or 25122.7 of the California
Health and SafetyCode, or is listed or identified pursuant to subsection25140 or 44321 of the
California Health and Safety Code;
Hazardous MaterialHazardous SubstanceHazardous Waste
(c) “”, “”, “”,
Toxic Air ContaminantMedical Waste
“”, or “” under subsections25281, 25316, 25501,
25501.1, 117690 or 39655 of the California Health and Safety Code;
OilHazardous Substance
(d) “” or a “” listed or identified pursuant to
Section311 of the Federal Water Pollution Control Act, 33 U.S.C. Section1321, as well as any
other hydro carbonic substance or by-product;
Hazardous WasteExtremely Hazardous
(e) Listed or defined as a “”, “
WasteAcutely Hazardous Waste
”, or an “” pursuant to Chapter 11 of Title 22 of the California
Code of Regulations;
(f)Listed by the State of California as a chemical known by the State to cause
cancer or reproductive toxicity pursuant to Section25249.9(a) of the California Health and
Safety Code;
(g) A material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures damages or threatens to damage, health,
safety, or the environment, or is required by any law or public agency to be remediated,
including remediation which such law or public agency requires in order for the property to be
put to any lawful purpose;
(h) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
ATTACHMENT 20City of Tustin/Regency Centers DDA
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whether or not the presence of such material resulted from a leaking underground fuel tank;
(i) Pesticides regulated under the Feral Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. subsections136etseq.;
(j) Asbestos, PCBs and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. subsections2601etseq.;
(k) Any radioactive material including any “source material”, “special nuclear
material”, “by-product material”, “low-level wastes”, “high-level radioactive waste”, “spent
nuclear fuel” or “transuranic waste”, and any other radioactive materialsor radioactive wastes,
however produced, regulated under the Atomic Energy Act, 42U.S.C. subsection2011et seq.,
the Nuclear Waste Policy Act, 42 U.S.C. subsection10101et seq., or pursuant to the California
Radiation Control Law, California Health andSafety Code Section114960 et seq.;
(l) Regulated under the Occupational Safety and Health Act, 29U.S.C.
subsection651et seq., or the California Occupational Safety and Health Act, California Labor
Code subsection6300et seq.; and/or
(m) Regulated under the Clean Air Act, 42 U.S.C. subsection7401et seq.or
pursuant to Division 26 of the California Health and Safety Code.
Healthcare User
“”shall meanany entity that operates a non-residential hospital, medical
office, office, skilled nursing or other healthcare related facility.
Healthcare Parcel
“” shall mean the real property described in Recital Cand legally
described on Exhibit 1hereto.
Healthcare Parcel Retail Uses
“” shall mean any retail uses permitted pursuant to the
Specific Plan but specifically excluding grocery uses and stand-alone drug store use.
mprovements
“I” shall meanall Buildings, structures, private streets, roads, drives, bike
paths, alleyways, sidewalks, utilities, common areas, landscaping, hardscaping, fountains and
similar improvements constructed on the Development Parcels from time to time.
Investigation(s)
“” shall mean any observation, inquiry, examination, sampling,
monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying
of or concerning the Property, including the air, soil, surface water, and groundwater, and the
surrounding population or properties, or any of them, to characterize or evaluate the nature,
extent or impact of Hazardous Materials.
Land
“”shall have the meaning set forth in Recital C.
Lease
“”shall mean, as a noun, an agreement between Developer and a Tenant to lease,
sublease or license a Parcel or any portion thereof or any Building or portion thereof thereon,
including any Ground Lease or Space Lease, and, as a verb, shall mean the leasing by Developer
of any Parcel or Improvement or portion thereof, including any space within a Building, to a
ATTACHMENT 20City of Tustin/Regency Centers DDA
Tustin Regency-_DDA_Attachment_20_(Special_Restrictions) Agd
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Tenant.
Memorandum of Agreement
“” shall meanthat certain Memorandum of Agreement by
and between The United States of America (through the Secretary of the Army or designee) and
the City dated May 13, 2002.
Mortgage
“” shall mean any indenture of mortgage or deed of trust, bond, grant of
taxable or tax exempt funds from a governmental agency or other security interest affecting the
Development Parcels or any portion thereof and the documents governing a sale-leaseback
transaction, together with all loan documents related thereto, but excluding any community
facilities districts, assessment districts, landscape and lighting districts or other assessments
created or imposed by any Governmental Authority.
Other Agreements
“” shall mean the Quitclaim Deed(s), the Special Restrictions, the
Memorandum of DDA, License Agreement, the Slope Parcel Easement and Landscape
Installation and Maintenance Agreement, the CC&Rs and the DA, each of which shall be or shall
have been Recorded.
Parcel
“” shall mean each of the Retail Parcel and Healthcare Parcel, individually.
Permitted Exceptions
“” shall mean those exceptions to title shown in the ALTA title
policy issued to Developer with respect to a Parcel at the Close of Escrowfor such Parcel.
Permitted Mortgage
“” shall mean, (a) prior to Recording of a Certificate of Compliance
for the Healthcare Parcel, any indenture of mortgage or deed of trust, bonds, grant of taxable or
tax-exempt funds from a governmental agency or other conveyance of a security interest in the
Healthcare Parcel, or any portion thereof to a Permitted Mortgagee or the conveyance of the
Healthcare Parcel or any portion thereof to the Permitted Mortgagee or its Successor Owner or
purchaser in connection with a Foreclosure which satisfies all of the criteria set forth in Section2
and Section17and (b) following Recording of a Certificate of Compliance for any Parcel, a
Mortgage Recorded against such Parcel.
Permitted Mortgagee
“” shall mean (a) prior to Recording of a Certificate of Compliance
for the Healthcare Parcel, a Mortgagee meeting the criteria set forth in Section17.1.2of the
DDAand accordingly entitled to the Permitted Mortgagee protections provided by this
Agreementand (b) following Recording of a Certificate of Compliance for any Parcel, a Person
holding a Mortgage Recorded against such Parcel. For purposes of any acts under a Permitted
Mortgage with respect to and/or following a Foreclosure thereunder, “Permitted Mortgagee”
means such Permitted Mortgagee or any wholly-owned subsidiary thereof designated by the
Permitted Mortgagee to take title to the foreclosed property. The participation, securitization or
assignment of a loan (or any portion thereof) by a Permitted Mortgagee (acting in an individual
capacity or as agent for other lenders) shall not give rise to any requirement that each lender
participating in such participation, securitization or assignment itself be a Permitted Mortgagee
(acting in an individual capacity or as agent for other lenders), so long as (a)at the inception of
the loan, the originating and agent lender is a Permitted Mortgagee, and (b)at the time of any
subsequent assignment of the loan, the successor owner and agent lender is a Permitted
ATTACHMENT 20City of Tustin/Regency Centers DDA
Tustin Regency-_DDA_Attachment_20_(Special_Restrictions) Agd
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Mortgagee.
Person
“” shall mean an individual, partnership, limited partnership, trust, estate,
association, corporation, limited liability company, joint venture, firm, joint stock company,
unincorporated association, Governmental Authority, governmental agency or other entity,
domestic orforeign.
ProhibitedUse
“” is defined on Exhibit 3.
Project
“” shall mean the construction and installation on the Development Parcels of the
Improvements.
Property Owner
“” shall have the meaning set forth in Recital G.In addition, with
respect to the obligations imposed under Sections2.2 and 2.3of this Declaration, if a
Development Parcel is subject to a ground lease, the term "Property Owner" shall also include
the ground lessee under such ground lease.
RecordRecordingRecorded
“”, “” and “” shall mean to record the specified instrument,
or the current or past recording of the specified instrument, in the official records of Orange
County California.
Release
“” (with respect to Hazardous Materials) shall mean any releasing, or threat of
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing, or dumping into the environment.
RemediateRemediation
” or“” shall mean any response or remedial action as defined
under Section101(25) of CERCLA, and similar actions with respect to Hazardous Materials as
defined under comparable state and local laws, and any other cleanup, removal, containment,
abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or
other mitigation or remediation of Hazardous Materials or Releases required by any
Environmental Agency or within the purview of any Environmental Laws.
Retail Parcel
“” shall mean the real property described in RecitalCand legallydescribed
onExhibit 1hereto.
Space Lease
“”shall mean each Lease for Retail Use of a portion of an improved
Building located on the Retail Parcel and each Lease for Medical Use or Healthcare Parcel Retail
Use of a portion of an improved Building located on the Healthcare Parcel, but in each case
excluding leases of real property or ground leases.
Specific Plan
“” shall mean the MCAS Tustin Specific Plan/Reuse Plan adopted by the
City as the same has been or shall be amended from time to time.
Successor Owner
“” shall mean each and every Person owning or acquiring fee title to all
or any portion of the Development Parcels.In addition, with respect to the obligations imposed
under Sections2.2 and 2.3of this Declaration, and specifically excluding any insurance and
ATTACHMENT 20City of Tustin/Regency Centers DDA
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indemnityobligations under this Declaration, if a Development Parcel is subject to a ground
lease, the term "Successor Owner" shall also include the ground lessee under such ground lease.
Tenant
“”shall mean any Person who Leases any land and/or space on the Development
Parcels and thereunder operates (or is constructing improvements with the intent to operate)
Retail Uses, Healthcare Parcel Retail Usesor Medical Uses in such space.
Tustin Legacy
“”shall have the meaning set forth in Recital B.
Tustin Legacy Backbone Infrastructure Program
“” shall mean the backbone
infrastructure program developed by the City with respect to Tustin Legacy, which includes a
program for contribution by landowners in Tustin Legacy for backbone infrastructure, including
Tustin Legacy roadway improvements; traffic and circulation mitigation to support the Tustin
Legacy project; domestic and reclaimed water; sewer; telemetry; storm drains and flood control
channels; utilities backbone (electricity, gas, telephone, cable, telecommunications, etc.) (as such
program is in effect as of the Effective Date).
ATTACHMENT 20City of Tustin/Regency Centers DDA
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EXHIBIT 5
SITE PLAN
\[To be attached\]
ATTACHMENT 20City of Tustin/Regency Centers DDA
Tustin Regency-_DDA_Attachment_20_(Special_Restrictions) Agd
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ATTACHMENT 21
RETAIL PARCEL PRE-APPROVED TENANTS
Pre-Approved Tenants shall mean any of the Anchor Tenants identified below, including any
subsidiaries, affiliates or partners thereof (meaning, any entity controlling, controlled by or under
common control of any of the foregoing):
Grocers
a)99 Ranch Market
b)Albertsons
c)Bristol Farms
d)Gel
e)Mothers Market
f)Pavilions
g)Ralphs
h)Smart & Final Extra
i)Sprouts Farmers Market
j)Stater Bros.
k)The Fresh Market
l)
m)Vons
n)99 Ranch
o)Northgate Market
p)El Super
q)Wal-Mart Neighborhood Grocery
r)Wholesome Choice
Drug Stores
a)CVS
b)Pharmaca
c)Rite Aid
d)Walgreens
ATTACHMENT 21
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-1-
September _29, 2015
Pre-Schools/Day Care
a)
b)Learning Care Group
c)Primrose Schools
d)Great Foundations
Other Tenants
a)Bed Bath & Beyond
b)Orchard Supply
c)Petsmart
d)Petco
e)Beverages & More
f)Crate & Barrel
g)Cost Plus World Market
h)Huntington Surf & Sport
i)Jacks Surf & Sport
j)Marshalls
k)
l)TJ Max
m)Total Wine & More
n)Williams-Sonoma
Pad Tenants
a)Wells Fargo
b)Citibank
c)Union Bank
d)
e)Comerica
f)East West Bank
g)Bank of America
h)Chase
ATTACHMENT 21
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-2-
September _29, 2015
i)PDQ
j)
k)Taco Bell
l)Burger King
m)
n)Del Taco
o)
p)
q)Panda Express
r)
s)Dunkin Donuts
t)Lemonade
u)Mendocino Farms
ATTACHMENT 21
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-3-
September _29, 2015
ATTACHMENTNO.22A
CITY NON-DISTURBANCE AND ATTORNMENT AGREEMENT
FOR PAD TRANSFEREES
CITYOFTUSTIN OFFICIALBUSINESS
REQUESTDOCUMENTTOBE
RECORDED AND TOBEEXEMPT
FROMRECORDING FEES PER
GOVERNMENTCODE6103AND
27383.
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: City Manager
SpaceAboveThisLineReservedforRecorder’sUse
RECOGNITION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(Pad Transferee)
THIS RECOGNITION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Agreement
(Pad Transferee) (this “”) is entered into this________ day of___________ , _____,
Effective Date
(“”) by and among____________________________________, a
Pad Transferee\[1C TUSTIN LEGACY LLC,, a Florida limited
___________________(“”),
liability company, the Developer under the DDA (defined below)/or _________________ the
Healthcare Developerunder the DDA (defined below\]Developer
(“”), and THE CITY OF
TUSTIN, CALIFORNIA, a municipal corporation duly organized and existing under and by
City
virtue of the laws of the State of California (the “”).Each of Pad Transferee,Developer, and
PartyParties
the Cityare referred to as a “” and all of them are sometimes referred to as the “.”
WITNESSETH:
A.The City and Developer have entered into that certain Tustin Legacy Disposition
and Development Agreement for Disposition Parcel 1C, dated as of ________________
(including all attachments thereto), which,as the same may be amended, updated or modified
DDA
from time to time is referred to herein as the “”,with respect to the real property described
Development Parcels
thereinas the “.”The Development Parcels include certain land described
\[“Retail Parcels”/“Healthcare Parcels”\]
in the DDA as the as legally described on Exhibit A
attached hereto and incorporated herein by this reference, which pursuant to the DDA, were
Tustin Regency DDA Attachment 22A Pad Transfer Non-ATTACHMENT 22ACity of Tustin/Regency Centers DDA
Disturbance Agt 6-17-2015 (Agd)(4) FINAL.Docx
-1-September29, 2015
previously conveyed by the City to Developer.
B.A Memorandum of Tustin Legacy Dispositionand Development Agreement for
Memorandum
Parcel 1C (the “”) executed by the Cityand Developer has been recorded against
the Development Parcels as Instrument No.______________ in the official records of Orange
Official Records
County, California (the “”).Initially capitalized terms set forth in this
Agreement and not defined herein shall have the meanings set forth therefor in the DDA.
C.Pursuant to the DDA, the following documents have been recorded in the Official
Records against all of the Development Parcels: (i) that certain Declaration of Special
Restrictions, dated as of_______________,20__and recorded as Instrument No.
Special Restrictions
______________in the Official Records (the “”), (ii) that certain Slope
Easement and Landscape Installation and Maintenance Agreementdated as of
_______________, 20__and recorded as Instrument No. ______________ (the
Slope/Landscape Agreement”
“)and (iii) Declaration of Covenants, Conditions and Restrictions
dated as of _______________, 20__and recorded as Instrument No. ______________ (the
CC&Rs
“”).
D.Developer intends to \[sell/ground leaseto Pad Transferee the portion of the
\[Retail Parcels/Healthcare Parcels\]legally described on Exhibit Battached heretoand
Building Pad
incorporated herein by this reference(the “”)pursuant to that certain {specify
Conveyance AgreementGround
written agreement},dated as of ____________ (the “”/“
Lease
”). Under the terms and provisions of the DDA, Pad Transferee(i) is anEnd Userand (ii)
does not intend to engage in a Prohibited Use upon the Building Pad.
E.Pursuant to the DDA, Developer agreed to complete or cause to be completed
construction of certain improvements on the \[Retail Parcels/Healthcare Parcels\], including on
the Building Pad, within the time periods and subject to the additional terms and conditions set
forth in the DDA.
F.Under the terms of the DDA, Pad Transferee is obligated to comply with certain
,\[the Slope/Landscape Agreement\]
of the requirementsof the Special Restrictions,the CC&Rs
and the DDAwhich apply to the Building Pad and/or the Pad Transferee including without
limitation the following: (i) the obligations of Developer under the DDA relating to the Building
Pad; (ii) the obligation to construct the Vertical Improvements and the On-Lot Improvements
required to be constructed on the Building Pad pursuant to the \[Conveyance Agreement/Lease\]
Pad Improvements
(“”) within the time period set forth for the Completion ofsuch Pad
Improvements by Developer in the Schedule of Performance; and (iii) the City’s Right of
Repurchase and the City’s Right of Reversion.
G.The Partiesdesire to enter into this Agreement in order to (i) provide certain
rights and remedies in favor of the City with respect to failure of Pad Transfereeto comply with
the requirements of the DDA,(ii) establish certain rights and remedies of City and Pad
Transferee with respect to each other, and (iii) establish certain revised (a) Schedule of
Performance dates pertaining to the commencement of construction and Completion ofthe Pad
Improvements carried out by Pad Transferee (and not Developer) and (b)Reversion Action
Triggers and Reversion Action Trigger Datespertaining to the commencement of construction
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and Completion ofthe Pad Improvements carried out by Pad Transferee (and not Developer), all
on the terms and conditions specified in this Agreement.
NOW, THEREFORE, in consideration of their mutual covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Partieshereby agree as follows:
1.Non-Disturbance and Attornment.This Agreement shall become effective on the date of
Pad Transfer Date
delivery of the Building Padby Developerto Pad Transferee (the “”). If the
City succeeds to the Developer’s interest as \[seller under the Conveyance Agreement/landlord
under the Ground Lease\]following the Pad Transfer Date,then as further set forth in and subject
to the terms of this Agreement, including without limitation, the provisions of Sections 5.2and
5.3,the City shall not terminate or disturb Pad Transferee’s occupancy or possession of the
Building Padand Pad Transferee shall attorn to City and recognize City as \[sellerunder the
Conveyance Agreement/landlord under theGround Lease\].
2.Completion Date Modification.Notwithstanding any provision of the DDA, including
withoutlimitation, the Schedule of Performance,the following shall comprise the required
Schedule of Performance datesapplicable to construction and Completion of the Pad
Improvementsthat arerequired by the terms of the\[Conveyance Agreement/Lease\]to be
constructedby Pad Transferee on theBuilding Pad; provided thatthe following dates shall apply
solely with respect to the Pad Transferee’s construction of Pad Improvements onthe Building
Pad(and for avoidance of doubt, the dates applicable to Developer’s construction of
Improvements on the Developer Parcels, including the Building Pad, shall be subject to the dates
set forth in the Schedule of Performance attached to the DDA):
2.1.The Pad Improvementsshall be commenced on or before the date that is one
hundred and eighty (180) calendar days from the Pad TransferDate, subject to Force Majeure
Delay (but with any extension for Force Majeure Delay in no event to exceed one (1) year, even
Pad Construction
if the item or items of Force Majeure Delay exist for a longer period)(“
CommencementTrigger Date
”); and
2.2.The Pad Improvements shall be Completed on or before the date that the earlier of
the following:(i)eighteen months (18)months following the Construction Commencement
Trigger Dateor (ii) two (2) years from the Pad Transfer Date, in each case subject to Force
Majeure Delay (but with any extension for Force Majeure Delay in no event to exceed one (1)
year, even if the item or items of Force Majeure Delay exist for a longer period)(such earlier
Pad Completion Trigger Date
date, the “”).
3.The City’sRights.
3.1.Right of Repurchase.If Developer and/or Pad Transfereeshall be in default
under this Agreement, or in Material Default under any of the DDA, the Quitclaim Deed,the
Property Documents
CC&Rs or the Special Restrictions(collectively, the “”), the City shall
have available to it all remedies set forth in this Agreementand the Property Documents, as the
case may be. Notwithstanding the foregoing sentence, from and after the Pad Transfer Date, but
Pad
with respect to the Pad Transferee and Pad Transferee’s interest in the Building Pad(“
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Transferee Interests
”) only,theCity’s Right of Repurchase with respect to the Pad Transferee
Interestsshall continue in full force and effect;provided that:
(a)the Cityshall have no right toexercise the Right of Repurchase with
respect to the Pad Transferee Interests prior to the earlier of:(i) the occurrence of a default by
Pad Transferee under this Agreement, (ii)the occurrence of a Material Default by PadTransferee
under the Property Documents or (iii)if construction of the PadImprovements on the Building
Pad has not commenced on or before such date, the Pad Construction Commencement Trigger
Date;
(b)if construction of the PadImprovementshas commenced by the Pad
Construction Commencement Trigger Date, the City shall have no right to exercise its Right of
Repurchase with respect to the Pad Transferee Interests until the earlier of:(i) the occurrence of
a default by Pad Transferee under this Agreement, (ii)the occurrence of a Material Default by
Pad Transferee under the Property Documents or (iii)the failure to Complete the construction of
the Pad Improvements by the PadCompletion TriggerDate, and
(c)the Repurchase Price(as such term is used in the DDA) shall be modified
with respect to exercise of the Right of Repurchase of the Pad Transferee Interestsand shall be
equal to (a) the Pad Transferee’sBook Value for its interest in the Building Padand the Pad
Improvementsand On-Lot Improvements constructed by Pad Transferee thereon;it being agreed
Book Value
that “”,shall mean the book value of the Building Pad on the records of the Pad
Transfereeowningsuch Building Pad on the date of calculation thereof, and shall be comprised
of: (i)the applicable land account for the property which encompasses, among other items,
purchase price, if applicable, and soft costs, and (ii)the applicable building account which
encompasses, among other things, hard initial construction and renovation costs and soft costs,
less
less accumulated depreciation on the building and applicable secured equipment,(b) Lien
Release Amounts applicable to the Building Pad and/or the Building Pad Interests.
(d)if thePad Improvements and On-Lot Improvements on the Building Pad
are Completed on or before the PadCompletion Trigger Datethen the City shall have no further
right to exercise the Right of Repurchase with respect to the Building Pad.
3.2.Right of Reversion.The City’s Right of Reversion shall continue in full force and
effect;provided thatas to the Pad Transferee Interests only, the Reversion Action Triggers set
forth in Section 16.4.1 shall be replaced with the following, which shall be effective solely as to
the Pad Transferee Interests:
(a)Construction of the Pad Improvements has not commenced on or before
the date that is one hundred and eighty (180) calendar days following the Pad Construction
Commencement Trigger Date;as such date may be extended for Force Majeure Delay; provided
that such Completion date shall not under any circumstances be later than the date that is one
(1)year following the Pad Construction CommencementTriggerDate (which date shall not be
extended for Force Majeure Delay);
(b)construction of the Pad Improvements has not been Completed on or
before the date that is two (2) years after the Pad Construction CommencementTriggerDate as
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such date may be extended for Force Majeure Delay; provided that such Completion date shall
not under any circumstances be later than the date that is three (3) years after the Pad
Construction CommencementTriggerDate (which date shall not be extended for Force Majeure
Delay);
(c)Pad Transferee commits waste on the Transfer Padand such becomes a
Material Default in accordance with the notice and cure provisions of Section 14.2 of the DDA,
subject to extension for Force Majeure Delay;
(d)Pad Transfereeabandons or substantially suspends (except for suspensions
resulting from Force Majeure Delay) construction of the PadImprovementsfor a total period of
one (1) year, and such becomes a Material Default in accordance with the notice and cure
provisions of Section14.2 of the DDA;
(e)The occurrence of an Insolvency Event with respect to Pad Transferee; or
(f)A Material Default arises because of a voluntary or involuntary Transfer
or Transfer of Control of Pad Transferee.
Ifthe Pad Improvements on the Building Pad are Completed by the dateset forth in Section
3.2(b),then upon such Completion, theCity shall have no further right to exercise the Right of
Reversion.
3.3.Limitation on Force Majeure Delay. Notwithstanding any other provision of this
Agreement or the Property Documents to the contrary, the dates set forth in Section 3.1 with
respect to the Right of Repurchase and the Reversion Action Trigger Datesset forth in Section
3.2shall be extended for Force Majeure Delays only to the extent specifically set forth in such
Sections.
3.4.Additional Rights of City.Nothing in this Agreement shall impair or modify,as
to Developer, Developer’s interest in the Development Parcels, Pad Transferee and/or Pad
Transferee Interests: (a) the City’srights and remedies under the Property Documents with
respect to the Right of Repurchase or Right of Reversion, except to the extent specifically set
forth in Section 3.1, 3.2 and 3.3 with respect to the Pad Transferee Interests and(b) all other City
rights and remedies contained in the Property Documents. Without limiting the foregoing, Pad
Transferee acknowledges that the DDA contains provisions that may, among other things, result
in the City exercisingthe Right of Reversion or Right of Repurchase as to other portions of the
Development Parcels and/or as to interests of other Persons in the Building Pad, or exercising its
other remedies set forth in the Property Documents, and such exercise may result in, among
other things,all or any portion of the Development Parcels being developed by a Person other
than Developer or Healthcare Developerand being developed for currently unforeseen uses.
3.5.Exercise of Remedies Voluntary.Nothing in this Agreement shall obligate the
City to exercise the Right of Repurchase or Right of Reversion or to exercise any other remedy
against Developer, Pad Transferee, the Development Parcels or the Pad Transferee Interests and
the exercise of such remedies by the City shall be a right and not an obligation of the City.
4.On-Going Obligations of Developer.
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4.1.Notwithstanding anything to the contrary contained in this Agreement or in the
\[Conveyance Agreement/Ground Lease\]: (a) Developer, its successors and assigns,Pad
Transferee, its successors and assigns, and the Building Padare and shall remain subject to this
Agreement, the DDA (except as expressly modified herein as to the Pad Transferee), the Special
Restrictions, the Slope/Landscape Agreementand the CC&Rs; and (b) Developer hereby
acknowledges and agrees that it retains all the obligations under the DDA,the Special
Restrictions, the Slope/Landscape Agreement and the CC&Rsrelating to the Building Pad,
including,but not limited to, construction of the Improvementsandperformance of Developer’s
maintenanceand indemnityobligations.
4.2.The Parties specifically acknowledge the provisions of DDA Section 2.2.3(c)(vii),
which providethat the Developer will use its commercially reasonable efforts to enforce such
terms in the \[Conveyance Agreement/Ground Lease\],to the extent Developer has the right to
enforce the same pursuant to the \[Conveyance Agreement/Ground Lease\],; provided, however,
the City may exercise its rights under this Agreement without waiting for Developer to enforce
such rights. The City shall have the express right to seek specific performance (a)against
Developerto requireDeveloper to exercise its rights and remedies under the \[Conveyance
Agreement/Ground Lease\],with respect to the Pad Transferee or its successor in interest,and
(b)against the Pad Transferee or its successor in interest including, without limitation, the City’s
Right of Repurchase or Right of Reversion contained in the DDA as modified by this Agreement
with respect to the Building Pad without having any obligation to wait for Developer to enforce
its rights.
5.City as Successor to Developer.If the City succeeds to the interest of Developer under
the \[Conveyance Agreement/Ground Lease\], whether through or in lieu of the exercise by the
City of any of its rights and/or remedies pursuant to this Agreement, the \[Conveyance
Remedies
Agreement/Ground Lease\]or the Property Documentsor otherwise (the “”), then in
such event(and only in such event):
5.1.The City, in its capacity as the successor to Developer’s interest under the
\[Conveyance Agreement/Ground Lease\],and any other successor in interest tosuch interest
under the \[Conveyance Agreement/Ground Lease\], and their respective successors and assigns,
and any person claiming the same by, through or under any of the foregoing(any of the
City Successor
foregoing, the “”)shall be subject to and shall comply with the terms and
provisions of this Section5.
5.2.Provided that (i) Pad Transfereeis not in default of its payment or performance
obligations underthis Agreement or under the \[Conveyance Agreement/Ground Lease\]beyond
any applicable grace or cure period set forth herein or therein and (ii) Pad Transfereeis not in
Material Default in the performance or observance of any term, covenant or conditionof the
Property Documents,City Successorshall not terminate or disturb Pad Transferee’soccupancy
or possession of the Building Pad,and the rights of Pad Transfereeunder the \[Conveyance
Agreement/GroundLease\]shall remainin full force and effect, except as otherwise expressly
permitted in accordance with the terms of this Agreement or theterms of the \[Conveyance
Agreement/Ground Lease\]; provided that (i) Pad Transferee is not in default of its payment or
performance obligations under this Agreement or under the \[Conveyance Agreement/Ground
Lease\]beyond any applicable grace or cure period set forth herein or therein and (ii) Pad
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Transferee is not in Material Default in the performance or observance of any term, covenant or
condition of theDDA or in default in the performance or observance of any term, covenant or
condition of the other Property Documents.
5.3.Pad Transfereeshall attorn to the City Successorand recognize the City Successor
as \[“seller”under the \[Conveyance Agreement/“landlord” under the Ground Lease\].Pad
Transfereeshall perform, and be bound under, all of the terms, covenants and conditions of the
\[Conveyance Agreement/Ground Lease\], including, but not limited to, the obligation to pay all
amounts owed under the \[Conveyance Agreement/Ground Lease\],{if Ground Lease: \[including
without limitation, rentand any percentage rent\]},until the expiration or earlier termination of
the \[Conveyance Agreement/Ground Lease\], including any renewal options which are exercised
in accordance with the terms of the \[Conveyance Agreement/Ground Lease\].Pad Transferee
shall execute and deliver to the City Successorsuchfurther assurance and otherdocuments,
including a new lease upon the same terms and conditions as the \[Conveyance
Agreement/Ground Lease\], confirming the foregoing, as the City Successormayreasonably
request. Notwithstanding the foregoing and except as specifically set forth in Sections 2 and 3of
this Agreementwith respect to the Pad Transferee Interests, nothing containedin this Agreement
shall be interpreted to release Developer, the Building Padand/or Pad Transfereefromthe
obligations imposed under the Property Documents.
5.4.Any interestof the City Successorunder the \[Conveyance Agreement/Ground
Lease\]acquiredby the City shall not merge with any other interests ofCity in the Building Pad,
including without limitation any right, title or interest of the City under theProperty Documents,
the Right of Repurchase and the Right of Reversionand/orother rights or remedies available to
the City under any of theProperty Documents.
5.5.The following shall apply to each City Successor:
5.5.1.The City Successorshall not be liable for or bound by any act
or omission of Developer or any predecessor in interest to such City Successor.
5.5.2.The City Successorshall notbe liable for payment of any sums
due from Developer to Pad Transfereeincluding, without limitation, (x) any payment or credit in
the nature of a \[construction/tenant\]improvement allowance or comparable item, any security
deposit (unless the City Successorshall have actually received and failed to refund such deposit
in accordance with the terms of the \[Conveyance Agreement/Ground Lease\]), (y)payments{if
Ground Lease: \[including without limitation,paymentsof rent or additional rent\]}made by Pad
Transfereefor more than (1) month in advance of the due date thereunder to Developer or any
predecessor in interestto such a City Successoror (z) payments of any kind owing from
Developer to Pad Transfereeunder the\[Conveyance Agreement/Ground Lease\]or otherwise,
including, without limitation, any refunds, payment, reimbursementor damages owed from
Developer to Pad Transferee. Without limiting the foregoing, with respect to all such items, Pad
Transferee agrees to look solely to Developer and any Guarantor of Developer and not to any
City Successor.
5.5.3.Pad Transfereehereby waives and relinquishes with respect to
each City Successorall offsets, counterclaims anddefenses which Pad Transfereemay have
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against Developer or any predecessorin interest thereof (including, without limitation, any
offset, abatement or right of deduction provided for under the terms of the \[Conveyance
Agreement/Ground Lease\]); providedthat nothing herein shall be deemed to relieve aCity
Successorfrom performing its obligations as \[seller under the Conveyance Agreement/landlord
under the Ground Lease\]with respect to obligations that arise solely from and after the datesuch
City Successorsucceeds to the position of \[seller under the Conveyance Agreement/landlord
{INSERT ANY
under the Ground Lease\]unless specifically set forth in this Agreement.
SPECIFIC CONVEYANCE AGREEMENT/GROUND LEASE PROVISIONS HERE}
5.5.4.The City Successorshall notbe bound by any agreement
between Developer and Pad Transfereepurporting to cancel, surrender, amend or modify the
\[Conveyance Agreement/Ground Lease\],unless such change has been approved in writing by the
City pursuant to Section6below.
5.5.5.The City Successorshall notbe required to rebuild, repair or
restore anydamage to the Building Pador any portion thereof caused by the occurrence of an
uninsuredcasualty or following a condemnation of all or any portion of the Building Padfor
whichthere are insufficient condemnation proceeds to pay the cost of such rebuilding, repair or
restoration.
5.5.6.The City Successorshall notbeliable with respect to any
obligation to completeany site work or build out any improvements for the Building Pad
including, without limitation, any portion of thePad Improvements, Minimum Horizontal
Improvements, any other Horizontal Improvements, the On-Lot Improvements, the Vertical
Improvements, any\[construction/tenant\]improvements or any other improvements to be built
upon the Building Pador the Development Parcels, and/or any obligation to pay any
\[construction/tenant\]improvementallowance to Pad Transfereeinconnection with the
\[Conveyance Agreement/Ground Lease\].
5.5.7.Without limiting the applicability of any other provision of this
Agreement, in no event shall City Successorbeliablefor any payments required to be made by
the \[seller under the Conveyance Agreement/landlord under the Ground Lease\]for any period
prior to the date the City Successorobtains title to the Building Pad.
5.5.8.Each City Successorshall be relieved of any obligation of the
\[seller under the Conveyance Agreement/landlord under the Ground Lease\]accruing after its
transfer, sale, assignment or conveyance to another person or entity of the title to the Building
Padand the \[seller’s interestunder the Conveyance Agreement/landlord‘s interest under the
Ground Lease\].
5.6.Hazardous Materials.
5.6.1.Developer andPad Transfereehereby waive and release the
City Successorfrom any claims either of them may have arising out of or related to Hazardous
Materials located in, on, under, or around the Building Pad.
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5.6.2.Nothing in this Agreement shall be construed to limit or restrict
in any way Developer’s and Pad Transferee’s environmental indemnities contained in Section
10.2of the DDA, which remain in full force and effect, unmodified.
5.6.3.The City Successorshall notbeliableor responsible for any
enforcement, cleanup, removal, remedial or other governmental orregulatory actions, or for any
agreements or orders threatened, instituted or completed pursuant to any federal,state or local
laws, ordinances, regulations or policies relating to any Hazardous Materials, or for any
indemnities under the \[Conveyance Agreement/Ground Lease\]concerning the presence, release
or discharge of any Hazardous Materials on, under or about the Building Pad, or for anypermits
and waste discharge requirements issued to and/or required of Pad Transfereeor Developer by
any governmental body or by the City, or any claims made or threatened by any person or
governmental body or by the City against Pad Transfereeor Developer or the Building Pad
relating to damage, contribution, cost recovery compensation, loss or injury resulting from the
presence, release or discharge of any Hazardous Materials on, under or about the Building Pad.
6.Additional Pad TransfereeAgreements.Pad Transfereeand Developer, as applicable
make thecovenants and agreements to the City set forth in this Section6and Developer makes
the agreement in Section6.4below.
6.1.Pad Transfereeshall not modify, terminateor amend the \[Conveyance
Agreement/Ground Lease\]or enter into any agreement that has the effect of modifying,
terminating or amending the \[Conveyance Agreement/Ground Lease\]without the prior written
consent of the City(which consent may be granted or withheld in the City’s sole discretion).
6.2.Except {if Conveyance Agreement:add/modify as to anyagreed upon payment to
be exclude\]\] {if Ground Lease: for thepayment of the first month’s rent,\]}Pad Transfereeshall
not pay, and Developer shall not accept, any payment \[{if Conveyance Agreement:}of
__________\]\[{if Ground Lease}:of rent or additional rent\]more than thirty (30) calendar days
in advance of the applicable due date under the \[Conveyance Agreement/Ground Lease\].
6.3.Pad Transfereeshall send a copy of any notice or statement under the
\[Conveyance Agreement/Ground Lease\]pertaining to Developer’s default thereunder to City at
the same time such default notice or statement is sent to Developer. If Developer shallhave
failed to cure such default within the time period provided for in the \[Conveyance
Agreement/Ground Lease\],Pad Transfereeshallnot exercise any remedies available by virtue of
such default unless (x) Pad Transfereeshallhave notifiedCity in writing of Developer’s failure
to cure such default and (y) Pad Transfereeshall have afforded the City an additional sixty (60)
calendar days from the receipt of such noticeto cure such default or if such default cannot be
cured within sixty (60) calendar days, then such additional time as may be necessary if, within
such sixty (60) day period, the City commences and thereafter diligently pursues the cure of such
default (including, without limitation, commencement of possessory proceedings, if necessary to
effect such cure). If the City commencesto cure a Developer default, the \[Conveyance
Agreement/Ground Lease\]shall remain in fullforceand effect during the period that such cure is
being diligently pursued. Nothing in this Agreement shall require the City to cure any Developer
default under the \[Conveyance Agreement/Ground Lease\], and the exercise of such cure rights
by the City shall be a right and not an obligation of the City.
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6.4.Developer shall not modify, terminate,or amend the \[Conveyance
Agreement/Ground Lease\]or enter into any agreement that would have the effect of modifying,
terminating or amending the \[Conveyance Agreement/Ground Lease\]without the prior written
consent of the City(which consent may be granted or withheld in the City’s sole discretion).If
the Citydoes attempt to cure a Developer default under the \[Conveyance Agreement/Ground
Lease\],Developer shall pay to the City all of the costs and expenses incurred by the City in
curing or attempting to cure such default.
6.5.Pad Transfereeshall, upon the execution of this Agreement and thereafter upon
the request of aCity Successor, provide the City or another City Successorwith an estoppel
certificate, in form and substance attached to the \[Conveyance Agreement/Ground Lease\]or
otherwise reasonably acceptable to the City Successor, stating, among other things, the
following: (i)that a complete, true and correct copy of the \[Conveyance Agreement/Ground
Lease\]is attached thereto and is unmodified and in full force and effect (or, if there have been
modifications, that such \[Conveyance Agreement/Ground Lease\]is in full force and effect, as
modified and stating the modifications or if such \[Conveyance Agreement/Ground Lease\]is not
in full force and effect, so stating);(ii) the dates, if any, to which any rent and other sums
payable under the \[Conveyance Agreement/Ground Lease\]have been paid;(iii) toPad
Transferee’s knowledge, there are no defaults, claims thereof,any condition which, with the
giving of notice and/or the passage of time or both, could become a default by either the \[seller
under the Conveyance Agreement/landlord under the Ground Lease\]or Pad Transfereewith
respect to their respective obligations under the \[Conveyance Agreement/Ground Lease\]or
under the performance of any term, covenant or condition contained in the \[Conveyance
Agreement/Ground Lease\]; (iv) Pad Transfereehas no claim, charge, defense or offset against
anyamounts {if Ground Lease: \[,including without limitation, rents}\]payable under the
\[Conveyance Agreement/Ground Lease\];(v) that Pad Transfereeis not aware of any default
which has not been cured,except as todefaults specified in said certificate;(vi) that Pad
Transfereehas no right to terminate the \[Conveyance Agreement/Ground Lease\].
6.6.All claims, demands or causes of action which Pad Transfereemay have or may
have had against Developer as of the dateCitysucceeds to the position of Developer under the
\[Conveyance Agreement/Ground Lease\], under any provisions of, or with respect to the
\[Conveyance Agreement/Ground Lease\], or on account of any matter, condition or circumstance
arising out of the relationship of Developer and Pad Transfereeunder the \[Conveyance
Agreement/Ground Lease\],Pad Transferee’s occupancy of the Building Pador Developer’s prior
ownership thereof, shall be enforceable solely against Developer to the extent provided in the
\[ConveyanceAgreement/Ground Lease\], and neither the City nor any other City Successor shall
be subject to any such claim, demand or cause of action.
7.Certain Agreements by Developer and Pad Transferee.Developer, as Developer under
the DDA and\[seller under the Conveyance Agreement/landlord under the Ground Lease\],and
Pad Transferee, as \[purchaserunder the Conveyance Agreement/tenant under the Ground
Lease\]\],each represent, warrant, covenant,acknowledge and agree for themselves and their
heirs, successors and assigns, that:
7.1.Except as expressly set forth herein, this Agreement does not constitute a waiver
by City of any of its rights under theProperty Documents.Except as expressly set forthherein,
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this Agreement does notin any way release Developer and/or Pad Transfereefrom their
respective obligations to comply with the terms, provisions, conditions, covenants, agreements
and clauses of theProperty Documents, including, without limitation, the release set forth in
Section 4.5.2(f)of the DDA, the indemnity set forth in Section 5.5 of the DDA, the insurance
required in Section 11 of the DDAand the indemnity, environmental indemnity and related
requirements set forth in Section 10.1through 10.7of the DDA.
7.2.The provisions of this Agreement do not impair or modifythe City’s Right of
Repurchaseor Right of Reversion contained in the DDA with respect to property other than the
Building Pad.
7.3.City has no obligation nor shall the Cityincur any liability with respect to any
warranties of any nature whatsoever, whether pursuant to the \[Conveyance Agreement/Ground
Lease\]\] or otherwise, including, but not limited to, any warranties respectingsuitabilityfor
development, use, compliance with zoning, Developer’s title, Developer’s authority, habitability,
fitness for purpose or possession of the Building Pad.
7.4.Pad Transfereeis an End User and has not engaged and will not engage in a
Prohibited Use upon the Building Pad.
8.Notices.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)three (3) Business Days
after such notice has been sent by U.S. Postal Service via certified mail, return receipt requested,
postage prepaid, and addressed to the other Party as set forth below; (c)the next Business Day
after such notice has been deposited with an overnight delivery service reasonably approved by
the Parties (Federal Express, Overnite Express, United Parcel Service and U.S. Postal Service are
deemed approved by the Parties), postage prepaid, addressed to the Party to whom notice is
being sent as setforth below with next-business-day delivery guaranteed, provided that the
sending Party receives a confirmation of delivery from the delivery service provider; or (d)when
transmitted if sent by facsimile transmission or email to the fax number or email address set forth
below; provided that notices given by facsimile or email shall not be effective unless either (i)a
duplicate copy of such notice is promptly sent by any method permitted under this Section18.6
other than by facsimile or email (provided that the recipient Party need not receive such
duplicate copy prior to any deadline set forth herein); or (ii)the receiving Party delivers a written
confirmation of receipt for such notice either by facsimile, email or any other method permitted
under thisSection. Any notice given by facsimile or email shall be deemed received on the next
Business Day if such notice is received after 5:00 p.m. (recipient’s time) or on a non-Business
Day. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows:
Tustin Regency DDA Attachment 22A Pad Transfer Non-ATTACHMENT 22ACity of Tustin/Regency Centers DDA
Disturbance Agt 6-17-2015 (Agd)(4) FINAL.Docx
-11-September29, 2015
City:Jeffrey C. Parker, City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
Fax: 714-838-1602
Email: jparker@tustinca.org
With a copy to:David Kendig
Woodruff Spradlin & Smart, APC
555 Anton Boulevard, #1200
Costa Mesa, CA 92626
Fax: (714) 415-1183
Email: dkendig@wss-law.com
Developer:_________________
_________________
_________________
_________________
With a copy to:_________________
_________________
_________________
_________________
Pad Transferee:_________________
_________________
_________________
_________________
With a copy to:_________________
_________________
_________________
_________________
Any Party may by written notice to the other Party in the manner specifiedin this
Agreement change the address to which notices to such Party shall be delivered.
9.Preparation Costs.Developer shall pay to the City the City’s out-of-pocket fees and
expenses, including legal fees, incurredwith respect to the preparation and delivery of this
Agreement.
10.Miscellaneous.
Tustin Regency DDA Attachment 22A Pad Transfer Non-ATTACHMENT 22ACity of Tustin/Regency Centers DDA
Disturbance Agt 6-17-2015 (Agd)(4) FINAL.Docx
-12-September29, 2015
10.1.Agreement Supersedes.This Agreement supersedes any inconsistent provision of
the \[Conveyance Agreement/Ground Lease\].
10.2.Modification.No amendment, change, modification or supplement to this
Agreement shall be valid and bindingon the Parties unless in writing, signed by all of the
Parties, acknowledged by a notary public and duly recorded in the Official Records.
10.3.Applicable Law.This Agreement shall be governed by, interpreted under,
construed and enforced in accordance with the laws of the State of California, irrespective of
California’s choice-of-law principles.The parties hereto agree that the resolution of any dispute
between or among them, or any of them, shall be resolved in accordance with the procedures and
in the venue and subject to the service of process and other provisions set forth in Section 18.1 of
the DDA.
10.4.Legal Fees and Costs. If any Party to this Agreement institutes any action, suit,
counterclaim or other proceeding for any relief against another Party, declaratory or otherwise
Action
(collectively an “”), to enforce the terms hereof or to declare rights hereunder or with
respect to any inaccuracies or material omissions in connection with any of the covenants,
representations, warranties or obligations on the part of the other Party to this Agreement, then
the Prevailing Party in such Action shall be entitled to have and recover of and from the other
Party all costs and expenses of the Action, including reasonable attorneys’ fees andcosts
incurred in bringing and prosecuting such Action and/or enforcing any judgment, order, ruling or
Decision
award (collectively, a “”) granted therein, all of which shall be deemed to have accrued
on the commencement of such Action and shall be paid whether or not such Action is prosecuted
to a Decision. Any Decision entered in any final judgment shall contain a specific provision
providing for the recovery of all costs and expenses of suit, including reasonable attorneys’ fees
Costs
and expert fees and costs (collectively “”) incurred in enforcing, perfecting and executing
such judgment. For the purposes of this paragraph, Costs shall include in addition to Costs
incurred in prosecution or defense of the underlying action, reasonable attorneys’ fees, costs,
expenses and expert fees and costs incurred in the following: (a)post judgment motions and
collection actions; (b)contempt proceedings; (c)garnishment, levy, debtor and third party
examinations; (d)discovery; (e)bankruptcy litigation; and (f)appeals of any order or judgment.
Prevailing Party
“” within the meaning of this Section18.2 includes a Party who agrees to
dismiss an Action in consideration for the other Party’s payment of the amounts allegedly due or
performance of the covenants allegedly breached, or obtains substantially the relief sought by
such Party.
10.5.No Partnership.Nothing contained in this Agreement shall be deemed or
construed to create a partnership, joint venture or any other relationship between the parties or
cause the Cityto be responsible in any way for the debts or obligations of Developeror Pad
Transferee.
10.6.Construction and Interpretation of Agreement.This Agreement shall be
construed and interpreted pursuant to the provisions of Section 18.11 of the DDA.
Tustin Regency DDA Attachment 22A Pad Transfer Non-ATTACHMENT 22ACity of Tustin/Regency Centers DDA
Disturbance Agt 6-17-2015 (Agd)(4) FINAL.Docx
-13-September29, 2015
10.7.Limitationson Damages Payable by the City.The provisions of Section 18.5.1,
18.5.2 and 18.5.3 of the DDA, are incorporated herein by this reference and as used therein, the
term “Developer” shall mean “e Developer and/or the Pad Transferee.”
10.8.No Waiver. No waiver of any provision or consent to any action under this
Agreement shall constitute a waiver of any other provision or consent to any other action,
whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or
commit a Party to provide a waiver in the future except to the extent specifically set forth in
writing. All waivers of the provisions of this Agreement must be in writing and signed by the
appropriate authorities for the City and Developer and all amendments hereto must be in writing
and signed by the appropriate authorities of the City and Developer.
10.9.Successors and Assigns. This Agreement and the covenants, conditions,
restrictions, obligations, rights and benefits contained herein are hereby agreed by Developer,
Pad Transfereeand the City to be covenants running with the land and enforceable as equitable
servitudes for the benefit of the City and against the \[Retail Parcels/Healthcare Parcels\]and the
Building Pad, and are hereby declared to be and shall be binding upon the Building Pad,
Developer, Pad Transfereeand the successors and assigns of Developer and/or Pad Transferee
owning or leasing all or any portion of the Building Pad.Notwithstanding the foregoing, no
Transfer, including by Transfer of Control, shall be valid or have any force or effect unless the
City shall have provided its prior written consent thereto as may be required by the DDA.
10.10.Counterparts.This Agreement may be executed in two or more separate
counterparts, each of which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This
Agreement shall not be effective until the execution and delivery by the Parties of at least one set
of counterparts. The Parties agree to recognize execution of this Agreement by facsimile or
other electronically transmitted signatures; provided that such execution by facsimileor
electronic transmission shall not be effective unless a manually executed copy of the signature
page is promptly sent by U.S. Postal Service, postage prepaid or overnight delivery service or is
hand delivered to the Parties. The Parties hereby authorize each other to detach and combine
original signature pages and consolidate them into a single identical original. Any one of such
completely executed counterparts shall be sufficient proof of this Agreement.
{signatures commence on following page}
Tustin Regency DDA Attachment 22A Pad Transfer Non-ATTACHMENT 22ACity of Tustin/Regency Centers DDA
Disturbance Agt 6-17-2015 (Agd)(4) FINAL.Docx
-14-September29, 2015
IN WITNESS WHEREOF, the Partieshereto have caused this Agreement to be duly
executed as of the date first above set forth.
“CITY”
City of Tustin
Dated: ______________________
By: __________________________________
ATTEST:Jeffrey C. Parker
City Manager
By:__________________________
Erica Rabe, City Clerk
APPROVED AS TO FORM
By:
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
Special Tustin Counsel
By:
Amy E. Freilich
DEVELOPER:
1C TUSTIN LEGACY, LLC,
a Delaware limited liability company
By:Regency Centers, L.P.,
a Delaware limited partnership
Its Sole Member
By:Regency Centers Corporation,
a Florida corporation
Its General Partner
Dated: __________________
By:
John Mehigan
Vice President
“
Tustin Regency DDA Attachment 22A Pad Transfer Non-ATTACHMENT 22ACity of Tustin/Regency Centers DDA
Disturbance Agt 6-17-2015 (Agd)(4) FINAL.Docx
-15-September29, 2015
“PAD TRANSFEREE”
\[_________________\],
a \[__________________\]
Dated: __________________By: ________________________
Name: ______________________
Title: ________________________
Tustin Regency DDA Attachment 22A Pad Transfer Non-ATTACHMENT 22ACity of Tustin/Regency Centers DDA
Disturbance Agt 6-17-2015 (Agd)(4) FINAL.Docx
-16-September29, 2015
ATTACHMENTNO.22B
CITY NON-DISTURBANCE AND ATTORNMENT AGREEMENT
FOR SPACE TENANT
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT
FROM RECORDING FEES PER
GOVERNMENTCODE 6103 AND27383.
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: City Manager
SpaceAboveThisLineReservedforRecorder'sUse
RECOGNITION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(Space Tenant)
THIS RECOGNITION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Agreement
(Space Tenant) (this "") is entered into this________ day of___________, _____,
Effective Date
(the "")by and among____________________________________, a
Space Tenant
___________________(""), \[1C TUSTIN LEGACY,LLC,aDelaware limited
liability company, the Developer under the DDA (defined below)/or _________________ the
Developer
Healthcare Developer under the DDA (defined below)\](""), and THE CITY OF
TUSTIN, CALIFORNIA, a municipal corporation duly organized and existing under and by
City
virtue of the laws of the State of California (the "").Each of Space Tenant,Developer, and
PartyParties
the Cityare referred to as a ""and all of them are sometimes referred to as the "."
WITNESSETH:
A.The City and Developer have entered into that certain Tustin Legacy Disposition
and Development Agreement for Disposition Parcel 1C, dated as of ________________, 20__
(including all attachments thereto), which,as the same may be amended, updated or modified
DDA
from time to time is referred to herein as the "",with respect to the real property described
Development Parcels
thereinas the "."The Development Parcels include certain land described
\["Retail Parcels"/"Healthcare Parcels"\]
in the DDA as the as legally described on Exhibit A
attached hereto and incorporated herein by this reference, which pursuant to the DDA, were
previously conveyed by the City to Developer.
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
Regency_Tustin_-_Non-
Disturbance_Agreement_(Space_Lease)Attachment 22B 8-27-
-1-September 29, 2015
15(Agd)(2) FINAL.Docx
B.A Memorandum of Tustin Legacy Dispositionand Development Agreement for
Memorandum
Parcel 1C (the "") executed by the Cityand Developer has been recorded against
the Development Parcels as Instrument No.______________in the official records of Orange
Official Records
County, California (the "").Initially capitalized terms set forth in this
Agreement and not defined herein shall have the meanings set forth therefor in the DDA.
C.Pursuant to the DDA, the following documents have been recorded in the Official
Records against all of the Development Parcels: (i) that certain Declaration of Special
Restrictions, dated as of_______________,20__and recorded as Instrument No.
Special Restrictions
______________in the Official Records (the ""), (ii) that certain Slope
Parcel Easement and Landscape Installation and Maintenance Agreementdated as of
_______________, 20__and recorded as Instrument No. ______________ (the
Slope/Landscape Agreement
"");and (iii)that certainDeclaration of Covenants, Conditions and
Restrictions dated as of _______________, 20__and recorded as Instrument No.
CC&Rs
______________ (the "").
\[Retail
D.Developer intends to lease to Space Tenant aportion of the
Parcels/Healthcare Parcels\]
commonly known as Suite___ and consisting of approximately
\[described/depicted\]
______ rentable square feet, as more particularly on ExhibitBattached
Premises
heretoand incorporated herein by this reference(the "")pursuant to that certain Lease,
Lease
datedas of ____________, 20__(the "").The legal parcel upon which the Premises are
Building Pad
located is referred to herein as the "". Under the terms and provisions of the DDA,
Space Tenant (i)is an End Userand (ii)does not intend to engage in a Prohibited Use upon the
Parcel or the Premises.
E.Pursuant to the DDA, Developer agreed to complete or cause to be completed
\[Retail Parcels/Healthcare Parcels\]
construction of certain improvements on the , including on
the Building Pad, within the time periods and subject to the additional terms and conditions set
forth in the DDA.
F.Under the terms of the DDA, Developer isobligated to comply with certain of the
requirementsof the Special Restrictions,the CC&Rs,the Slope/Landscape Agreement,and the
DDAwhich apply to the Building Pad including,without limitation,the following: (i) the
obligations of Developer under the DDA relating to the Building Pad;and(ii)the City'sRight of
Repurchase and the City'sRight of Reversion.
G.The Partiesdesire to enter into this Agreement in order to (i) establish certain
rights and remedies of City and Space Tenantwith respect to each other, and (ii)acknowledge
the City's Right of Repurchase and Right of Reversion with respect to the Parcel and the
Premises under the DDA,allon the terms and conditions specified in this Agreement.
NOW, THEREFORE, in consideration of their mutual covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Partieshereby agree as follows:
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
Regency_Tustin_-_Non-
Disturbance_Agreement_(Space_Lease)Attachment 22B 8-27-
-2-September 29, 2015
15(Agd)(2) FINAL.Docx
1.Non-Disturbance and Attornment.This Agreement shall become effective on the date of
Lease Commencement Date
delivery of the Premises by Developerto Space Tenant (the "").If
the City succeeds to the Developer's interest as landlord under the Leasefollowing the Lease
Commencement Date then,as further set forth in and subject to the terms of this Agreement,
including without limitation, the provisions of Sections 5.2and5.3below,the City shall not
terminate or disturb Space Tenant's occupancy or possession of the Building Pad and the
Premises and Space Tenant shall attorn to City and recognize City as landlord under the Lease.
2.The City'sRights.
2.1.Right of Repurchase.Space Tenant hereby acknowledges that ifDeveloper shall
be in Material Default under any of the DDA, the Quitclaim Deed,the CC&Rs or the Special
Property Documents
Restrictions(collectively, the ""), the City shall have available to it all
remedies set forth in the Property Documents, as the case may be.
2.2.Right of Reversion.Space Tenant acknowledges that the Cityhas the right, but
not the obligation, to exercise theRight of Repurchase under Section 16.3 of the DDA and Right
of Reversion under Section16.4of the DDA shall continue in full force and effect.
2.3.Additional Rights of City.Nothing in this Agreement shall impair or modify,as
to Developer, Developer's interest in the Development Parcels, Space Tenant or Space Tenant's
Space Tenant Interests
interests in the Building Pad and the Premises (the ""). Space Tenant
acknowledges that the DDA contains provisions that may, among other things, result in the City
exercisingthe Right of Reversion or Right of Repurchase as to other portions of the
Development Parcels and/or as to interests of other Persons in the Building Pad, or exercising its
other remedies set forth in the Property Documents, and such exercise may result in, among
other things,all or any portion of the Development Parcels being developed by a Person other
than Developer or Healthcare Developerand being developed for currently unforeseen uses.
2.4.On-Going Obligations of Developer.Notwithstandinganything to the contrary
contained in this Agreement or in the Lease:(a)Developer, its successors and assigns,Space
Tenant, its successors and assigns, and the Building Padand the Premises are and shall remain
subject to this Agreement, the DDA, the Special Restrictions, the Slope/Landscape Agreement,
and the CC&Rs; and (b)Developer hereby acknowledges and agrees that it retains all the
obligations under the DDA, the Special Restrictions, the Slope/Landscape Agreement and the
CC&Rsrelating to the Building Pad, including,but not limited to, construction of the
Improvementsandperformance of Developer's maintenanceand indemnityobligations.
3.City as Successor to Developer.If the City succeeds to the interest of Developer under
the Lease, whether through or in lieu of the exercise by the City of any of its rights and/or
remedies pursuant to this Agreement, the Leaseor the Property Documentsor otherwise (the
Remedies
""), then in such event(and only in such event):
3.1.The City, in its capacity as the successor to Developer's interest under the Lease,
and any other successor in interest tosuch interest under the Lease, and their respective
successors and assigns,and any person claiming the same by, through or under anyof the
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
Regency_Tustin_-_Non-
Disturbance_Agreement_(Space_Lease)Attachment 22B 8-27-
-3-September 29, 2015
15(Agd)(2) FINAL.Docx
City Successor
foregoing(any of the foregoing, the "")shall be subject to and shall comply with
the terms and provisions of this Section4.
3.2.Provided that (i)Space Tenantis not in default of its payment or performance
obligations underthis Agreement or under the Leasebeyond any applicable grace or cure period
set forth herein or therein,and (ii)Space Tenantis not in Material Default in the performance or
observance of any term, covenant or conditionof the Property Documents,to the extent
applicable to Space Tenant, City Successorshall not terminate or disturb Space Tenant's
occupancy or possession of the Building Pador the Premises,and the rights of Space Tenant
under the Leaseshall remainin full force and effect, except as otherwise expresslypermitted in
accordance with the terms of this Agreement or theterms of the Lease.
3.3.Space Tenantshall attorn to the City Successorand recognize the City Successor
as“landlord”under the Lease.Space Tenant shall perform, and be bound under, all of the terms,
covenants and conditions of the Lease, including, but not limited to, the obligation to pay all
amounts owed under the Lease,including without limitation, rent and any percentage rent,until
the expiration or earlier termination of the Lease, including any renewal options which are
exercised in accordance with the terms of the Lease.Space Tenantshall execute and deliver to
the City Successorsuchfurther assurance and other documents,including a new lease upon the
same terms and conditions as the Lease, confirming the foregoing, as the City Successormay
reasonably request. Notwithstanding the foregoing, nothing containedin this Agreementshall be
interpreted to release Developer, the Building Padand/or Space Tenant fromthe obligations
imposed under the Property Documents.
3.4.Any interestof the City Successorunder the Leaseacquiredby the City shall not
merge with any other interests ofCity in the Building Pad,including without limitation any right,
title or interest of the City under theProperty Documents, the Right of Repurchase and the Right
of Reversionand/orother rights or remedies available to the City under any of theProperty
Documents.
3.5.The following shall apply to each City Successor:
3.5.1.The City Successorshall not be liable for or bound by any act
or omission of Developer or any predecessor in interest to such City Successor.
3.5.2.The City Successorshall notbe liable for payment of any sums
due from Developer to Space Tenantincluding, without limitation, (x)any payment or credit in
the nature of a tenantimprovement allowance or comparable item, any security deposit (unless
the City Successorshall have actually received and failed to refund such deposit in accordance
with the terms of the Lease), (y)payments,including,without limitation,paymentsof rent or
additional rentmade by Space Tenantfor more than one(1) month in advance of the due date
thereunder to Developer or any predecessor in interestto such a City Successor,or (z)payments
of any kind owing from Developer to Space Tenant under theLeaseor otherwise, including,
without limitation, any refunds, payment, reimbursementor damages owed from Developer to
Space Tenant. Without limiting the foregoing, with respect to all such items, Space Tenant
agrees to look solely to Developer and any Guarantor of Developer and not to any City
Successor.
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
Regency_Tustin_-_Non-
Disturbance_Agreement_(Space_Lease)Attachment 22B 8-27-
-4-September 29, 2015
15(Agd)(2) FINAL.Docx
3.5.3.Space Tenant hereby waives and relinquishes with respect to
each City Successorall offsets, counterclaims anddefenses which Space Tenant may have
against Developer or any predecessorin interest thereof (including, without limitation, any
offset, abatement or right of deduction provided for under the terms of the Lease); providedthat
nothing herein shall be deemed to relieve aCity Successorfrom performing its obligations as
landlord under the Leasewith respect to obligations that arise solely from and after the datesuch
City Successorsucceeds to the position of landlord under the Leaseunless specifically set forth
{INSERT ANY SPECIFIC LEASE PROVISIONS HERE}
in this Agreement.
3.5.4.The City Successorshall not be required to rebuild, repair or
restore anydamage to the Building Pador the Premises,or any portion thereof,caused by the
occurrence of an uninsuredcasualty or following a condemnation of all or any portion of the
Building Padfor whichthere are insufficient condemnation proceeds to pay the cost of such
rebuilding, repair or restoration.
3.5.5.The City Successorshall notbeliable with respect to any
obligation to complete any site work or build out any improvements for the Building Pador the
Premises, including, without limitation, any portion of theMinimum Horizontal Improvements,
any other Horizontal Improvements, the On-Lot Improvements, the Vertical Improvements, any
tenantimprovements,or any other improvements to be built upon the Building Pador the
Development Parcels, and/or any obligation to pay any tenantimprovementallowance to Space
Tenant inconnection with the Lease.
3.5.6.Without limiting the applicability of any other provision of this
Agreement, in no event shall City Successorbeliablefor any payments required tobe made by
the landlord under the Leasefor any period prior to the date the City Successorobtains title to
the Building Pad.
3.5.7.Each City Successorshall be relieved of any obligation of the
landlord under the Leaseaccruing after itstransfer, sale, assignment or conveyance to another
person or entity of the title to the Building Padand the landlord's interest under the Lease.
3.6.Hazardous Materials.
3.6.1.Developer andSpace Tenant hereby waive and release the City
Successorfrom any claims either of them may have arising out of or related to Hazardous
Materials located in, on, under, or around the Building Padand/or the Premises.
3.6.2.Nothing in this Agreement shall be construed to limit or restrict
in any way Developer'senvironmental indemnities contained in Section 10.2of the DDA, which
remain in full force and effect, unmodified.
3.6.3.The City Successorshall notbeliableor responsible for any
enforcement, cleanup, removal, remedial or other governmental orregulatory actions, or for any
agreements or orders threatened, instituted or completed pursuant to any federal,state or local
laws, ordinances, regulations or policies relating to any Hazardous Materials, or for any
indemnities under the Leaseconcerning the presence, release or discharge of any Hazardous
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
Regency_Tustin_-_Non-
Disturbance_Agreement_(Space_Lease)Attachment 22B 8-27-
-5-September 29, 2015
15(Agd)(2) FINAL.Docx
Materials on, under or about the Building Padand/or the Premises, or for anypermits and waste
discharge requirements issued to and/or required of Space Tenant or Developer by any
governmental body or by the City, or any claims madeor threatened by any person or
governmental body or by the City against Space Tenantor Developer or the Building Pador the
Premisesrelating to damage, contribution, cost recovery compensation, loss or injury resulting
from the presence, release or discharge of any Hazardous Materials on, under or about the
Building Padand/or the Premises.
4.Additional Space Tenant Agreements.Space Tenant and Developer, as applicable, each
makesthecovenants and agreements to the City set forth in this Section5.
4.1.Except for the payment of the first month's rent,Space Tenantshall not pay, and
Developer shall not accept, any payment of rent or additional rentmore than thirty (30) calendar
days in advance of the applicable due date under the Lease.
4.2.Space Tenant shall send a copy of any notice or statement under the Lease
pertaining to Developer's default thereunder to City at the same time such default notice or
statement is sent to Developer. If Developer shallhave failed to cure such default within the
time period provided for in the Lease,Space Tenant shallnot exercise any remedies available by
virtue of such default unless (x)Space Tenant shallhave notifiedCity in writing of Developer's
failure to cure such default and (y)Space Tenant shall have afforded the City an additional sixty
(60) calendar daysfrom the receipt of such noticeto cure such default or if such default cannot
be cured within sixty(60) calendar days, then such additional time as may be necessary if, within
such sixty(60)-day period, the City commences and thereafter diligently pursues the cure of such
default (including, without limitation, commencement of possessory proceedings, if necessary to
effect such cure). If the City commencesto cure a Developer default, the Leaseshall remain in
fullforceand effect during the period that such cure is being diligently pursued. Nothing in this
Agreement shall require the City to cure any Developer default under the Lease,and the exercise
of such cure rights by the City shall be a right and not an obligation of the City.
4.3.Space Tenant shall, upon the execution of this Agreement and thereafter upon the
request of aCity Successor, provide the City or another City Successorwith an estoppel
certificate, in form and substance attached to the Leaseor otherwise reasonably acceptable to the
City Successor, stating, among other things, the following: (i)that a complete, true and correct
copy of the Leaseis attached thereto and is unmodified and in full force and effect (or, if there
have been modifications, that such Leaseis in full force and effect, as modified and stating the
modifications or if such Leaseis not in full force and effect, so stating);(ii)the dates, if any, to
which any rent and other sums payable under the Leasehave been paid;(iii)to Space Tenant's
knowledge, there are no defaults, claims thereof,any condition which, with the giving of notice
and/or the passage of time,or both, could become a default by either the landlordor Space
Tenant with respect to their respective obligations under the Leaseor under the performance of
any term, covenant or condition contained in the Lease; (iv)Space Tenanthas no claim, charge,
defense or offset against anyamounts,including,without limitation, rentspayable under the
Lease;(v)that Space Tenant is not aware of any default which has not been cured,except as to
defaults specified in said certificate;(vi)that Space Tenanthas no right to terminate the Lease
before its stated termination date.
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
Regency_Tustin_-_Non-
Disturbance_Agreement_(Space_Lease)Attachment 22B 8-27-
-6-September 29, 2015
15(Agd)(2) FINAL.Docx
4.4.All claims, demands or causes of action which Space Tenant may have or may
have had against Developer as of the dateCity succeeds to the position of Developer under the
Lease, under any provisions of, or with respect to the Lease, or on account of any matter,
condition or circumstance arising out of the relationship of Developer and Space Tenant under
the Lease,Space Tenant's occupancy of the Building Padand the Premises, orDeveloper's prior
ownership thereof, shall be enforceable solely against Developer to the extent provided in the
Leaseandneither the City nor any other City Successor shall be subject to any such claim,
demand or cause of action.
5.Certain Agreements by Developer and Space Tenant.Developer, as Developer under the
DDA andas landlord under the Lease,and Space Tenant, as tenant under the Lease,each
represent, warrant, covenant,acknowledge and agree for themselves and their heirs, successors
and assigns, that:
5.1.Except as expressly set forth herein, this Agreement does not constitute a waiver
by City of any of its rights under theProperty Documents.Except as expressly set forthherein,
this Agreement does notin any way release Developer and/or Space Tenant, as applicable, from
their respective obligations to comply with the terms, provisions, conditions, covenants,
agreements and clauses of theProperty Documents, including, without limitation, the release set
forth in Section4.5.2(f)of the DDA, the indemnity set forth in Section5.5of the DDA, the
insurance required in Section11of the DDAand the indemnity, environmental indemnity and
related requirements set forth in Sections10.1through 10.7of the DDA.
5.2.City has no obligation nor shall the Cityincur any liability with respect to any
warranties of any nature whatsoever, whether pursuant to the Leaseor otherwise, including, but
not limited to, any warranties respectingsuitabilityfordevelopment, use, compliance with
zoning, Developer's title, Developer's authority, habitability,fitness for purpose or possession of
the Building Pador the Premises.
5.3.Space Tenant is an End User and has not engaged and will not engage in a
Prohibited Use upon the Building Pador within the Premises.
6.Notices.All notices, demands, consents, requests and other communications required or
permitted to be given under this Agreement shall be in writing and shall be deemedconclusively
to have been duly given (a)when hand delivered to the other Party; (b)three (3) Business Days
after such notice has been sent by U.S. Postal Service via certified mail, return receipt requested,
postage prepaid, and addressed to the other Party as set forth below; (c)the next Business Day
after such notice has been deposited with an overnight delivery service reasonably approved by
the Parties (Federal Express, Overnite Express, United Parcel Service 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;or (d)when
transmitted if sent by facsimile transmission or email to the fax number or email address set forth
below; provided that notices given by facsimile or email shall not be effective unless either (i)a
duplicate copy of such notice is promptly sent by any method permitted under this Section18.6
other than by facsimile or email (provided that the recipient Party need not receive such
duplicate copy prior to any deadline set forth herein); or (ii)the receiving Party delivers a written
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confirmation of receipt for such notice either by facsimile, email or any other method permitted
under this Section. Any notice given by facsimile or email shall be deemed received on the next
Business Day if such notice is received after 5:00 p.m. (recipient's time) or on a non-Business
Day. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows:
City:Jeffrey C. Parker, City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
Fax: 714-838-1602
Email: jparker@tustinca.org
With a copy to:David Kendig
Woodruff Spradlin & Smart, APC
555 Anton Boulevard, #1200
Costa Mesa, CA 92626
Fax: (714) 415-1183
Email: dkendig@wss-law.com
Developer:_________________
_________________
_________________
_________________
With a copy to:_________________
_________________
_________________
_________________
Space Tenant:_________________
_________________
_________________
_________________
With a copy to:_________________
_________________
_________________
_________________
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.
7.Preparation Costs.Developer shall pay to the City the City's out-of-pocket fees and
expenses, including legal fees, incurredwith respect to the preparation and delivery of this
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Agreement.
8.Miscellaneous.
8.1.Agreement Supersedes.This Agreement supersedes any inconsistent provision of
the Lease.
8.2.Modification.No amendment, change, modification or supplement to this
Agreement shall be valid and bindingon the Parties unless in writing, signed by all of the
Parties, acknowledged by a notary public and duly recorded in the Official Records.
8.3.Applicable Law.This Agreement shall be governed by, interpreted under,
construed and enforced in accordance with the laws of the State of California, irrespective of
California's choice-of-law principles.The parties hereto agree that the resolution of any dispute
between or among them, or any of them, shall be resolved in accordance with the procedures and
in the venue and subject to the service of process and other provisions set forth in Section18.1of
the DDA.
8.4.Legal Fees and Costs. If any Party to this Agreement institutes any action, suit,
counterclaim or other proceeding for any relief against another Party, declaratory or otherwise
Action
(collectively an ""), to enforce the terms hereof or to declare rights hereunder or with
respect to any inaccuracies or material omissions in connection with any of the covenants,
representations, warranties or obligations on the part of the other Party to this Agreement, then
the Prevailing Party in such Action shall be entitled to have and recover of and from the other
Party all costs and expenses of the Action, including reasonable attorneys'fees and costs incurred
in bringing and prosecuting such Action and/or enforcing any judgment, order, ruling or award
Decision
(collectively, a "") granted therein, all of which shall be deemed to have accrued on the
commencement of such Action and shall be paid whether or not such Action is prosecuted to a
Decision. Any Decision entered in any final judgment shall contain a specific provision
providing for the recovery of all costs and expenses of suit, including reasonable attorneys'fees
Costs
and expert fees and costs (collectively "") incurred in enforcing, perfecting and executing
such judgment. For the purposes of this paragraph, Costs shall include in addition to Costs
incurred in prosecution or defense of the underlying action, reasonable attorneys'fees, costs,
expenses and expert fees and costs incurred in the following: (a)post judgment motions and
collection actions; (b)contempt proceedings; (c)garnishment, levy, debtor and third party
examinations; (d)discovery; (e)bankruptcy litigation; and (f)appeals of any order or judgment.
Prevailing Party
""within the meaning of this Section18.2includes a Party who agrees to
dismiss an Action in consideration for the other Party's payment of the amounts allegedly due or
performance of the covenants allegedly breached, or obtains substantially the relief sought by
such Party.
8.5.No Partnership.Nothing contained in this Agreement shall be deemed or
construed to create a partnership, joint venture or any other relationship between the parties or
cause the City to be responsible in any way for the debts or obligations of Developeror Space
Tenant.
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8.6.Construction and Interpretation of Agreement.This Agreement shall be
construed and interpreted pursuant to the provisions of Section 18.11of the DDA.
8.7.Limitations on Damages Payable by the City.The provisions of Sections18.5.1,
18.5.2 and 18.5.3of the DDA, are incorporated herein by this reference and as used therein, the
term "Developer"shall mean “Developer and/or Space Tenant.”
8.8.No Waiver. No waiver of any provision or consent to any action under this
Agreement shall constitute a waiver of any other provision or consent to any other action,
whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or
commit a Party to provide a waiver in the future except to the extent specifically set forth in
writing. All waivers of the provisions of this Agreement must be in writing and signed by the
appropriate authorities for the City and Developer and all amendments hereto must be in writing
and signed by the appropriate authorities of the City and Developer.
8.9.Successors and Assigns. This Agreement and the covenants, conditions,
restrictions, obligations, rights and benefits contained herein are hereby agreed by Developer,
Space Tenant and the City to be covenants running with the land and enforceable as equitable
servitudes for the benefit of the City and against the \[Retail Parcels/Healthcare Parcels\]and the
Building Pad, and are hereby declared to be and shall be binding upon the Building Pad,
Developer, Space Tenant and the successors and assigns of Developer and/orSpace Tenant
owning or leasing all or any portion of the Building Padand the Premises, as applicable.
Notwithstanding the foregoing, no Transfer, including by Transfer of Control, shall be valid or
have any force or effect unless the City shall have provided its prior written consent thereto as
may be required by the DDA.
8.10.Counterparts.This Agreement may be executed in two or more separate
counterparts, each of which, when so executed, shall be deemed to be an original, and all of
which, when taken together, constitute one and the same instrument. This Agreement shall not
be effective until the execution and delivery by the Parties of at least one set of counterparts.
The Parties agree to recognize execution of this Agreement by facsimile or other electronically
transmitted signatures; provided that such execution by facsimile or electronic transmission shall
not be effective unless a manually executed copy of the signature page is promptly sent by U.S.
Postal Service, postage prepaid or overnight delivery service or is hand delivered to the Parties.
The Parties hereby authorize each other to detach and combine original signature pages and
consolidate them into a single identical original. Any one of such completely executed
counterparts shall be sufficient proof of this Agreement.
{signatures commence on following page}
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
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IN WITNESS WHEREOF, the Partieshereto have caused this Agreement to be duly
executed as of the date first above set forth.
"CITY"
City of Tustin
Dated: ______________________
By: __________________________________
ATTEST:Jeffrey C. Parker
City Manager
By:__________________________
Erica Rabe, City Clerk
APPROVED AS TO FORM
By:
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
Special Tustin Counsel
By:
Amy E. Freilich
DEVELOPER:
1C TUSTIN LEGACY, LLC,
a Delaware limited liability company
By:Regency Centers, L.P.,
a Delaware limited partnership
Its Sole Member
By:Regency Centers Corporation,
a Florida corporation
Its General Partner
Dated: __________________
By:
John Mehigan
Vice President
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
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"SPACE TENANT"
\[_________________\],
a \[__________________\]
Dated: __________________By: ________________________
Name: ______________________
Title: ________________________
}
{Notary acknowledgements on following pages
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and thatby his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
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EXHIBIT "A"
TO
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Legal Descriptionof \[Retail Parcels / Healthcare Parcels\]
\[to be inserted\]
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
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EXHIBIT "B"
TO
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
\[Depiction/Description\]of Premises
\[to be inserted\]
ATTACHMENT 22BCity of Tustin/Regency Centers DDA
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ATTACHMENT23
FORMOFHEALTHCAREPERMITTEDMORTGAGEE
SUBORDINATIONAGREEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
SUBORDINATION AGREEMENT
Agreement
THIS SUBORDINATION AGREEMENT (this “”) is entered into as of the
___day of _________, 20__, by and between
_____________________________________________________LenderTHE
(the “”), and
CITY OF TUSTIN, CALIFORNIA
, a municipal corporation duly organized and existing under
City
the laws of the State of California (the “”).
RECITALS
A.The City and 1C Tustin LegacyLLC, aDelaware limited liability company
Developer
(“”) entered into that certain Tustin Legacy Disposition and Development Agreement
DDA
For Parcel 1Cdated as of ______________, 2015(the “”), pursuant to which the City has
conveyed to Developer certain real property including the real property legally described on
Land
Exhibit A attached hereto (the “”).Thereafter Developerassigned its rights and obligations
_____________\[insert name of Healthcare
with respect to the Land to ______________
Developer\]Borrower
(“”) by an Assignment and Assumption Agreement (Healthcare Parcel)
dated _______________. In accordance with the DDA, the Land is or will be improved with a
Improvements
Healthcare Project (the “”). The Land, the Improvementsand related personal
and other property described in the Senior Security Instrument (defined herein) and defined
Mortgaged Property
therein constitute the “”.Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forthin the DDA.
B.Prior to the recordation of this Agreement, the City and the Borrower have
executed and have caused to be recorded against title to the Land in the official records of the
Official Records
Office of the Orange County Recorder, in Orange County, California (“”) the
following: (a) those certain Declaration for Special Restrictions, dated as of _____________ (the
Special Restrictions
“”)and recorded in the Official Records on _____________ as Instrument
Quitclaim Deed
No. __________;(b)that certain Quitclaim Deed (“”), dated
_____________andrecorded in the Official Records on ______________as Instrument No.
__________, which Quitclaim Deed conveyed to Developer the fee title to the Land , subject to
ATTACHMENT 23City of Tustin/Regency Centers DDA
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certain restrictions and limitations set forth in the Quitclaim Deed; (c)that certain Memorandum
Memorandum
of DDA, dated as of ____________(“”)and recorded in the Official Records on
_______________as Instrument No. __________;(d) that certain Development Agreement,
Development Agreement
dated as of __________ (“”) and recorded in the Official Records on
_____________as Instrument No. _________; (e) that certain Slope Parcel Easement and
Landscape
Landscape Installation and Maintenance Agreementdated as of __________ (“
Agreement
”) and recorded in the Official Records on _____________ as Instrument No.
_________ , and (f) that certain Declaration of Covenants, Conditions and Restrictionsdated as
CC&R’s
of __________ (“”) and recorded in the Official Records on _____________ as
Instrument No.__________________..The Special Restrictions were recorded prior to the
Quitclaim Deedand Developer’s fee title to the Land is subject to the encumbrance of the
Special Restrictions.
Lender
C.Borrower has applied to _____________________ (“”) for a loan in the
Loan
maximum principal amount of $_________ (the “”) for the acquisition, construction,
rehabilitation, development, equipping and/or operation of aHealthcare Project on the Land.
D.The Loan is evidenced by the Note (as defined below) and shall be advanced
pursuant to that certain Loan Agreement dated as of ______________between Borrower and
Loan Agreement
Lender (“”).
E.The Loan is secured by, among other things, the Security Instrument (as
hereinafter defined), andthe proceeds of the Loanwill be advanced to Borrower pursuant to the
Loan Agreement.
F.As a condition to the making of the Loan, Lender requires and Borrower requests
that the Cityand Lenderexecute and deliver this Agreement.
NOW, THEREFORE,
for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1.DEFINITIONS.
The following terms, when used in this Agreement
(including, as appropriate, when used in the above recitals), shall have the following meanings.
“Bankruptcy Proceeding”
(a)means any bankruptcy, reorganization,
insolvency, composition, restructuring, dissolution, liquidation, receivership, assignment
for the benefit of creditors, or custodianship action or proceeding under any federal or
state law with respect to the Borrower, any guarantor of any of the Indebtedness, any of
their respective properties, or any of their respective partners, members, officers,
directors, or shareholders.
“Borrower”
(b)means all Persons identified as “Borrower” in the
Recitals of this Agreement, together with their successors and assigns, and any other
Person who acquires title to the Mortgaged Property after the date of this Agreement;
provided that the term "Borrower" shall not include the Lender in the event that the
Lender may acquire title to the Mortgaged Property.
ATTACHMENT 23City of Tustin/Regency Centers DDA
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“Casualty”
(c)means the occurrence of damage to or loss of all or
any portion of the Mortgaged Property by fire or other casualty.
“City”
(d)means the Person named as such in the first paragraph of
this Agreement.
“Enforcement Action”
(e)means any of the following actions taken
by or at the direction of the City: the exercise of the City’s Right of Reversion under
Section 16.4 of the DDA, the exercise of the City’s Right of Repurchase under Section
16.3 of the DDA, the obtaining of or seeking of the appointment of a receiver, the
seeking of default interest or charges, the taking of possession or control of any of the
Mortgaged Property, the commencement of any suit or other legal, administrative, or
arbitration proceeding based upon the Property Documents, or the exercise of any other
remedyagainst the Borrower,excepting, however, any rights or actions taken by the City
in the exercise of its police powers.
“Enforcement Action Notice”
(f)means a written notice from the
City to the Lender, given following one or more Property DocumentBreaches setting
forth in reasonable detail the nature of the breach by Borrower
Foreclosure Event
(g)“” shall mean the foreclosure of the Security
Instrument (or any sale thereunder), whether by judicial proceedings, by virtue of any
power of sale under the Security Instrument, by acceptance of a deed-in-lieu of
foreclosure(or similar consensual conveyance of the Mortgaged Property to Lender or
any of its affiliates or nominees or designees), or by any other conveyance of all or any
portion of the Mortgaged Property and/or Improvements by other appropriate
proceedings in the nature of a foreclosure, resulting in the sale, lease or other conveyance
of all or any portion of the Mortgaged Property and/or Improvementsto Lender or any of
its affiliates or nominees or designees.
“Indebtedness”
(h)means the “Indebtedness” as defined in the
Security Instrument.
“Lender”
(i)means the entity named as such in the first paragraph of
this Agreement and any other Personwhichsubsequently becomes the holder of the Note.
“Loan Documents”
(j)means the “Loan Documents” as defined in
the Loan Agreement.
“Loan Default”
(k)means any act, failure to act, event, condition, or
occurrence which constitutes, or which with the givingof notice or the passage of time,
or both, would constitute, an “Event of Default” as defined in the Security Instrument.
“Note”
(l)means the Promissory Note, dated as of _________by
Borrower in favor of Lender, as endorsed to Lender.
“Property Documents”
(m)means the DDA, the Memorandum, the
Development Agreement, the Landscape Agreement, the CC&R’s and all other
ATTACHMENT 23City of Tustin/Regency Centers DDA
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documents at any time evidencing, securing, guaranteeing, or otherwise delivered in
connection with the DDA, as the same may be amended from time to time.
“Property DocumentBreach”
(n)means any act, failure to act,
event, condition, or occurrence that allows (but for any contrary provision of this
Agreement), or which with the giving of notice or the passage of time, or both, would
allow (but for any contrary provision of this Agreement), the City to take an Enforcement
Action.
“Property DocumentDefault”
(o)means the City has delivered to
Lender an Enforcement Action Notice and Developer and Lender have failed to cure the
Property DocumentBreach within the cure period granted to Lender as a Permitted
Mortgagee under the applicable Property Documentfor the applicable type of Property
DocumentBreach.
“Security Instrument”
(p)means that certain \[Deed of Trust\],
recorded ________ on _________ in the Official Records as Instrument Number
___________.
(q)
2.SUBORDINATION.
(a)Subject to the provisions of Section 2(e)below, Lender hereby
subordinates the Security Instrument to the terms, covenants, conditions, operations, and
effects of each of the Property Documents.
(b)Without limiting the generality of the foregoing Section 2(a),
Lender expressly acknowledgesand specifically subordinates the Security Instrument to
all of the following specific provisions of the DDA:
(i)Therights of the City under the DDA with respect to the
Right of Purchase in favor of the City as set forth in Section 16.3of the DDA and the
Right of Reversion in favor of the City, as set forth in Section 16.4of the DDA. Lender
acknowledges that the City’s Right of Reversion is subject to termination under certain
conditions as set forthin Section 16.4.8of the DDA.
(ii)The rights of the City in Section 2 and in Section 17 of
theDDA;
(iii)Any other provisions of the DDA or any of the attachments
to the DDA required to interpret Sections 2, 16 or 17 of the DDA;
(iv)The Lender, alone, shall have the authority to act under the
DDA and the Security Instrument as the Permitted Mortgagee and the City shall be
entitled to rely on the authority of the Lender acting alone for all such purposes. All other
lenders and creditors of Borrower shall not be Permitted Mortgagees under the DDA or
be able to act for or on behalf of the Permitted Mortgagee. The foregoing shall be true
ATTACHMENT 23City of Tustin/Regency Centers DDA
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even if the Lender is acting as agent or lead lender pursuant to a participation agreement,
agency agreement, intra-creditor agreement or comparable arrangement.
(c)The foregoing subordination in Section 2(a)and in Section 2(b)
shall apply and continue notwithstanding (i) the actual date and time of execution,
delivery, recording, filing or perfection of each of the Loan Documents and each of the
Property Documents, and (ii) the respective rights of the Lenderand the Cityto obtain a
security interest in any collateral, including any collateral other than the Mortgaged
Property.
(d)Lender acknowledges that the Special Restrictions were recorded
prior to the Quitclaim Deed and constitute a lien on the Mortgaged Property prior in time
and superior to the lien of (i) any of the Property Documents and (ii) all of the Loan
Documents.
3.PERMITTED MORTGAGEE.
(a)The City hereby (a) consents to Borrower entering into the Loan
and (b) approves Lender as the “Permitted Mortgagee” (as such term is defined in the
DDA) under the Loan with respect to the Mortgaged Property. City hereby approves the
Security Instrument, after it is properly recorded as a first lien security instrument against
title to the Mortgaged Property, as a “Permitted Mortgage” (as such term is defined in
the DDA).
(b)Lender enters into this Agreement with the understanding that
Lender has certain rights as a Permitted Mortgagee under the DDA and that the exercise
of those rights are subject to the terms and conditions set forth inthe DDA, including
without limitationthe following: (i) the City’s Right of Repurchase and the City’s Right
of Reversion, each as set forth in Section 16 of the DDA and (ii) the terms and conditions
in Section 17 of the DDA (as of the date of this Agreement). If and to the extent that the
City exercises the City’s Right of Reversion, (i) the City shall take title to the Mortgaged
Property subject to the lien of the Security Instrument, (ii) the Cityshall not assume any
obligations of the Borrower under the Loan Documents or be obligated to comply with
any of the terms of any of the Loan Documents, and (iii)the City shall have the right, but
not the obligation, to cure any defaults under the Loan Documents pursuant to and in
accordance with Section 5 below.The City acknowledges that if the City consummates
an Enforcement Action,and the Security Instrument is not released as a result of the
EnforcementAction, in such case the Lender shall (subject to the limitations in Section
5(f) below) retain its remedies under the Loan Documents, because (A)the Person
(including the City) acquiring title to some or all of the Mortgaged Property shall not be
deemed to be a permitted transferee solely for purposes of interpretingLender’s available
remedies under theLoan Documents and (B) the Enforcement Action shall not be
deemed to be a permitted transfer of the Mortgaged Property solely for purposes of
interpreting Lender’s available remedies under the Loan Documents.
ATTACHMENT 23City of Tustin/Regency Centers DDA
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4.ADDITIONAL CITY REPRESENTATIONS AND COVENANTSOF
THE CITY AND LENDER.
(a)The City represents and warrants to the Lender as follows: (i)that
as of the date of this Agreement, to the actual knowledgeof the City Manager (without a
duty of inquiry),the Property Documents are in full force and effect; (ii)that the Property
Documents have not been modified or amendedfrom the executed copies of the Property
Documentsdelivered by the City to the Lenderconcurrently with the date of this
Agreement; and (iii)that the City has not delivered to Borrower any written notice of a
default or breach by Borrower under any Property Document; and (iv)that to the actual
knowledge of the City Manager (without a duty of inquiry), the City has not received
written notice from Borrower that any eventhas occurred, which with the giving of
notice or the passage of time, or both, would constitute a default under any Property
Document.
(b)The City shall deliver to the Lender a copy of each notice delivered
by the City to Borrower pursuant to the Property Documentspromptly afterthe City’s
delivery of such notice. The Lender shall deliver to the City in the manner required in
Section 5(b) a copy of each notice of a Loan Default delivered to the Borrower by the
Lender. Neither giving nor failing to give a notice to the Lender orCity pursuant to this
Section 4(a) shall affect the validity of any notice given by the Lender or City to the
Borrower, as between the Borrower and such of the Lender or the City as provided the
notice to the Borrower.
(c)Within ten (10) days after request by the Lender, the City shall
furnish the Lender with a statement, duly acknowledged and certified confirming that
there exists no default under the Property Documents (or describing any default that does
exist), and certifying to such other information with respect to the Property Documents as
the Lender may request.
(d)Within ten (10) days after request by the City, the Lender shall
furnish the City with a statement, duly acknowledged and certified confirming that there
exists no default under the Loan Documents (or describing any default that does exist),
and certifying to such other information with respect to theLoan Documents as the City
may request.
(e)Except to the extent any of the following may be limited or
restricted as Transfers orTransfers of Control (as defined in the DDA) set forth in
Section 2 of the DDA, theLender may amend, waive, postpone, extend, renew, replace,
reduce or otherwise modify any provisions of the Loan Documents without the necessity
of obtaining the consent of or providingnotice to the City, and without affecting any of
the provisions of this Agreement. Notwithstanding the foregoing, Lender may not
modify any provision of any of the Loan Documents that increases the Indebtedness,
increases the interest rate due under the Note, increases any of the economic covenants in
the Loan Documents (such as debt service coverage ratio and loan to value ratio),
materially increases theobligations or liabilities of Borrower under the Loan, except for
increases in the Indebtedness thatresult from advances made by the Lender to protect the
ATTACHMENT 23City of Tustin/Regency Centers DDA
Tustin Regency ATTACHMENT 23Subordination
Agreement 8-25-15(Aef) FINAL.Docx
-6-September 29, 2015
security or lien priority of the Lender under the Loan Documents or to cure defaults
under the Property Documents.
5.DEFAULT UNDER LOAN DOCUMENTS.
(a)Lender shall have the right to cure any Property DocumentDefault
in the manner and to the extent provided for in Section 17of the DDA and the City’s
ability to commence any Enforcement Action shall be limited as and to the extent
provided for in Section 16, 17.6 and 17.7of the DDA.The Lender shall not have any
obligation whatsoever to cure any Property DocumentDefault. The Lender shall not be
subrogated to the rights of the City under the Property Documents by reason of the Senior
Lender having cured any Property DocumentDefault. However, the City acknowledges
that all amounts advanced or expended by the Lender in accordance with the Senior Loan
Documentsor to cure a Property DocumentDefault shall be added to and become a part
of the Indebtedness under Section 12 of the Security Instrument and shall be secured by
the lien of, the Security Instrument.
(b)The Lender shall deliver to the City a copy of any notice sent by
the Lenderto the Borrower of a LoanDefault within five (5) business days of sending
such notice to the Borrower. Failure of the Lenderto send notice to the City shall not
prevent the exercise of the Lender's rights and remedies under the LoanDocuments. The
City shall have the right, but not the obligation, to cure any monetary Loan Default
within thirty (30) days following the date ofsuch notice; provided, however, that the
Lender shall be entitled during such 30-day period to continue to pursue its remedies
under the Loan Documents.The City may have up to ninety (90) days from the date of
the notice to cure a non-monetary Loan Default. In the event that such a non-monetary
Loan Default creates an unacceptable level of risk relative to the Mortgaged Property, or
the Lender's secured position relative to the Mortgaged Property, as determined by the
Lender in its sole discretion, thenthe Lender may exercise during such 90-day period all
available rights and remedies to protect and preserve the Mortgaged Property and the
Rents, revenues and other proceeds from the Mortgaged Property. TheCity shall not be
subrogated to the rights of the Lender under the Loan Documents by reason of the City
having cured any Loan Default. However, the Lender acknowledges that all amounts
paid by the City to the Lender to cure a Loan Default shall be deemed to have been
advanced by the City pursuant to, and shall be secured by the lien of, the Property
Document.
(c)Lender shall not be obligated to perform any of the Borrower’s
obligations under the DDA to construct or complete any Improvements or to guarantee
such construction or completion thereof. Notwithstanding the foregoing, if any Person
acquires title to any part of the Mortgaged Propertyor the Improvementsas a result of a
ForeclosureEventor from Lender after a ForeclosureEvent, then such person or entity
shall be subject to all of the PropertyDocuments.Ifthe Lender elects to construct any
Improvements on the Mortgaged Property, the Lender must first acquire title to the
Mortgaged Property and assume all of the obligations of Borrower under all of the
Property Documents, and terminate this Agreement, and the Improvements may only be
those Improvements that Borrower would be permitted to construct under the DDA. In
ATTACHMENT 23City of Tustin/Regency Centers DDA
Tustin Regency ATTACHMENT 23Subordination
Agreement 8-25-15(Aef) FINAL.Docx
-7-September 29, 2015
all events, Lender shall only be liable to the City under the DDA after the date of a
Foreclosure Event to the extent of Lender’sinterest (whether fee or leasehold) in the
portion of Mortgaged Property and the Improvements thereon owned by Lender;
provided that such limitation shall not apply to any Personwho acquires title to any part
of the Mortgaged Property or the Improvementsas a result of a Foreclosure Event or
from Lender after a ForeclosureEvent.
(d)The City acknowledges that the provisions of this Section 5 are
fair and reasonable under the circumstances, that the City has received a substantial
benefit from the Lender having provided the Loan, and that the Lender would not have
provided the Loan without the inclusion of these provisions in this Agreement.
(e)The Lender may pursue all rights and remedies available to it
under the Loan Documents, at law, or in equity, regardless of any Enforcement Action
Notice or Enforcement Action by the City. No action or failure to act on the part of the
Lender in the event of a Property DocumentDefault or commencement of an
Enforcement Action shall constitute a waiver on the part of the Lender of any provision
of the Loan Documents or this Agreement.
(f)Notwithstanding anything to the contrary in theLoan Documents,
this Agreement or in the DDA, if the City consummates an Enforcement Actionand the
Security Instrument is not released as a result of the Enforcement Action, then Lender
shall not exercise any of its rights or remedies under the Loan Documents that would
result in any Foreclosure Event prior to the date that is ninety (90) days after the date the
City acquires fee title to the any portion of the Mortgaged Property pursuant to the
Enforcement Action.
(g)\[IF APPLICABLE: Notwithstanding any other provision of this
Agreement, any actions taken by Lenderunder any provision of the Loan Documents
which provide for an assignment to Lender of the interests in Borrower now held by
\[Managing General Partner’s or Co-General Partner\] which result in Lender acquiring
the interests in Borrower now held by \[Managing General Partner and Co-General
Partner\] shall not constitute a Foreclosure Event. In the event that Lender acquires such
interests in Borrower, such acquisition shall be deemed a Permitted Transfer of Control
of Developer under the DDA, but shall not alter in any manner the rights or obligations
of Developer under the Property Documents, and Developer shall remain fully obligated
as “Developer” under the Property Documents (and shall not enjoy the protections of a
Permitted Mortgagee under the Property Documents) notwithstanding the acquisition of
an interest or controlling interest by Lender in Developer.\]
6.MISCELLANEOUS PROVISIONS
(a)In the event of any conflict or inconsistency between the terms of
the Property Documents and the terms of this Agreement, the terms of this Agreement
shall control.
(b)This Agreement shall be binding upon and shall inure to the
benefit of the respective legal successors and permitted assigns of the parties hereto. No
ATTACHMENT 23City of Tustin/Regency Centers DDA
Tustin Regency ATTACHMENT 23Subordination
Agreement 8-25-15(Aef) FINAL.Docx
-8-September 29, 2015
other party shall be entitled to any benefits hereunder, whether as a third-party
beneficiary or otherwise.
(c)This Agreement does not constitute an approval by the Lender of
the terms of the Property Documents.
(d)Each notice, request, demand, consent, approval or other
noticesnotice
communication (collectively, “,” and singly, a “”) which is required or
permitted to be given pursuant to this Agreement shall be in writing and shall be deemed
to have been duly and sufficiently given if (i) personally delivered with proof of delivery
thereof (any notice so delivered shall be deemed to have been received at the time so
delivered), or(ii) sent by a national overnight courier service (such as FedEx) designating
earliest available delivery (any notice so delivered shall be deemed to have been received
on the next business day following receipt by the courier), or (c) sent by United States
registered or certified mail, return receipt requested, postage prepaid, at a post office
regularly maintained by the United States Postal Service (any notice so sent shall be
deemed to have been received on the date of delivery as confirmed by the return receipt),
addressed to the respective parties as follows:
(i)Notices intended for the Lendershall be addressed to:
If to Lender:
With a copy to:
:
(ii)Notices intended for the City shall be addressed to:
If to the City:Tustin City Hall
300Centennial Way
Tustin, CA 92780
Attention: City Manager
Facsimile: (714) 838-1602
With a copy to:City of Tustin City Attorney
Woodruff Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, California 92626
Attn: David E. Kendig
Facsimile: (714) 835-7787
Email: dkendig@wss-law.com
ATTACHMENT 23City of Tustin/Regency Centers DDA
Tustin Regency ATTACHMENT 23Subordination
Agreement 8-25-15(Aef) FINAL.Docx
-9-September 29, 2015
Any party, by notice given pursuant to this Section, may change the person or persons
and/or address or addresses, or designate an additional person or persons or an additional
address or addresses, for its notices, but notice of a change of address shall only be
effective upon receipt. Neither party shall refuse or reject delivery of any notice given in
accordance with this Section.
(e)Nothing herein or in any of the Loan Documents or Property
Documents shall be deemed to constitute the Lender as a joint venturer or partner of the
City.
(f)Upon notice from the Lender from time to time, the City shall
execute and deliver such additional instruments and documents, and shall take such
actions, as are requiredby the Lender in order to further evidence or effectuate the
provisions and intent of this Agreement.
(g)This Agreement shall be governed by the laws of the State of
California, irrespective of California’s choice-of-law principles.
(h)The Parties agree to submit to personal jurisdiction in the State of
California in any action or proceeding arising out of this Agreement. The Parties hereby
agree and consent that without limiting other methods of obtaining jurisdiction, personal
jurisdiction over the Parties inany such action or proceeding may be obtained within or
without the jurisdiction of any court located in California and that any process or notice
of motion or other application to any such court in connection with any such action or
proceeding may be served upon the parties by registered or certified mail to or by
personal service at the last known address of the Parties, whether such address be within
or without the jurisdiction of any such court. Any legal suit, action or other proceeding
by one Party to this Agreement against the other arising out of or relating to this
Agreement shall be instituted only in the courts of the State of California, County of
Orange or the United States District Court for the Central District of California, and each
Party hereby waives any objections which it may now or hereafter have based on venue
and/or forum non-conveniens of any such suit, action or proceeding and submits to the
jurisdiction of such courts.
(i)To the extent permitted by law, Lender and the City each waive
their respective rights to a trial by jury of any claim or cause of action based on, arising
from, or related to or arising out of this Agreement, in any action, proceeding, or other
litigation of any type brought by either party against the other, whether with respect to
any cause of action in law or equity.Lender and the City agree that any such claim or
cause of action shall be tried by a court trial without a jury. Without limiting the
foregoing, the parties further agree that their respective rightto a trial by jury is waived
by operation of this section as to any action, claim, counter-claim, or other proceeding
that seeks, in whole or in part, to challenge the validity or enforceability of this
Agreement.This waiver shall apply to any future amendments, renewals, supplements,
or modifications to this Agreement.
ATTACHMENT 23City of Tustin/Regency Centers DDA
Tustin Regency ATTACHMENT 23Subordination
Agreement 8-25-15(Aef) FINAL.Docx
-10-September 29, 2015
(j)If any one or more of the provisions contained in this Agreement,
or any application thereof, shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained herein, and any
other application thereof, shall not in any way be affected or impaired thereby.
(k)The term of this Agreement shall commence on the date hereof and
shall continue until the earlierto occur of the following events: (i) the payment of all of
the Indebtedness; provided that this Agreement shall be reinstated in the event any
payment on account of the Indebtedness is avoided, set aside, rescinded or repaid by the
Lender as described inSection 2(e) hereof; or (ii)issuance by the City of a Certificate of
Compliance in accordance with Section9of the DDA.
(l)No failure or delay on the part of any party hereto in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
(m)Each party hereto acknowledges that in the event any party fails to
comply with its obligations hereunder, the other parties shall have all rights available at
law and in equity, including the right to obtain specific performance of the obligations of
such defaulting party and injunctive relief.
(n)Nothing in this Agreement is intended, nor shall it be construed, to
in any way limit the exercise by the City of its governmental powers (including but not
limited to police, regulatory and taxing powers) with respect to the Borrower or the
Mortgaged Property to the same extent as if it were not a party to this Agreement or the
transactions contemplated hereby.
(o)This Agreement may be amended, changed, modified, altered or
terminated only by a written instrument or written instruments signed by the parties of
this Agreement.
(p)This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall constitute one
and the same instrument.
\[Signature and Acknowledgement Pages to Follow\]
ATTACHMENT 23City of Tustin/Regency Centers DDA
Tustin Regency ATTACHMENT 23Subordination
Agreement 8-25-15(Aef) FINAL.Docx
-11-September 29, 2015
IN WITNESS WHEREOF
, the parties have duly executed this Agreement as of the day
and year first above written.
LENDER:
By:
Name:
Title:
CITY:
CITY OF TUSTIN
Dated: ________________________By:_____________________________
Jeffrey C. Parker
City Manager
ATTEST:
By:
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:
David Kendig,CityAttorney
Armbruster Goldsmith & Delvac LLP
Special TustinCounsel
By:
Amy E. Freilich
Tustin Regency ATTACHMENT 23Subordination ATTACHMENT 23City of Tustin/Regency Centers DDA
Agreement 8-25-15(Aef) FINAL.Docx
-12-September 29, 2015
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of ______________________)
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
Tustin Regency ATTACHMENT 23Subordination ATTACHMENT 23City of Tustin/Regency Centers DDA
Agreement 8-25-15(Aef) FINAL.Docx
-13-September 29, 2015
CONSENT OF BORROWER
The Borrower hereby acknowledges receipt of a copy of this Subordination Agreement,
\[ADD _________________\]
dated ________________, by and between and The City of Tustin
and consents to the agreement of the parties set forth herein.
1C TUSTIN LEGACY LLC
,
a Delaware limited liability company
By:
Name:
Title:
Date:
Tustin Regency ATTACHMENT 23Subordination ATTACHMENT 23City of Tustin/Regency Centers DDA
Agreement 8-25-15(Aef) FINAL.Docx
-14-September 29, 2015
EXHIBIT A
LEGAL DESCRIPTION
ATTACHMENT 23City of Tustin/Regency Centers DDA
Tustin Regency ATTACHMENT 23Subordination
Agreement 8-25-15(Aef) FINAL.Docx
-15-September 29, 2015
ATTACHMENT 24
LAND REPURCHASE AMOUNT
Material Default Scenario Land Repurchase Amount
Developer
Material Default by following Retail
$2,750,000
Property Close of Escrow and prior to Healthcare
(Retail Property Land Repurchase
Property Close of Escrow
Amount)
Developer
Material Default by (a) following both
$2,750,000
Retail Property Close of Escrow and Healthcare
(Retail Property Land Repurchase
Property Close of Escrow; and (b) prior to
Amount)
sale/assignment to Healthcare Developer
$11,025,491
(Healthcare Property Land Repurchase
Amount)
Developer
Material Default by following (a)
$2,750,000
Retail Property Close of Escrow; and (b)
(Retail Property Land Repurchase
and
Healthcare Property Close of Escrow; (c)
Amount only)
sale/assignment to Healthcare Developer of
No payment with respect to Healthcare
Healthcare Property Close of Escrow (and with no
Property
Default by Healthcare Developer)
Healthcare Developer
Material Default by
$11,025,491
following (a) Retail Property Close of Escrow; and
(Healthcare Property Land Repurchase
and
(b) Healthcare Property Close of Escrow;
Amount)
(c) sale/assignment to Healthcare Developer of
Healthcare Property Close of Escrow
ATTACHMENT 24
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
-1-
September 29, 2015
ATTACHMENT25
SLOPEPARCELEASEMENTANDLANDSCAPE
INSTALLMENTANDMAINTENANCEAGREEMENT
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT
FROM RECORDING FEES PER
GOVERNMENT CODE 6103 AND 27383.
Recording requested by and
When recorded mail to:
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn:City Manager
Space above This Line Reserved for Recorder's Use
SLOPE PARCEL EASEMENT AND LANDSCAPE INSTALLATION AND
MAINTENANCE AGREEMENT
This Slope Parcel Easement and Landscape Installation and Maintenance Agreement
AgreementEffective Date
("") is entered into this ____________, 20__ ("") by and between the
CityDeveloper
City of Tustin, a municipal corporation ("") and 1C Tustin Legacy LLC("").
RECITALS
A.City and Developer have entered into that certain Tustin Legacy Disposition and
DDA
Development Agreement for Disposition Parcel1C dated as of____, 2015 ("")
pursuant to which Developer has acquired from City that certain real property described
Retail Parcel
and depicted on Exhibit"A-1"("") and intends to acquire from the City that
Healthcare Parcel
certain real property described and depicted on Exhibit"A-2"("").
The Retail Parcel and the Healthcare Parcel are referred to herein individually as a
Development ParcelDevelopment Parcels
"" and collectively as the "".
B.City is the owner of certain real property adjacent to the Development Parcels described
Slope Parcel
onExhibit"B"("")and certain additional real property located between the
property line of the DevelopmentParcels and the adjacent public sidewalk as depicted on
Perimeter LandscapeArea
Exhibit"C"(the "").
C.City has approved certain entitlements with respect to the Development Parcels pursuant
to Resolution No. __________ adopted by the Tustin City Council on_______________,
Entitlements
2015(""). Conditions to the approval of the Entitlements imposed by the
City include the following: (1) condition2.13 requiring Developer to enter into a
landscape maintenance agreement with the City of Tustin for maintenance of parkway
improvements within public rights-of-way adjacent to the project along Valencia Avenue,
Kensington Park Drive, Edinger Avenue, Tustin Ranch Road and the Tustin Ranch Road
slope and (2) conditions4.1, 4.2, 4,3, 4.4, 9.3, 9.5, 9.7 and 9.10,requiring that Developer
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
-1-
FINAL.docx
install and maintain, among other things, certain landscape, and irrigation improvements
within the Slope Parceland the Perimeter LandscapeArea and imposing certain
Conditions\[Numbering
additional conditions with respect thereto (collectively, "")
reflects Planning Commission Conditionsto be revised prior to execution to reflect
City Council conditions\]
.
D.Developer has agreed to install and maintain landscaping on the Slope Parcel and the
Perimeter LandscapeAreaand has agreed to execute this Agreement in order to provide
for maintenance of the Landscape Areas(as defined below)by Developer and its
Successor Owners (as defined below). This Agreement shall be a covenant running with
the land and burdening the Development Parcels and each Successor Owner thereof, for
the benefit of the Slope Parceland the Perimeter LandscapeAreaand the Cityand each
successor owner thereof.
NOW, THEREFORE, in consideration of the benefits conferred, the mutual covenants and
conditions contained herein, and the duties and obligations incurred, the parties hereto agree as
follows:
AGREEMENT
Definitions
1. For purposes of this Agreement, the following capitalized terms shall have
the following meanings:
City Easement Users
“” shall have the meaning set forth in Section 12.1.
City Indemnified Parties
""shall mean City and its appointed and elected officials,
agents, attorneys, affiliates, employees, contractors, consultants and representatives.
Default Interest Rate
""shall mean an interest rate of eight percent (8%) per annum,
compounded annually, but in no event in excess of the maximum legal rate.
Easement Users
""shall mean each Owner and their respective employees, consultants,
contractors, subcontractors, representatives and agents.
Easements
“” means the Slope Parcel Easement, the Perimeter LandscapeAreaEasement
and the City Easement, collectively.
Entry Landscape Area
""shall mean that certain area located on the Development
Parcels as depicted on Exhibit"C".
Healthcare Parcel Landscape Area
""shall meanthat certain portion of the Healthcare
Parcel:(a)immediately adjacent to and contiguous with the Perimeter LandscapeArea and
(b)adjacent to the front entry on Kensington Park Drive, as generally depicted on Exhibit"C",
which shall be subject to this Agreement only during the time period that the City holds fee title
to the Healthcare Parcel.
Landscape Areas
""shall mean the Slope Parcel, the Perimeter LandscapeArea, the
Healthcare Parcel Landscape Area,and the Entry Landscape Area, collectively.
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
-2-
FINAL.docx
Landscape Improvements
""shall mean any and all landscapingandirrigation to be
constructed and/or installed in connection with the Project upon the Landscape Areasas required
by this Agreement, the Conditions, any applicable laws and federal state, or local governmental
agency having jurisdiction to abate or prevent pollution.
Owner
“” shall mean the Developer and each Successor Owner of all or any portion of
the Development Parcels, during such person or entity’s ownership thereof.
OwnerRepresentatives
""shall mean the officers, directors, employees, agents,
representatives, consultants, contractors, and other persons accessing the Landscape Areas
through or with the permission or under the direction or auspices of Developerand Successor
Ownersduring the time period that each holds fee title to the Development Parcels or any portion
thereof.
Slope Parcel
""shall have the meaning set forth in Recital B.
Slope Parcel Easement
""shall have the meaning set forth in Section2.1.
Successor Healthcare Owners
""shall mean the successors and assigns of Developer
owning all or any portion of the Healthcare Parcel.
Successor Owners
""shall mean the Successor Retail Owners and the Successor
Healthcare Owners collectively.
Successor Retail Owners
""shall mean the successors and assigns of Developer owning
all or any portion of the Retail Parcel.
Access and Easements
2.
Slope Parcel and Perimeter Landscape Area Easements\[if
2.1. The City hereby grants
concurrent Retail and Healthcare Parcel closings:
for the benefit of Developer and
\[if not concurrent closings:
Successor Ownersand their Easement Users\](a)for the
benefit of Developer and Successor Retail Ownersand their Easement Users and (b)upon
acquisition of the Healthcare Parcel by Developer, for the benefit of Developer and the
Successor Healthcare Owners and their Easements Users(and as further described in
Section 2.7)\], and binding upon each successor in interest of City owning all or any portion
of theburdened parcelthe following easementsappurtenant to the Development Parcels:
Slope Parcel Easement
2.1.1a perpetual, non-exclusive easement(the "") in, on, over, across, through
and under the Slope Parcel for the purpose of installing and maintaining Landscape
Improvements thereon, and repairing and replacing any Landscape Improvements thereon and
for use, installation, maintenance, repair and replacement of utilities (including without
limitation, electrical, water, storm drains and/or drainage) required to maintain the Slope Parcel
and landscapingand improvementsthereon, in each case as may be required or reasonably
necessary for the installation, construction, use, maintenance, repair and replacement of the
Landscape Improvements.
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
-3-
FINAL.docx
Perimeter LandscapeAreaEasement
2.1.2a perpetual, non-exclusive easement (the "") in, on, over,
across, through and under the Perimeter LandscapeArea for the purpose of installing and
maintaining Landscape Improvements thereon, and repairing and replacing any Landscape
Improvements thereon and for use, installation, maintenance, repair and replacement of utilities
(including without limitation, electrical, water, storm drains and/or drainage) required to
maintain the Perimeter LandscapeArea and landscaping and improvements thereon, in each case
as may be required or reasonably necessary for the installation, construction, use, maintenance,
repair and replacement of the Landscape Improvements.
No Interference with Slope Parcel
2.2. Unless otherwise permitted by this Agreement, each
Owner shall cause all work performed on the Slope Parcel to be performed in a manner so
as not to:(a)cause any material increase in the cost of any construction or maintenance by
the City with respect to the Slope Parcel; (b)unreasonably interfere with and to provide
continual access to, use, occupancy or enjoyment of the Slope Parcel by the City or (c)lead
to or cause erosion of the land comprising the Slope Parcel.
Damage
2.3.Any damage occurring to the Slope Parcelor the Perimeter Landscape Areaas a
result of construction work on another Development Parcel shall be the responsibility of
the Owner performing such construction and shall be repaired promptly by such Owner, at
such Owner’ssole cost and expense, to substantially the same condition as existed
immediately prior to such work.NoOwnershall be responsible for therepairof any
damage to the Landscape Areas including the City Improvements (as defined in
Section12.1) to the extentsuch damage iscaused by theCity or any of the City Easement
Users (defined below) exercising the rights granted to the City pursuant to Section12or
otherwise entering the Landscape Areasand neither Developer nor any Successor Owners
shall have any obligation or responsibility in connection with such damage or the failure to
repair or replace the same.
Maintenance
2.4.In addition to the maintenance standards and requirements set forth in
Section3 and Section4, the following maintenance standards and requirements shall apply
with respect to the Slope Parcel. Each Owner shall: (a)maintain the Slope Parcel in a
manner and to a standard that does not cause or create erosion of the Slope Parcel; (b)to
the extent required by applicable municipal ordinanceand/or any Conditionto the extent
applicable,install irrigation infrastructure as needed to utilize reclaimed water and water
the Slope Parcel utilizing reclaimed water; (c)priorto installation or replacement thereof,
obtain the approval of the City's Public Works Department (unless released from such
obligation by the City Manager in writing) to all plant and landscaping materials proposed
to be used on the Slope Parcel (including during initial installation and for all
replacements); (d)promptly remove and replace all dead plant material with an approved
replacement and (e)cause pruning and trimming of vegetation to be carried out on a
regularly scheduled basis by a licensed landscape contractor.The Owners shall cause all
landscaping within each separate Landscape Areas to be maintained in a consistent manner
so that all landscaping within each Landscape Area is consistent in appearance, regardless
of which Development Parcel, or portion thereof, such Landscape Area is located uponand
in the event of a default by any Owner with respect to this obligation, each Owner shall
pay to the City the costs incurred by the City to conform the Landscaping Areas to a
uniform appearance.
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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FINAL.docx
License for Access to Healthcare Parcel Landscape Area
2.5. City hereby grants to
Developer and the Successor Retail Owners a revocable license for installation,
maintenance, repair and replacement of landscape within the Healthcare Parcel Landscape
Area, to access and maintain the Healthcare Parcel Landscape Area in accordance with the
requirements of this Agreement.
Termination of Healthcare Parcel Landscape Area
2.6.From and after a conveyance of the
Healthcare Parcel to Developeror any Successor Healthcare Owner,the License granted
pursuant to Section 2.5 for the Healthcare Parcel Landscape Area and Developer’s
obligation to maintain the Healthcare Parcel Landscape Area for the benefit of the City
shall terminate and be of no further force or effectand the Successor Healthcare Owner
shall be responsible for the maintenance of the Healthcare Parcel Landscape Area.
\[ONLY IF NON-CONCURRENT CONVEYANCE OF RETAIL AND HEALTHCARE
2.7
PARCELS: Creation of Easements in Healthcare Parcel
. At the time of execution and
recording of this Agreement, the Healthcare Parcel is owned by the City but is subject to
purchase and sale agreement (pursuant to the DDA) in favor of Developer. Developer and
the Cityintend that the easements, rights, restrictions, obligations, servitudes, conditions
and covenants created in this Agreement for the benefit of and burdening the Healthcare
Parcel, including without limitation the Slope Parcel Easement and the Landscape Area
Easement and the burdens imposed by the City Easement and the maintenance obligations
andall other rights and obligations imposed on the Healthcare Parcel and the Healthcare
Healthcare Restrictions
Successor Owners hereunder(collectively, the “”) be presently
created as of the Effective Date, but agree that the obligations imposed upon Healthcare
Successor Owners under this Agreement shall not apply to the City during its period of
ownership of the Healthcare Parcel. For avoidance of doubt, the City and Developer
hereby also provide that to the extent not previously created, upon acquisition of the
Healthcare Parcelby Developer, the Healthcare Restrictions shall automatically spring
into being and shall be binding upon the Healthcare Parcel and each Owner thereof in
accordance with the terms of this Agreement. To assure the enforceability of the
Healthcare Restrictions, the parties hereby agree that immediately following the recording
of the Healthcare Property Quitclaim Deed, they shall record against the Development
Parcels, the Slope Parcel and the Perimeter Landscape Area such documents as are
reasonably necessary in the opinion of any party to effectuate the Healthcare Restrictions,
to grant the Easements and to provide notice of such actions.\]
Installation, Construction and Maintenance Obligation
3.
Installation
3.1.Developer, or its Successor Owner(s),shall install and construct the
Landscape Improvements upon the Landscape Areas in accordance with the requirements
established by the Conditions, the DDA and the CC&Rs. Upon completion by Developer
of the installation and construction of Landscape Improvements for all or any portion of
the Landscape Areas, Developer and each Successor Owner shall maintain, repair, replace
and restore, at its sole cost and expense, the Landscape Improvements and the Landscape
Areas, including, without limitation anyhardscape and paving materials upon the Entry
Landscape Area in the same aesthetic and sound condition or better as the condition of
such improvements at the time of their acceptance by the City, excepting only reasonable
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
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wear and tear and any necessary replacement of Landscape Improvements pursuant to this
Agreement. Any necessary replacements of Landscape Improvements shall be consistent
with the Conditions and the quality of improvements originally approved by City and
nothing herein shall limit theCity's right toreview and approve such Landscape
Improvements to ensure compliance with the terms hereofand the Conditions.Landscape
Areas shall be maintained in accordance with the terms and conditions set forth in this
Section4and Section5and the Slope Parcel shall in addition be maintained in accordance
withthe requirements of Section2. All utilities required to maintain the Landscape
Improvements including, without limitation, water and electrical, shall be paid for by, or
caused to be paid by,the Ownersand such utilities may at the discretion of the Owners, be
on separate meters.
Separate Agreement
3.2.Nothing in this Agreement shall prohibit two or more Owners of
the Development Parcels from entering into a separate agreement to allocate the
responsibilities and obligations under this Agreement or to share the costs for performing
the maintenance of Landscape Improvements on the Landscape Areas.
Standard of Maintenance.
4
Standards
4.1.The standard for the quality of maintenance of the Landscape Areas and
Landscape Improvements set forth in Section4shall be met whether or not a specific item
of maintenance is listed below. However, representative items of maintenance shall
include:(a)proper maintenance of all Landscape Areas and Landscape Improvements
such that they are evenly cutandevenly edged, where appropriate, reasonably free of bare
and brown spots, debris, trash, litter, droppings and weeds; (b)maintenance, repair and
replacement on a regular schedule, of landscaping, irrigation systems and utilities;
(c)fertilizing, irrigating and replacing vegetation, as necessary; (d)use and replacement of
vegetation of a type and amount as may reasonably be required to maintain the Landscape
Areas in accordance with the Conditions and the Tustin Legacy Specific Plan; (e)adequate
maintenance of all Landscape Areas and Landscape Improvements such as not to be
detrimental to public health, safety, or general welfare; and (f)regular and even trimming
and pruning of all trees and shrubs so they do not impede vehicular or pedestrian traffic, do
not intrude into neighboring properties, do not create nuisances to neighboring properties,
including but not limited also to root pruning to eliminate exposed surface roots and
damage to curbs and gutters, sidewalks, driveways, utilities and other structures or
improvements.
Joint and Several Liability
4.2.Notwithstanding anything herein to the contrary, if any
portion of the Slope Parcelrequired to be maintained by Developer or its Successor
Owners, is not maintained in accordance with the terms of this Agreement, the Owners
shall be jointly and severally liable for such breach, and the City shall have the right to
enforce the terms of this Agreement against either or all of Developer, Successor Retail
Ownersand Successor Healthcare Ownersin order to cause the Slope Parcelto be
maintained in accordance with the terms hereof, including, without limitation, Sections
2.3, 2.4, 4.1, 5 and 6.
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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FINAL.docx
Allocation of Maintenance Responsibilities
5.Notwithstanding the fact that there may be
multiple ownerships of the DevelopmentParcels, the maintenance responsibilities set forth in
this Agreement shall be vested in one entity for each of the respectiveDevelopment Parcels at
any given time during the Term.
Term
6. The term of this Agreement shall be perpetual, unless termination is consented to
Term
by the City, in its sole discretion(the "").Notwithstanding the foregoing, the City shall
have the right at any time to terminate the Slope Parcel Easement and/orthe Perimeter
Landscape Easement as to all or any portion of the Development Parcels upon provision of
written notice to the Owner of such Development Parcel and effective upon the date of such
termination, the Owner(s) of such Development Parcel(s) shall be released from the
responsibility to maintain the Landscape Improvements upon the Slope Parcel and/or Perimeter
Landscape Area, as applicable. Upon such termination, the Landscape Improvements, utilities
and other improvements installed upon the Slope Parcel and the Perimeter Landscape Area, as
applicable, shall become the property of the City at no cost or expense to the City. The
termination of all or any portion of the Slope Parcel Easement and/or the Perimeter Landscape
Easement shall not affect or terminate the City Easement, which shall remain in effect in
perpetuity unless termination is consented to by the City.
Insurance
7. From and after the Effective Date, each Owner , at its cost, shall maintain
public liability and property damage insurance with a single combined liability of not less than
$1,000,000 and property damage limits of not less than $500,000 insuring against all liability of
Owner and its Owner Representativesarising out of or in connection with the presence, activities
or work on or use of the Landscape Improvements and/or Landscape Areas or any act or
omission to act of any Owner and/or its Owner Representativeswith respect to the Landscape
Areas and/or Landscape Improvements. In addition, each Owner shall provide workers'
compensation insurance meeting statutory limits for all persons employed by Developer in
connection with obligations under this Agreement. The foregoing may be satisfied during the
term of the DDA by insurance required thereby but shall not subtract from any insurance
obligations of Developeror any Successor Ownerto City under the DDA. Each Owner will
furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the
insurance required under this Agreement and such other evidence of insurance or copies of
policies as may be reasonably required by City from time to time. Insurance must be placed with
insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A-/VII"(if
an admitted carrier) or A-/X (if offered by a surplus line broker). An Accord certificate
evidencing the foregoing and providing the following endorsements signed by the authorized
representative of the underwriter and approved by City shall be delivered within seven (7)
Business Days following the Effective Date of this Agreement and annually evidencing renewals
of each policy. The endorsements shall provide as follows:(1)designate the City, its elected
and appointed officials, agents, representatives and employees as additional insureds on the
commercial general liability policies; (2)the commercial general liability insurance coverage
shall be primary, and not contribute with any insurance or self-insurance maintained by City and
(3)a waiver of subrogation for the benefit of the City. Such insurance will be on an
"occurrence,"not a "claims made"and will be prepaid on an annual basis. The procuring of such
insurance and the delivery of policies, certificates or endorsements evidencing the same shall not
be construed as a limitation of an Owner's obligation to indemnify City as set forth herein.
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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FINAL.docx
Indemnity
8. Developer on behalf of itself and each Successor Owner, hereby agrees that
each Owner shallprotect, indemnify, defend and hold harmless the City Indemnified Parties
from and against any and all claims, actions, damages, costs (including, without limitation,
attorneys'fees), injuries, or liability, arising out of or in connection with:(a)the presence,
activities or work on the Landscape Improvements and/or Landscape Areas by each Owner
and/or its Owner Representatives, (b)any act or omission to act of any Owner and/or its Owner
Representativeswith respect to the Landscape Areas and/or Landscape Improvements, (c)entry
onto the Landscape Areas by any Owner or its Owner Representativesin connection with this
Agreement,(d)bodily injury to or death of any person (including any employee or contractor of
the City Indemnified Parties) or damage to or loss of use of property resulting from such acts or
omissions of an Owner or any Owner Representative with respect to the Landscape Areas and/or
Landscape Improvementsand (e) costs to remove or bond mechanic’s liens, stop notices and/or
bonded stop notices that are recorded and/or served by contractors, subcontractors (of all tiers)
and suppliers with respect to work performed or caused to be performed by such Owneraffecting
the Landscape Areas; provided that the indemnityunder clauses (a) through (d)shall not apply to
the extent of the gross negligence, willful misconduct or fraud of the City or any City
Indemnified Party. The provisions of this Section shall survive the termination of this
Agreementonly with respect to events occurring while this Agreement is in effect.
Mechanic's Liens
9.Each Owner shall keep the Landscape Areas on the portion of the
Development Parcels ownedby it free and clear of any mechanics'liens or materialmen's liens.
Compliance with Laws
10.Each Ownershall comply with all Conditions and all lawsand
regulations affecting the Landscape Areas and the Landscape Improvements, including without
limitation, those issued by the Environmental Protection Agency, or any federal, state, interstate,
or local governmental agency having jurisdiction to abate or prevent pollution. The disposal of
any toxic or hazardous materials within the Landscape Areas is specifically prohibited. Such
regulations, conditions, or instructions in effect or prescribed by said Environmental Protection
Agency, or any federal, state, interstate, or local governmental agency shall be complied with by
each Owner. Each Owner shall not discharge waste or effluent from the Landscape Areas in
such a manner that the discharge will contaminate streams or other bodies of water or otherwise
become a public nuisance. The foregoing shall not subtract from any environmental
responsibilities of Developer to City under the DDA.
City Remedies
11. In the event of a breach of any provision of this Agreement, City may
Default Notice
demand by written notice ("") that the violation be cured. Except for utility
service interruptions or similar emergencies which shall not require advance notice or cure
periods hereunder, if an Owner does not cure the violation within thirty (30)days after receipt of
the Default Notice, or if such default is of a kind which cannot reasonably be cured within thirty
(30)days,and such Owner does not within such thirty (30)day period commence to cure such
default and diligently thereafter prosecute such cure to completion, then City shall have the right,
but not the obligation, to (a)institute legal action against such Ownerfor specific performance,
injunction, declaratory relief, damages, or any other remedy provided by law, (b)pay any sum
owed by such Ownerto the party entitled to such payment and/or (c)enter upon the Landscape
Areas (and upon the Development Parcels, tothe extent reasonably necessary to enforce its
rights hereunder) and to summarily abate, remove or otherwise remedy any improvement, and/or
repair or modify any improvement which violates the terms of this Agreement and/or perform
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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FINAL.docx
any obligation of such Ownerunder this Agreement to be performed thereon. An Ownershall
pay to the City, within thirty (30)calendar days of written demand by City (which demand is
accompanied by appropriate supporting documentation), an amount equal to all costs and
expenses incurred by City in undertaking any of the actions permitted by the preceding sentence,
including without limitation, third party costs and City hourly wages and benefits reasonably
allocable to the time expended by City in taking such actions, together with interest thereon at
the rate equal to the Default Interest Rate, from the date such costs and expenses were advanced
or incurred by the City. The rights and remedies given to City by this Agreement shall be
deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the
others, or of any other right or remedy at law or in equity which City might otherwise have by
virtue of a default under this Agreement, and the exercise of one such right or remedy by any
City shall not impair the City's standing to exercise any other right or remedy.Until such Owner
has paid in full all of the costs incurred by the City, the unpaid cost thereof shall constitute a lien
on the respective Development Parcel.
Access Easement in Favor of City
12.
Access Easemen
12.1t.Developer hereby grants for the benefit of the City and its successors
and assigns owning all or any portion of the Slope Parceland Perimeter Landscape Areas
Successor Slope Owners
("") and their respectiveemployees, consultants, contractors,
subcontractors, representatives and agents(collectively with the City and Successor Slope
City Easement Users
Owners, the “”), and binding upon each Owner of the Development
Parcels or any portion thereof, a perpetual, non-exclusive pedestrianand vehicular access
easement, utility easement(for the limited purpose of providing storm drainage and
utilities including electric, water and recycled water required to serve the Slope Parcel and
UtilitiesCity
Perimeter Landscape Areas (“”)and parking easement (collectively, the "
Easement
")each appurtenant to the Slope Parcel and Perimeter Landscape Area, in, on,
over, across, under(as to the utilities only)and through the roadways, parking areas and
CityEasement Area
sidewalks located on the Development Parcels fromtime to time ("")
to provide access to and entry upon the Slope Parcel and the Perimeter Landscape Areas
for the purpose of constructing, installing, maintaining, repairing and replacing the Slope
Parcel, the Perimeter Landscape Areas,any LandscapeImprovements,any other
improvements installed upon the Slope Parcel and/or the Perimeter Landscape Areas by
City Improvements
the City (the "") from time to time (including, without limitation,
signage)and vegetation thereon and for use, installation, maintenance, repair and
replacement of the Utilities, in each case as may be required or reasonably necessary for
the installation, construction, use, maintenance, repair and replacement of the Landscape
Improvements and Utilities by the City andthe City Easement Users, and including,
without limitation, in the event City is required to exercise any of its remedies with respect
to maintenance of any one or more of the Landscape Areasdue to default by any Owner
under the terms of this Agreement.The foregoing City Easementshall be used forthe
following: (a)pedestrian and vehicular access, ingress and egress to and from, upon and
acrosseach of theDevelopmentParcels and all streets and roads, public or private,
abutting or upon such Development Parcels,to the Slope Parcel and Perimeter Landscape
Areaby City Easement Users, including, but not limited to, ingress and egress for parking
purposes, delivery and service trucks and for all other purposes described in this
Agreement while work is being performed on or in connection with the Slope Parcel
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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FINAL.docx
and/or Perimeter Landscape Area; (b)parking by City Easement Users on the portion of
such City Easement Areas designated as parking areas for invitees and guests of Developer
and its Successor Owners (the location of such parking areas may be modified from time to
time by the then fee owner(s) of such parking areas,provided that such modifications shall
not prohibit reasonable parking access and use by City Easement Users adjacent to the
SlopeParcel and Perimeter Landscape Areas) while and for the purpose of accessing,
inspecting, evaluating, designing, surveying, planting, replanting, maintaining or otherwise
conducting work, including without limitation, Utility work,or performing serviceson the
Slope Parceland/or Perimeter Landscape Area or in connection therewith; and (c)repair,
restoration and maintenance of the Slope Parcel, the Perimeter Landscape Area and/or the
Utilities.The City Easement Areas and the access to and right to parkthereon shall be
made available to Cityand its successors and assignsat no charge.
Insurance
12.2.If any City EasementUser exercises its rights under this Section 12, then,
notwithstanding anything in this Agreement to the contrary prior to such entry by such
City Easement User shall provide the Owner of the affected Development Parcel with
evidence that it is carrying insurance satisfying the requirements set forth in Section 7 of
this Agreement, provided that the City shall not be required to provide such insurance
provided that it can provide evidence of self-insurance.
Indemnity
12.3.
12.3.1Except as set forth in section 12.3.2below, ifthe City or any Easement User
Indemnifying Party
exercises its rights under this Section 12(the ""), such party shallprotect,
indemnify, defend and hold harmless Developer and any Successor Owner from and against any
and all claims, actions, damages, costs (including, without limitation, attorneys'fees), injuries, or
liability, arising out of or in connection with (a)the presence, activities or use of the City
Easement Areaby or on behalf of the Indemnifying Party, (b)entry onto the on the Development
Parcels by or on behalf of the Indemnifying Party in connection with this Agreement,and
(c)bodily injury to or death of any person (including any employee or contractor of the
Indemnifying Party) or damage to or loss of use of property resulting from such acts or
omissions of Indemnifying Party (including any employee or contractor of the Indemnifying
Party)with respect to the Development Parcels; provided that the foregoing indemnity shall not
apply to the extent of the negligence, willful misconduct or fraud of the party that would
otherwise be entitled to be indemnified pursuant to the terms hereof.The provisions of this
Section shall survive the termination of this Agreementonly with respect to events occurring
while this Agreement is in effect.
AffectedParty
12.3.2In the event the City or City Easement Users (the "") are
exercising their respectiverights under this Section 12 due to or arising out of a default by any
Owner, the provisions of Section 1.2.31 shall not apply and the following provisions shall
instead apply: The Affected Partyshall protect, indemnify, defend and hold harmless Developer
and any Successor Owner from and against any and all claims, actions, damages, costs
(including, without limitation, attorneys'fees), injuries, or liability, arising out of or in
connection with (a)the negligentactivities or use of the City Easement Area by or on behalf of
the Affected Party, and (b)bodily injury to or death of any person (including any employee or
contractor of the Affected Party) or damage to or loss of use of property resulting from such
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
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negligent acts or omissions of Affected Party with respect to the Development Parcels; provided
that the foregoing indemnity shall not apply to the extent of the acts, negligence, willful
misconduct or fraud of the party that would otherwise be entitled to be indemnified pursuant to
the terms hereof.The provisions of this Section shall survive the termination of this Agreement
only with respect to events occurring while this Agreement is in effect.
Survival
12.4. The provisions of this Section12survive the termination of this Agreement.
Estoppel Certificate
13. Each party hereby covenants that within ten (10)business days of
the written request of any other party it will issue to such other party an Estoppel Certificate
stating:(a)whether the party to whom the request has been directed knows of any default under
this Agreement and if there are known defaults specifying the nature thereof; (b)whether to its
knowledge this Agreement has been assigned, modified, or amended in any way (and if it has,
then stating the nature thereof); and whether to the party's knowledge this Agreement is as of that
date is in full force and effect.
Excuse for Non-Performance
14. Each party shall be excused from performing any
obligation or undertaking provided in this Agreement except any obligation to pay any sum of
money under the applicable provisions hereof, in the event and so long as the performance of any
such obligation is prevented or delayed, retarded, or hindered by act of God, including, without
limitation, inclement weather, fire, earthquake, floods, explosion, actions of the elements, war,
invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of
labor, equipment, facilities, materials, or supplies in theordinary course on the open market;
failure of normal transportation strikes, lockouts, action of labor unions, condemnation,
requisition, laws, orders of governmental or civil or military authorities.
Effect on Third Parties
15. Except as herein specifically provided, no rights, privileges or
immunities conferred upon the parties to this Agreement shall inure to the benefit of nor shall
any person be deemed to be a third party beneficiary of any of the provisions contained herein.
Entire Agreement
16. This Agreement constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of
the terms and conditions thereof. Prior agreements, representations, negotiations, and
understandings of the parties hereto, oral or written, express or implied, are hereby superseded
and merged herein.
Modification
17. This Agreement may not be modified in any respect or rescinded, in
whole or in part, except by an instrument in writing, duly executed and acknowledged by the
parties hereto, or their successors or assigns that are the record owners of the Landscape Areas.
Any change, modification, amendment or rescission which is made without the written consent
of such owners shall be null and void and of no effect. No consent or approval of any owner
other than those owners described in the first sentence of this Section shall be required in order
to modify or amend any provisions of this Agreement.
Severability
18. If any term, covenant, conditionor provision of this Agreement, or the
application thereof to any person or circumstance, shall to any extent be held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
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covenants, conditions or provisions of this Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
Governing Law
19. This Agreement and the obligations of the parties hereunder shall be
interpreted, construed, and enforced in accordance with the laws of the State of California.
Waiver and Default
20. The waiver by one party of the performance of any provision of
this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of
any other provision under this Agreement or of any subsequent breach by the other party of the
same provision.
References to Sections, Clauses and Exhibits
21. Unless otherwise indicated, references
in this Agreement to sections,clauses and exhibits are to the same contained in or attached to this
Agreement and all exhibits referenced in this Agreement are incorporated in this Agreement by
this reference as though fully set forth in this Section.
Counterparts
22. This Agreement maybe executed in one or more counterparts. All
counterparts so executed shall constitute one agreement, binding on all parties, even though all
parties are not signatory to the same counterpart.
Runs With the Land; Release and Termination
23. This Agreement and agreements,
rights, covenants, conditions, restrictions and grants of easements hereof shall constitute
equitable servitudes and covenants running with the land comprising the Development Parcels,
Parcels
the Slope Parcel and the Perimeter Landscape Areas (collectively, the “”) and each and
every portion thereof and shall be binding upon or inure to the benefit of (as the case may
require) the parties hereto, and their respective heirs, successors, and assignswho become
owners of the Parcels from time to time, and all other persons acquiring their respective Parcels
or any part thereof, whether by operation of law or in any other manner whatsoever and shall
continue to be imposed upon the Parcels and each portion thereof as a servitude in favor of each
and every other portion of the Parcels, as the dominant tenement or tenements, as the case may
be. All references in this Agreement to "City", “Developer”and "Owner"shall include their
respective heirs, representatives, successors and assigns. This Agreement and all the terms,
covenants and conditions herein contained shall be enforceable as equitable servitudes in favor
of the Slope Parceland the Perimeter LandscapeAreasand anyportion thereof. All references
in this Agreement to "Developer" shall mean and refer to each successor owner of each
Development Parcel, including without limitation, the Successor Healthcare Owner with respect
to the Healthcare Parcel.
\[signature page follows\]
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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FINAL.docx
IN WITNESS WHEREOF, City and Developer have signed this Agreement as of the date
first set forth above.
CITY OF TUSTIN:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:__________________________
Erica N. Rabe
City Clerk
APPROVED AS TO FORM
By:__________________________
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Tustin Counsel
By:__________________________
Amy E. Freilich
DEVELOPER:
1C TUSTIN LEGACY, LLC,
a Delaware limited liability company
By:Regency Centers, L.P.,
a Delaware limited partnership
Its Sole Member
By:Regency Centers Corporation,
a Florida corporation
Its General Partner
By:
John Mehigan
Vice President
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California)
County of _________________)
On ___________________, before me, ________________________, Notary Public,
personally appeared ________________________, who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:(Seal)
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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EXHIBIT "A-1"
LEGAL DESCRIPTION OF RETAIL PARCEL
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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EXHIBIT "A-2"
LEGAL DESCRIPTION OF HEALTHCARE PARCEL
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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EXHIBIT "B"
LEGAL DESCRIPTION OF SLOPE PARCEL
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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EXHIBIT "C"
DEPICTION OF LANDSCAPE AREAS
ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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ATTACHMENT 25
Tustin_Regency_DDA_Attachment_25_ City of Tustin/Regency Centers DDA
Slope_and_Landscape_Maintenance_Agreement 9-28-2015 (agd)
September 29, 2015
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ATTACHMENT 26
TRIP ALLOCATION
ATTACHMENT 26
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
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ATTACHMENT 27
FORM OF
LICENSE FOR SITE DEVELOPMENT
Agreement
THIS LICENSE FOR SITE DEVELOPMENT(this “”) is made and entered
Effective Date
into as of _____________________, 20__(the “”), by and between 1C TUSTIN
Developer
LEGACY, LLC, a Delaware limited liability company(“”),and the CITY OF
City
TUSTIN (the “”), with reference to the facts set forth below:
RECITALS
A.WHEREAS, the City and Developer have entered into that certain Tustin Legacy
Disposition and Development Agreement for Disposition Parcel 1Cdated as of
DDA
______________, 2015(the “”), for the purchase by Developer of certain real property
located in the City of Tustin, County of Orange, State of Californiadescribed therein as the
Development Parcels
“”,upon which Developer intends to construct certain retail and healthcare
improvements. Capitalized terms not otherwise defined herein shall have the meaningsgiven to
such terms in the DDA.
B.WHEREAS, in connection with the acquisition and development of the
Development Parcels, the City has agreed to grant a construction license to Developer in
accordance with the provisions of Section8.2.5of the DDA to permit Developer to enterupon
ExhibitA
the Healthcare Parcel as more particularly described on ””attached hereto and
ExhibitBHealthcare Parcel
depicted on ””attached hereto (the “”)prior to the Healthcare
Property Close of Escrow to construct the Minimum Horizontal Improvements (as defined
below)thereon.
NOW THEREFORE, in consideration of the promises and mutual covenants, agreements
and conditions hereof, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto agree asset forth below.
AGREEMENT
1.Recitals. The recitals set forth above are true and correct and are incorporated
herein by this reference.
2.Term. The term of this Agreement and the License shall commence as of the
Effective Date and,unless extended by the Parties in writing or terminated earlier in accordance
with this Agreement, shall remain in effect only until the earlier to occur of the following (the
Termination Date
“”): (a) the Healthcare Property Close of Escrow under the DDA; (b) 5:00
pm on the Healthcare Property Outside Closing Date (as the same may be extended pursuant to
Section7.1.3of the DDA) provided that the Close of Escrow has not then occurred; (c) the
completion of the Minimum Horizontal Improvements; or (d) once Developer has commenced
th
construction of the Minimum Horizontal Improvements, the thirtieth(30)calendar day after
Developer ceases to perform the Minimum Horizontal Improvements uponthe Healthcare
Property, unless such failure to prosecute the work to completion is due toaForce Majeure
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Delay.Upon the Termination Date, Developer shall return the Healthcare Parcelto the City in
the condition described in Section8and,in the event the Close of Escrow under the DDA has
not occurred, shall relinquish all right, title andinterest in and to the Healthcare Parceland any
Minimum Horizontal Improvementsperformed and Developer and the City agree that any such
Minimum Horizontal Improvementsshall be transferred to the City without compensation to
Developer and the City shallaccept possession of any such Minimum Horizontal Improvements.
3.Construction License. The City hereby grants to Developer and to the Developer
License
Representatives a non-exclusive, revocable license (the “”) over the Healthcare Parcel
for purposes of carrying out the Minimum Horizontal Improvements.Developer is granted
control of the Healthcare Parcelfor this purpose. Notwithstanding the foregoing, the License
and this Agreement shall be revocableby the City prior to the Termination Date only in
accordance with Section19of this Agreement.
4.Commencement of Work. Developer may not enter the Healthcare Parcelor
commence the Minimum Horizontal Improvementsuntil each of the following has occurred:
(a)the Retail Property Close of Escrow shall have occurred; (b)the City's issuance of grading
permits with respect to the grading and incidental work proposed by Developer and approved by
Grading Permit
the City (“”); (c)to the extent required under the DDAand the conditions of
\[Planning Commission/City Council\]
approval for the Project adopted by the with respect the
Applicable Approvals,the provision by Developer of the Construction Bond (as defined in the
DDA); (d)theexecution of any subdivision improvement agreement requiredby the City in its
Governmental Capacity as a condition to commencement of the Minimum Horizontal
Improvements, if any; (e)theprovision of the insurance required by this Agreement, and (f)the
satisfaction of all other conditions to commencement of construction of the Minimum Horizontal
Improvementsdescribed in the Entitlements, the DDA and the Schedule of Performance. This
Agreement and the License shall each become null and void unless construction of the Minimum
Horizontal Improvementsbegins on or prior to the date set forth thereforin the Schedule of
Performance attached to the DDA, as such date may be extended for Force Majeure Delay.For
Minimum Horizontal Improvements
purposes of this Agreement, the term “”shall mean the
Healthcare Rough Grading (as defined in the DDA) and the Healthcare Perimeter Landscaping
(as defined in that certainSlope Parcel Easement Agreement and Landscape Installation and
Maintenance Agreementdated _______, by and between Developer and Cityand recorded as
Instrument No._______ in the Official Records of Orange County).
5.Repair.Except as authorized by this License and/or the Grading Permit, in the
event that Developer's performance of the Minimum Horizontal Improvementsdamages or
destroys any improvements located on City-owned property (other than on the Healthcare Parcel)
or on public streets or rights of way, Developer shall repair such damage to as near a condition as
existed prior to the performance of such Minimum Horizontal Improvementsas is reasonably
practicable at Developer's sole cost and expense.
6.Insurance. Prior to Developer exercising the License, Developer shall, at its own
expense, cause to be procured and maintained the policies of insurance required pursuant to
PLL
Section11.1of the DDA. Specifically, Developer shall obtain Pollution Legal Liability (“”)
insurance meeting the requirements in Section11.1.4of the DDA.Developer shall not rely upon
or have rights to claim for reimbursement, payment, or coverage under any PLL insurance
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presently maintained by City. The provisions of Section11of the DDA shall apply with respect
to this Agreement as though fully set forth herein.In addition, to the extent the contractor
performing the Minimum Horizontal Improvementson behalf of the Developer has or obtains a
Contractor Pollution Liability Policywith respect to the Minimum Horizontal Improvements
CPL
(“”), Developer shall use commercially reasonable efforts to have the contractor cause its
policybe primary and the PLL policy and City policies to be non-contributorywith respect to
matters covered by the CPL policy.Developer shall be responsible for all self-insured retention
or deductible amounts due under the PLL policy.
7.“As-Is, Where-Is”License. Developer acknowledges that (a) the City makes no
representations or warranties as to the condition or suitability of the Healthcare Parcel, the soil
located thereon, any hazards or Hazardous Materials, contaminants or pollutants that may be
present on or below grade at the Healthcare Parcel, or otherwise; (b) Developer's use of the
Healthcare Parceland the soil thereon and its license of the Healthcare Parcelis “as is, where is”
as described in Section4.5.2of the DDA, in its present condition and subject to and without
liability to City, without any representation, promise, agreement or warrantyon the part of the
City regarding such condition and state of repair needed for the exercise of this License.
Developer acknowledges that it has inspected the Healthcare Parceland its determination to
engage in this undertaking is based solely on its own investigation and is not based on reliance of
any statements, suggestions or information provided by the City, its agents, officers, employees
or contractors. Developer further acknowledges that the City shall not be liable for any latent or
patent defects in the Healthcare Parcel, whether disclosed or not.
8.Condition of Healthcare Parcelat Termination of License;Construction Bonds.
8.1Conditionof Healthcare Parcel.At the Termination Date or upon any
earlier termination of the License and this Agreement (other than termination due to the
occurrence of the Close of Escrow), Developer shall (a)remove its property from the Healthcare
Parcel,including,without limitation,all Hazardous Materials it brought to or is required to
remove from the Healthcare Parcelin accordance with Sections10 and 12of this Agreement;
(b)report, contain, remove and Remediate in accordance with Sections10 and 12of this
Agreement any land, air or water pollution (c)deliver the Healthcare Parcelto the City in lien
free condition; (d)cause the Healthcare Parcel, including without limitation, all Minimum
Horizontal Improvements, to be delivered in a condition consistent with the Grading Permit (but
in the final condition specified in the Grading Permit only to the extent the Minimum Horizontal
Improvementshas been completedas of the date of termination) and all Governmental
Requirements,and (e)deliver the Healthcare Parcelin a condition meeting all requirements of
the City of Tustin Water Quality Ordinance, and all federal, state, and Regional Water Quality
Control Board and Regional Air Quality rules, permits and regulationsand applicable Mitigation
Monitoring and Reporting Requirements relating to such standards, including, without limitation,
keeping the adjoining public roadways clear of any dirt or mud.
8.2Construction Bond.Upon termination of this Agreement for any reason
other than Close of Escrow under the DDA,if Developer shall have failed in any manner to
comply with the requirements of Section8.1of this Agreement, the City shall have the right, in
its sole discretion, after giving Developer written notice of such failure and an opportunity to
cure the same in accordance with the terms and conditions of Section31below, to cause the
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surety under the Minimum Horizontal ImprovementsConstructionBondto satisfy the
requirements of Section8.1(including without limitation, to restore the condition of the
Healthcare Parcelto the condition specified by Section8.1of this Agreement and to pay in full
all contractors and subcontractors performing the Minimum Horizontal Improvementsor any
other work performed pursuant to this Agreement)or to seek reimbursement under such bond for
work performed or amounts paid by the Cityin satisfaction of the foregoing.Uponpayment in
full of all amounts due and release of all liens (or bonding of outstanding liens in the amounts
required by the DDA) and performance by Developer or the surety under the Minimum
Horizontal ImprovementsConstruction Bond of the work required by thisSection8, the City
shall release the Minimum Horizontal ImprovementsConstruction Bond.
8.3Survival. The provisions of this Section8shall survive termination of this
Agreement.
9.Release.Developer, on behalf of itself, its members, principals, officers, elected
officials beneficiaries, trustees, shareholders, partners, heirs, personal representatives, successors
Releasing Parties
and assigns (collectively, the “”), as the case may be, hereby waives the right
to recover from and fully and irrevocably releases City and its officers, elected officials,
Released
employees, consultants, agents, representatives and contractors (collectively, the “
Parties
”), from and against any and all Claims that each of the Releasing Parties may now have
or hereafter acquire arising from or related to the activities of Developer and any damage or
destruction of any improvements located on the Healthcare Parcel,excepting from the foregoing
release: (a) any Claim that is the result of the gross negligence, willful misconduct or fraud of the
City or any of a Released Party; (b) any breach by the City of any of the covenants or obligations
set forth in this Agreement, and (c) any other Claims to the extent such claims are based upon the
active negligenceof the City or any Released Parties. This release includes Claims of which the
Releasing Parties are presently unaware or which the Releasing Parties do notpresently suspect
to exist which, if known by the Releasing Parties, would materially affect the Releasing Parties'
decision to release the Released Parties. The Releasing Parties specifically waive the protection
of California Civil Code Section 1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED THIS SETTLEMENT WITH THE DEBTOR.”
In this connection and to the extent permitted by law, the Releasing Parties realize and
acknowledge that factual matters now unknown to it may have given or may hereafter give rise
to Claims or controversies which are presently unknown, unanticipated and unsuspected, and the
Releasing Parties further agree that the waivers and releases herein have been negotiated and
agreed upon in light of that realization and that the Releasing Parties nevertheless hereby intend
to release, discharge and acquit the Released Parties from any such unknown Claims and
controversies to the extent set forth above. To the extent permitted by law, the foregoing
provisions of this Section9shall survive the termination of this Agreement.
CITY HAS AGREED TO ENTER INTO THIS AGREEMENT AND HAS GIVEN THE
RELEASING PARTIES MATERIAL CONCESSIONS REGARDING THIS TRANSACTION
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IN EXCHANGE FOR THE RELEASING PARTIES AGREEING TO THE PROVISIONS OF
THIS SECTION. BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES THAT (A) IT
HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS SECTION, (B) IT
HAS HAD THE CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS
MEANING AND SIGNIFICANCE, AND (C) IT HAS ACCEPTED AND AGREED TO THE
TERMS SET FORTH IN THIS SECTION.
_______________________________________
CITYDEVELOPER
10.Indemnity. Developer hereby agrees to protect, indemnify, defend and hold
harmless the City Indemnified Parties from and against any and all Claims accruing during the
term of this Agreement to the extent arising from or related to Developer'sor Developer
Representatives'activities during the term of this Agreement including, but not limited to (a)the
acts or omissions to act of Developer or the Developer Representatives arising from the
presence, activities or work on or use of the Healthcare Parcelby Developer or the Developer
Representatives, including without limitationwith respect to any Minimum Horizontal
Improvementsperformed by Developer or any Developer Representatives on the Healthcare
Parcelpursuant to this Agreement, any inspections, surveys, tests, Investigations and studies
carried out by Developer or the Developer Representatives on the Healthcare Parcelduring the
term of this Agreement or from the exercise of the License by Developer or the Developer
Representatives; (b)entry onto the Healthcare Parcelby Developer or the Developer
Representatives in connection with this Agreement, (c)bodily injury to or death of any person
(including without limitationany employee or contractor of the City Indemnified Parties) or
damage to or loss of use of property resulting from such acts or omissions of Developer or any of
the Developer Representativesand (d) the cost of Remediation of Hazardous Materials as may be
requiredby and compliance with any Construction Conditions (defined in Section12.1.3below)
established by any Environmental Agency or Environmental Law and accepted by the City and
Developer pursuant to Section 12.1.3; provided that Developer shall not be responsible for and
shall have no obligation to defend or indemnify the City Indemnified Parties to the extent a
Claim relates to or arises from: (i)the active negligence, gross negligence or willful misconduct
of a City Indemnified Party and/or (ii)the mere discovery of existing conditions, contamination
or Hazardous Materials at, on, under or emanating from the Healthcare Parcel(subsections (i)
Excluded Claims
and (ii) of this paragraph being, collectively, “”).If the City is served or
otherwise presented with a Claim or potential Claim for which it believes it is entitled to defense
and/or indemnity under this Section, City will notify Developer of such Claim or potential Claim
within ten(10) Business Days of receipt of such claim. Selection of counsel and defense of a
Claim shall be conducted in accordance with the provisions of Section10.1of the DDA. The
provisions of this Section shall survive termination of this Agreement.
11.Costs; No Liens. Developer shall bear all costs relating to the Minimum
Horizontal Improvements. Developer and the Developer Representatives shall not place, allow
to be placed on, or incur any liens against the Healthcare Parcelor any portion thereof in
connection with the Minimum Horizontal Improvementsor in any way attributable to the acts of
Developer and/or the Developer Representatives on the Healthcare Parcel. Developer agrees to
indemnify, defend, and hold the City and its elected and appointed officials, employees, agents,
attorneys, affiliates, representatives, contractors, successors and assigns free and harmless from
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and against any and all Claims arising with respect to payment of liens assessed or levied against
the Healthcare Parceland/or the Improvements in connection with the Minimum Horizontal
Improvementsperformed,materials furnished, or any other activities under control of Developer
or the Developer Representatives which, pursuant to the laws of California, may become a lien
on the Healthcare Parcel. Should any lien be filed against the Healthcare Parcelin connection
with the Minimum Horizontal Improvements, Developer shall promptly bond around the lien as
part of disputing the lien with the party asserting the lien. The provisions of this Section shall
survive termination of the License and this Agreement. The City may post notices of non-
responsibility on the Healthcare Parcelprior to Developer's commencement of any work under
this Agreement.
12.Environmental Remediation.
12.1Remediation.
12.1.1Loss or Damageto Improvements.Inthe event of damage to or
loss ofany improvements or personal property situated on the Healthcare Parcel, Developer shall
take all appropriate steps to erect fences to preclude unauthorized access to the Healthcare Parcel
and otherwise mitigate hazardous and unsafe conditions within the Healthcare Parcelcaused by
the damage and destruction.
12.1.2Pre-Existing Environmental Conditions.If as a result of
performing any of the work permitted by this Agreement Developer discovers the presence of
Hazardous Materialson the Healthcare Parcel that was present prior to any Developer entry or
activity upon the Healthcare Parcelthat was not caused by a Developer Release(as defined
below)or such pre-existing Hazardous Material is exacerbated by Developer or any Developer
Representative, then promptly upon becoming aware of the same, Developer shall (a)provide
written notice to the City of such pre-existing or exacerbated Hazardous Material, and (b)tender
a claim for the Remediation of such pre-existing or exacerbated Hazardous Material under
Developer's PLL insurance policy maintained pursuant to and in accordance with Section6of
this Agreement and Section11.1.4of the DDAand diligently pursue such claim.Except as
provided for in this Section 12.1.2, and if Developer has maintainedthe PLL policy with at least
the limitsof insurancerequired in, and at all times required by,Section6of this Agreement and
Section11.1.4of the DDA and such policyis in effectand has not been cancelledwhen such
claim is tendered, then neither Developer nor any Developer Representatives shall have any
further obligations or liabilitiesin connection with or related to such pre-existing or exacerbated
HazardousMaterials.
12.1.3EnvironmentalConditionsArising During Occupancy.If any
release of Hazardous Materials on the Healthcare Parcel occurs during the term of Developer’s
DeveloperRelease
entry or activities upon, the Healthcare Parcel, (a "") during the term of this
Agreement,thenDeveloper shall(a)promptly upon becoming aware of same, provide written
notice (or in the event of emergency, telephonic notice, followed by written notice) of any such
Developer Release to the City;and (b)tender a claim for the Remediation of such Developer
Releaseunder Developer's PLL insurance policymaintained pursuant toand in accordance with
Section6of this Agreement and Section11.1.4of the DDAand diligently pursue such claim;
and (c)indemnify the City for the costs of such Remediation in accordance with Section10
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above; and (d)Remediate the Developer Release in compliance with and to the extent required
by Environmental Laws and any Environmental Agencyor Agencies to the level required by
Governmental Agencies forcommercial development as described by the Applicable Approvals,
or if such removal is prohibited by any Environmental Laws, take whatever action is required by
applicableEnvironmental Law and such applicableEnvironmental Agencyor Agencies;and
(e)take such other action as is reasonably necessary to have the full use and benefit of the
Healthcare Parcelas contemplated by this Agreement;and(f)to the extent a No Further Action
Letter is required by the applicable Governmental Agencyas evidence of completion,provide
the City with satisfactory evidence of the actions taken as required in this Section 12.
Developer's obligation to Remediate with respect to any affected area under this Section 12.1.3
shall be considered fully satisfied upon receipt of a No Further Action Letter with respect to such
No Further Action Letter
affected area.For purposes of this Agreement, the term “”shall mean
a“No Further Action Letter,”“Closure Letter”or other equivalent document to be issued by the
appropriate Governmental Agency, which letter is to generally confirm that “no further action”is
to be required to address the existence of Hazardous Materials withinthe affected areaand there
are no constraints or restrictions on future use.The City shall have a right to have an observer
present during all such testing and remediation work.City may provide comments to any
RAP
remedial action plan prepared by Developer for any remediation(a “”),and Developer shall
not unreasonably decline to incorporate such comments in such RAP;provided, however, that
City shall not have approval or consent rights with respect to such RAPunless the applicable
Governmental Agency requires the consent of the City for the approval of any RAP or issuance
of a No Further Action Letter, in which event the City shall have a right to consent but agrees not
to unreasonably withhold, delay or condition such consent.Notwithstanding the immediately
preceding sentence, in the event that the applicable Governmental Agency requires the consent
of the City for the approval of any RAP or issuance of a No Further Action Letter, the City shall
have the right to withhold such consent only to the extent necessary to assure that there shall be
noland use control, constraint, limitation or restriction onthe construction and sale of
commercial medical uses, including without limitation Medical Uses onthe Healthcare Parcel
Constraints
(“”); provided, however,that the City shall not unreasonably withhold its consent to
Construction Conditions (defined below) that meet the requirements of clauses (a) and (b) below.
Examples of Constraints that the City may reject in its sole discretionare Constraints that affect
the ability of any Person to construct Medical Uses on the Healthcare Parcel, to dig 12 feet or
less below the surface of the land and the like. On the other hand, the Parties recognize that
certain remedial or removal action to address Hazardous Materials at the Healthcare Parcelmay
not be feasible economically or from an engineering perspective without imposition of certain
conditions. Such conditions that will not provide Constraints on the use of the Healthcare Parcel
ConstructionConditions
are referred to herein as “”. As an example,ifmethane exists below
the surface of the Healthcare Parcel,in lieu of removal of the methane, use of a methane boot
may be required. If Developer proposes a Construction Condition and the City does not agree to
Developer's assertion and withholds consent on that basis,then Developer will obtain and submit
to the City estimates from at least two contractors as to the cost to Remediate the Healthcare
Parcelto a level without Constraints without Construction Conditions and the cost to Remediate
to such level with Construction Conditions.If(a)the cost to Remediate the pre-existing
Hazardous Materials without imposition of Construction Conditionsis more than 15%greater
than the cost to Remediate with the imposition of Construction Conditionsand (b)following
Remediation to the standard required with imposition of the Construction Condition there is no
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Constraint on the ability to construct and sellthe Healthcare Parcel for Medical Uses consistent
with the Applicable Approvals,then failure ofthe City to agree to such Construction Condition
will be deemed unreasonable absent another basis for denial asserted by the City.
12.1.4EnvironmentalReports.Upon written request from the City for
the same, Developer shall at no cost to the City provide the City with copies of (a) all test results
and data obtainedin connection with testing related to Hazardous Materials,and (b) any final
environmental and/or consulting reports prepared in connection with,any investigation and/or
Remediation of the pre-existing or exacerbated Hazardous Material or a Developer Release.
12.2Assignment of Rights.City hereby assignsto Developer,to the extent such rights
are assignable, on a non-exclusive basis and as the Parties'interestsmay appear, any rights that
City has against any Person with respect to any Remediation, indemnification or liability with
respect to Hazardous Materials located on or about the Healthcare Parcelthat Developer is
responsible for under this Agreement, excluding any rights with respect to City's existing
pollution legal liability insurance policies.
12.3Cooperation; Further Assurances.City shall reasonably cooperate with Developer
in pursuing and/or processing any claim against any insurer (excluding claims under City's
existing pollution legal liability insurance policies)or any other Person with respect to
Developer's obligations under this Agreement, including, without limitation, by making a claim
against any insurer in City's name for the benefit of Developer with respect to any costs, liability
or damages incurred by Developer under this Agreement, all at Developer's cost and expense.
Developer shall have full authority to pursue such claims in its own name and without consent or
approval from City, and shall have the right to make all decisions in connection with the pursuit
of any such claim. In the event that for any reason the assignment of rights set forth in Section
12.2above is ineffective or incomplete, City agrees: (a)upon written request of Developer, to
pursue claims against any Person for whom the assignment of rights is ineffective or incomplete
Third Party
on behalf of the Developer in City's own name for the benefit of Developer (a “
Claim
”) subject to the provisions of this Section, (b)to initiate a Third Party Claim requested by
Developer, which may include an action, arbitration, reference or other alternative dispute
resolution mechanism and (c)ifthe City has no claim, to cooperate with Developer in pursuing
any such matterinitiated by Developer.If City fails to initiate a Third Party Claimwhere the
City has such a claim,as required hereunder, Developer shall be excused from its obligations to
remediate under Section12.1above. Cityshall not unreasonably withhold, condition or delay its
compliance with Developer's requests in connection with the prosecution and resolution of such
Third Party Claimincluding, without limitation,with respect to venue, strategy, law and motion
and settlement.The City shall use its commercially reasonable diligence in prosecuting such
claim to conclusion.City's prosecution of any Third Party Claim or other compliance with the
provisions of thisSection12shall be at Developer's sole cost and expense, and if applicable,
with the assistance of counsel selected by Developerwho shall represent the City as well as
Developer as the real party in interest, except in the event of a conflict ofor disparateinterest.
Such cost and expense of City shall include reimbursement for time of City personnel and
counsel incurred in connection with such pursuit,to be charged at the then existing rates charged
by City with respect to such personnel. Each of the Parties shall execute and deliver any and all
additional papers, documents or instruments, and shall do any and all acts and things reasonably
necessary or appropriate in connection with the performance of its obligations under this Section
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12in order to carry out the intent and purpose of this Agreement. City shall promptly pay over
to Developer any award, payment, judgment or settlement received by it in respect of any Third
Party Claim. In the event the Healthcare Property Close of Escrow occurs under the DDA, this
Section 12.3shall survive the termination of this Agreement.
12.4Survival.In the event this Agreement terminates due tothe Healthcare Property
Close of Escrow under the DDA, the terms of the DDA shall govern the Remediation of the
Healthcare Parcelby Developer and the provisions of this Section 12shall not survive other than
Sections12.2and12.3which shall surviveonly with respect to any pre-existing Hazardous
Materials discovered on the Healthcare Parcelby Developer during the term of this Agreement
or a Developer Release.In the event this Agreement terminates in accordance with subsections
(b), (c) or (d) under Section 2of this Agreement,the parties'rights and obligations under
Sections 12.1.1, 12.1.2 and12.1.3shall survive the termination of this Agreement and the parties'
obligations under Sections12.2 and 12.3shall survive only with respect to anypre-existing
Hazardous Materials discovered on the Healthcare Parcelor exacerbated by Developer during
the term of this Agreementor any Developer Release.To the extent that completion of any
Remediation is required pursuant to the foregoing, Developer will complete such Remediation
obligations in full and shall not be relieved of its obligationsas a result of the termination of this
Agreement or for any other reason.
13.No Supervision or Control. The City (whether acting in its Governmental
Capacity or its Proprietary Capacity) does not have any right, and hereby expressly disclaims any
right,of supervision or control over the architects, designers, engineers or persons responsible
for drafting or formulating of any plans, drawings and related documents of Developer.
14.No Waiver. Nothing contained in this Agreement shall be deemed to waive the
right of the City to act in its Governmental Capacity with respect to the consideration and
approval of the Entitlements and all other permits, licenses and approvals requested by
Developer from time to time in connection with the Project
15.Bailee Disclaimer and Waiver of Claims.Developer acknowledges and agrees
that City has granted its permission for use of the Healthcare Parcelonly for the purposes and in
accordance with the provisions of this Agreement. By entering into this Agreement, City is not
agreeing in any manner to accept obligations or responsibility for the safekeeping of the vehicles
or other property of Developer or of Developer's agents, contractors, officers, employees or
invitees. This Agreement is not a contract for bailment or deposit of goods for safekeeping and
City in no manner whatsoever purports to be a bailee. As a material part of the consideration to
be rendered to City for this Agreement, Developer hereby waives any and all claims or causes of
action against City, its officers, agents, or employees which it may now or hereafter have for
damages to, loss of, or theft of Developer's vehicles or other property anywhere in, about, or on
Tustin Legacy, including, but not limited to, the Healthcare Parcel, from any cause whatsoever,
unless such damage, loss, or theft results from the sole negligence, gross negligence or willful
misconduct of City, its officers, agents, or employees.
16.Compliance with Lawsand Terms of DDA. Developer will at all times during the
term of this Agreementpromptly observe and comply, at its sole cost and expense, and shall
maintain the Healthcare Parceland cause its use of the Healthcare Parcel, including without
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limitation, all Minimum Horizontal Improvements, to be performed in accordance with the
requirements of the DDA, the Grading Permit and all Governmental Requirements, including
without limitation all applicable federal and state labor laws and regulations, and all permits
required to perform the Minimum Horizontal Improvements.Without limiting the generality of
the foregoing, the provisions of Sections8.8 through 8.12,inclusive,of the DDA and the
indemnities set forth in Sections 4.6.4(f), 8.8.5,8.9, 8.11, 8.12and 10.1of the DDA shall apply
as though fully set forth herein.
17.Data Sharing.Developer agrees to provide the City with copies of all soil test
results. Notwithstanding the provisions of Section 17, and except for the routine reporting of
data incident to a permit application, should Developer discover conditions on the Healthcare
Parcelduring the conduct of the Minimum Horizontal Improvements, that Developer believes
may require reporting to any Governmental Authority (local, regional, state, or federal),
Developer shall, as promptly as reasonably practical, advise the City of such discovery and
thereafter provide City with the field and/or laboratory data pertaining to such discovery. The
City shall be responsible for making whatever report or reports may be required in light of such
discovery(ies).
18.Rights of City to Revoke License for Default. This Agreement and the License
granted hereby may be revoked by the City by provision of written notice to Developer,(a)
during the continuation of any default by Developer under this Agreement beyond the notice and
cure period set forth in Section 32,or (b) at any time if the City determines, in its sole discretion,
that the conduct or activities of Developer create health or safety concernsrequiring stoppage of
the work.If Developer disputes the City's revocation of the License pursuant clause (b) above,
Developer shall have the right to provide the City with written notice within three (3) calendar
day(s) following delivery of such revocation notice setting forth Developer's basis for the
dispute. Developer and City shall meet and confer within five (5) Business Days from the
delivery of Developer's notice, in order to identify specific actions and remedies to be taken by
Developer to cure the default asserted by the City and provided that Developer agrees in writing
to take such actions and to promptly prosecute them to completion in a manner satisfactory to the
City in its reasonable discretion, the City shall not unreasonably withhold the reinstatement of
the License and this Agreement.
19.Additional Rules and Regulations Applicable to Use of Healthcare Parcel. In
connection with its use of the Healthcare Parcel, Developer shall comply with the rules and
Exhibit C
regulations of the City attached as “”to this Agreement.
20.Dispute Resolution. In the event of a dispute between the Parties with respect to
this Agreement, the Parties agree that they shall resolve such dispute in accordance with the
provisions of Section18.1of the DDA, and the cost of any such proceeding shall be borne in
accordance withthe provisions of Section18.2of the DDA and the provisions of Section18.9of
the DDA shall apply with respect to such dispute.
21.Governing Law. This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of California.
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22.Relationship of Parties; Not an Easement or Interest in Land. Nothing contained
in this Agreement shall be deemed or construed, either by the Parties hereto or by any third
party, to create the relationship of principal and agent or to create any partnership, joint venture
or other relationship between the Parties. Nothing in this Agreement shall create or constitute an
easement in the Healthcare Parceland this Agreement shall be considered nothing other than a
license as set forth herein.
23.Notices. All notices required by this Agreement shall be provided in writing and
shall be deemed received when (a) personally served, (b) two (2) days after being sent by
registered or certified mail, return receipt requested, postage or charges prepaid, or by recognized
overnight carrier, or one (1) day after receipt by facsimile machine or electronic mail, with
transmission and receipt acknowledged in writingby facsimile, email or any other method
permitted under this Section, and addressed to the Party forwhom intended at such Party's
address herein specified, or at such other address as such Party may have substituted therefore by
proper notice to the other.
If to Developer:
1C Tustin Legacy, LLC
915 Wilshire Blvd., Suite 2200
Los Angeles, CA 90017
Attn: John Mehigan
Fax: (213) 624-2279
Email: jmehigan@regencycenters.com
With a copy to:
Allen Matkins Leck Gamble Mallory & Natsis LLP
1900 Main Street, 5th Floor
Irvine, California 92614-7321
Attn: Drew Emmel, Esq.
Fax: (949) 553-8354
Email: demmel@allenmatkins.com
If to the City:
City of Tustin
Attn: Jeffrey C. Parker, City Manager
300 Centennial Way
Tustin, CA 92780
Fax: (714)838-1602
Email: jparker@tustinca.org
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With a copy to:
Woodruff Spradlin & Smart, APC
Attn: David Kendig, Esq., City Attorney
555 Anton Boulevard, #1200
Costa Mesa, CA 92626
Fax: (714) 415-1183
Email:dkendig@wss-law.com
and:
Armbruster Goldsmith & Delvac LLP
Attn: Amy E. Freilich, Esq., Special Counsel
11611 San Vicente Blvd., Suite 900
Los Angeles, CA 90049
Fax:(310) 209-8801
Email: amy@agd-landuse.com
24.No Assignment. This Agreement shallnot be assigned by Developer except with
the prior written consent of the City in its sole discretion.
25.Exhibits Incorporated. Each exhibit attached and referred to in this Agreement is
hereby incorporated by reference as though set forth in full where referred to herein.
26.Severability. If any provision of this Agreement or application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement (including the application of such provision to persons or circumstances other than
those to which it is held invalid or unenforceable) shall not be affected thereby, and each
provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
27.Entire Agreement. This Agreement and the DDA contain the entire agreement of
the Parties with respect to the subject matter and no amendment, change, modification or
supplement to this Agreement shall be valid and binding on any of the Parties unless it is
represented in writing and signed by each of the Parties hereto.
28.Counterparts. This Agreement and any amendments hereto may be executed in
counterparts, each of which is deemed an original and all of which, when taken together, shall
constitute one and the same instrument.
29.Further Assurances. Each of the Parties hereto shall execute and deliver at their
own cost and expense, any and all additional papers, documents, or instruments, and shall do any
and all acts and things reasonably necessary or appropriate in connection with the performance
of its obligations hereunder in order to carry out the intents and purposes of this Agreement.
30.Authority. Each Party warrants that it has the power and authority to enter into
this Agreement and to perform its obligations hereunder. Each individual who signs this
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Agreement on behalf of an entity warrants that he/she has been duly authorized to doso and to
bind such entity.
Non-Defaulting Party
31.Default Procedure.The non-defaulting party (the “”) at its
discretion may elect to declare a default under this Agreement in accordance with the procedures
Defaulting Party
hereinafter set forth for any failure or breach of any other party (the “”) 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) Business Days after the date of such noticeor,
with respect to a default which by its nature cannot be cured within such ten (10)-Business Day
period, then the Defaulting Party shall be deemed to be "default" of its obligations hereunder if
the Defaulting Party hasfailed to commence to cure within such ten (10)-Business Day period
and thereafter diligently pursue to completion.
32.Limitation on Damages. Developer acknowledges that the City would not have
entered into this Agreement if the City could become liable for damages under or with respect to
this Agreement. Consequently, and notwithstanding any other provision of this Agreement,
except for the payment of attorneys'fees in accordance with Section 21of this Agreement and
court costs, the City shall not be liable in damages under this Agreement to Developer and
Developer, on behalf of itself and each Developer Representative hereby waives any and all
rights to claim damages of any other kind or nature from the City including without limitation,
Claims for lostprofits, consequential, incidental, indirect, special, collateral, exemplary or
punitive damages. Except as otherwise set forth in this Agreement, in no event shall Developer
be liable to the City for any lost profits, consequential, incidental, indirect, special, collateral,
exemplary or punitive damages in connection with this Agreement or the Minimum Horizontal
Improvements.
\[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK.
SIGNATURES FOLLOW.\]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year
first written above.
DEVELOPER:
1C TUSTIN LEGACY, LLC,
a Delaware limited liability company
By:Regency Centers, L.P.,
Delaware limited partnership,
Its Sole Member
By:Regency Centers Corporation,
aFlorida corporation,
Its General Partner
By: ________________________
John Mehigan,
Vice President
CITY OF TUSTIN:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:__________________________
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:___________________________
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
SpecialTustin Counsel
By:__________________________
Amy E. Freilich
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EXHIBIT A
“
LEGAL DESCRIPTION OF HEALTHCARE PARCEL
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EXHIBIT B
“”
DEPICTION OF HEALTHCARE PARCEL
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EXHIBIT C
“”
RULES AND REGULATIONS
1.Developer shall comply with all requirements of the Occupational Safety and
Health Administration.
2.Trash disposal shall comply with CR&R Incorporated and City of Tustin
standards.
3.Developer shall be required to have and maintain a valid City of Tustin Business
License.
4.All requirements of the City's Noise Ordinance (Chapter 6 of the City Code) shall
be met at all times.
5.Developer may not access any other areas on the adjacent Tustin Legacy
properties and may not enter any of the buildings on the Tustin Legacy site for any purpose.
6.Developer shall ensure controlled access to the Healthcare Parcelis maintained.
Developer shall ensure the access gatesremain closed all times while not in use. Developer
understands and agrees that this access may be disturbed in the future. The City makes no
guarantees that there will be continuing access that can be provided at the current location.
7.Exceptfor ingress and egress, Developer must keep the vehicle gates and adjacent
roadway free and clear at all times. Developer shall install a temporary (mobile) chain-link fence
around the Healthcare Parcelat its sole cost and expense subject to inspection and approval of
the installation by the City. Developershall remove said installation upon termination of this
Agreement. The vehicle gate shall be installed to open into the parking lot so as not open
outward and obstruct the internal circulation access route between the Healthcare Parceland
Tustin Ranch Road.
8.Security and access to Tustin Legacy is currently performed by the City of Tustin
Police Department. The City of Tustin is not responsible for providing security services for
Developer, Developer's equipment or property, or the Healthcare Parcelduring the license
period. Access to the Healthcare Parcelshall be permitted only during daylight hours only from
7:00 a.m. until 6:00 p.m., Monday through Friday, 9:00 a.m. until 5:00 p.m. on Saturdays.
Developer is responsible for securing the Healthcare Parcel; includingwithout limitationkeeping
the vehicle gate closed and locked during hours when use of the Healthcare Parcelis not
permitted.
9.Hours of operation shall be according to Tustin City Code Section 4616 which
limits construction activities to between 7:00 a.m. and 6:00 p.m. Monday through Friday, and
between 9:00 a.m. and 5:00 p.m. on Saturdays, and at no time on Sundays unless otherwise
approved by the City. Construction activities are prohibited on New Year's Day, President's
Day, Memorial Day, Independence Day, Labor Day, Veterans'Day, Thanksgiving Day, and
Christmas Day.
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10.This development shall comply with all provisions of the City of Tustin Water
Quality Ordinance and all Federal, State, and Regional Water Quality Control Board rules and
regulations, including keeping the Healthcare Parcel, and public roadways, including but not
limited to Tustin Ranch Road and Warner Avenue, clear of any dirt or mud tracked out of the
parking area.
11.In addition to access required under other provisions of this Agreement, the City,
and the Department of Navy and their representatives shall be allowed access to the Healthcare
Parcelat all times throughout the term of this Agreement, for any purpose without prior written
notice to Developer. Developer shall ensure that the City has a current roster of on-call
personnel and their phone numbers. Developer shall have no claim against the City for exercise
of their rights of access hereunder.
12.Developer shall not make or permit to be made any use of the Healthcare Parcel
or any part thereof (i) which would violate any of the covenants, agreements, terms, provisions,
and conditions of this Agreement; or (ii) which would directly or indirectly violate any federal,
state or local law, ordinance, rule or governmental regulation; or (iii) which will suffer or permit
the Healthcare Parcelor any part thereof to be used in any manner or permit anything to be
brought onto or kept thereon which, in the reasonable judgment of City, shall in any way impair
or tend to impair the character, reputation or appearance of the Healthcare Parcelor which will
impair or interfere with or tend to impair or interfere with any of the services performed by City.
13.Developer shall not display, inscribe, print, maintain or affix on any place in or
about the Healthcare Parcelany sign, notice, legend, direction, figure or advertisement, except as
may be approved by City in writing.
14.Developer shall comply with all laws, enactments, rules, ordinances and
regulations of all governmental authorities relating or applicable to Developer's occupancy of the
Healthcare Parcelgoverning use of the Healthcare Parcel. Developer shall obtain all permits and
licenses required by the City of Tustin and shall pay all required fees.
15.Developer's work on the Healthcare Parcelwill be coordinated and performed
with the work contemplated in and in accordance with the Soil License Agreement.
16.Developer shall allow no dangerous or hazardous condition to be created or
caused on the Healthcare Parcel.
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ATTACHMENT 28
APPLICABLE APPROVALS
1. Development Agreement 2015-001
2. Specific Plan Amendment 2015-002: To amend the Specific Plan to allow Acute
Care/Rehabilitation facilities and similar uses as a conditionally permitted medical office use and
to increase th
building (Building M) and to 54 feet for the medical office building (Building K).
3. Concept Plan 2015-003
4. Design Review 2015-014
5. Tentative Parcel Map 2015-127: This Tentative Parcel Map is a subdivision of the approximately
20 acre site into 13 numbered lots and four lettered lots for the development of a multiple-use
commercial center. Reciprocal access easements are identified for shared access among the lots of
the commercial center.
6. Conditional Use Permit 2015-11: A Conditional Use Permit to allow development of a 75,000
square foot/80 bed acute care/rehabilitation facility/rehabilitation/convalescent care facility
(Building M) subject to approval of the Specific Plan Amendment 2015-00X, which adds this use
to the list of conditionally permitted office uses and with parking to meet Tustin Code requirements
for hospitals.
7. Conditional Use Permit 2015-12: A Conditional Use Permit to allow development of a drive-thru
associated with a 14,576 square foot drug store/pharmacy (Building D).
8. Conditional Use Permit 2015-13: A Conditional Use Permit to allow development of a drive-thru
associated with a 3,300 square foot restaurant pad (Building E).
9. Conditional Use Permit 2015-14: A Conditional Use Permit to allow development of a drive-thru
associated with a 3,324 square foot band/financial institution (Building H).
10. Conditional Use Permit 2015-15: A Conditional Use Permit to allow development of a drive-thru
associated with a 4,500 square foot restaurant, as an alternate use for Building I.
11. Conditional Use Permit 2015-16: A Conditional Use Permit related to a master sign program for
the commercial center.
12. Conditional Use Permit 2015-17: A Conditional Use Permit to allow development of an 8,000
square foot childcare center/school with 10,968 square foot outdoor playground (Building A).
13. General Plan Conformity to determine that the location, purpose, and extent of the proposed
disposition of an approximately 22.7-acre site within Neighborhood B of the MCAS Tustin Specific
Plan for the development of 248,292 square feet of a neighborhood commercial center is in
conformance with the approved General Plan.
14. Conditional Use Permit 2015-23 for the establishment of joint use parking for Parcels 10, 11, 12
and 13 (15000, 15020, 15100 and 15120 Kensington Park Drive).
ATTACHMENT 28
Tustin/1C Tustin Legacy LLC Disposition and Development Agt
City of Tustin/Regency Centers DDA
Tustin Regency_Center_DDA 9-29-15 (agd).docx
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September 29, 2015
C-201
LUISGOMEZ@REGENCYCENTERS.COM
CONCEPTUAL GRADING SHEET
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
H
T
R
O
N
ATTACHMENT 29 - ON-LOT IMPROVEMENTS
SECTION A-A
1 of 2
CONSTRUCTION NOTES
BENCHMARK
LEGEND
C-202
LUISGOMEZ@REGENCYCENTERS.COM
CONCEPTUAL UTILITY PLAN
T 213-553-2200
LOS ANGELES, CA 90017
915 WILSHIRE BOULEVARD, SUITE 2200
2015-127
REGENCY CENTERS
PREPARED FOR
TENTATIVE PARCEL MAP
TUSTIN LEGACY
GENERAL NOTES:
ATTACHMENT 29 - ON-LOT IMPROVEMENTS
STORM DRAIN
2 of 2
SEWER CONSTRUCTION NOTES
DOMESTIC WATER
FIRE WATER
LEGEND