HomeMy WebLinkAboutORD 1461 (2015) ORDINANCE NO. 1461
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, APPROVING DEVELOPMENT AGREEMENT (DA)
2015-001 BETWEEN THE CITY OF TUSTIN AND 1C TUSTIN
LEGACY LLC (REGENCY CENTERS) TO FACILITATE THE
DEVELOPMENT OF A 248,292 SQUARE-FOOT
COMMERCIAL CENTER WITHIN PLANNNG AREA 7 OF
NEIGHBORHOOD B OF THE MCAS TUSTIN SPECIFIC PLAN
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. That proper application has been submitted by 1C Tustin Legacy LLC (Regency
Centers) for the development of a 248,292 square-foot commercial center with
multiple uses on approximately 22.7-acre site currently owned by the City of
Tustin within Planning Area 7of the MCAS Tustin Specific plan.
B. That MCAS Tustin Specific Plan Section 4.2.9 requires all private development
at MCAS Tustin to obtain a Development Agreement in accordance with Section
' 65864 et seq. of the Government Code and Sections 9600 to 9619 of the Tustin
City Code. In compliance with Tustin City Code Section 9611, the Tustin Planning
Commission must make a recommendation on the proposed Development
Agreement to the City Council.
C. That a public hearing was duly called, noticed, and held on said application
on August 25, 2015, by the Planning Commission. The Planning Commission
adopted Resolution No. 4285 recommending that the City Council adopt
Ordinance No. 1461.
D. That a public hearing was duly called, noticed, and held on said application
on September 15, 2015, by the City Council and the item was continued to
the October 20, 2015, City Council meeting.
E. On January 16, 2001, the City of Tustin certified the Program Final
Environmental Impact Statement/Environmental Impact Report (FEIS/EIR) for
the reuse and disposal of MCAS Tustin. On December 6, 2004, the City Council
adopted Resolution No. 04-76 approving a Supplement to the FEIS/EIR for the
extension of Tustin Ranch Road between Walnut Avenue and the future
alignment of Valencia North Loop Road. On April 3, 2006, the City Council
adopted Resolution No. 06-43 approving an Addendum to the FEIS/EIR. And,
on May, 13, 2013, the City Council adopted Resolution No. 13-32 approving
a second Addendum to the FEIS/EIR. The FEIS/EIR along with its Addenda
and Supplement is a program EIR under the California Environmental Quality
Ordinance No. 1461
Page 1 of 4
Act(CEQA). The FEIS/EIR, Addenda and Supplement considered the potential
environmental impacts associated with development on the former Marine
Corps Air Station, Tustin.
An Environmental Checklist (Resolution No. 15-57) has been prepared and
concluded that this action does not result in any new significant environmental
impacts or a substantial increase in the severity of any previously identified
significant impacts in the FEIS/EIR. Moreover, no new information of
substantial importance has surfaced since certification of the FEIS/EIR.
F. That the Development Agreement can be supported by the following findings:
1. The project is consistent with the objectives, policies, general land uses
and programs specified in the General Plan and the MCAS Tustin Specific
Plan in that retail, service retail and office uses are permitted uses within
Planning Area 7 of Neighborhood B.
2. The project is compatible with the uses authorized in the district in which
the real property is located (Planning Areas 7) in that similar and
compatible uses are envisioned within the close proximity of the project
site.
3. The project is in conformity with the public necessity, public convenience,
general welfare, and good land use practices in that the project would
provide a neighborhood commercial development for new and existing
Tustin residents thereby providing additional convenience and choices for
shopping, dining, childcare, and medical services.
4. The project will not be detrimental to the health, safety, and general
welfare. The project will comply with the MCAS Tustin Specific Plan,
Tustin City Code, and other regulations to ensure that the project will not
be detrimental in any way.
5. The project will not adversely affect the orderly development of property
in that the proposed project is orderly, well designed, and equipped with
necessary infrastructure and amenities to support existing and future
residents and businesses in Tustin Legacy.
6. The project will have a positive fiscal impact on the City in that the
provisions of the proposed Development Agreement and conditions of
approval will ensure that the project will have a positive fiscal impact on
the City.
SECTION 2. The City Council hereby approves Development Agreement 2015-001
attached hereto as Exhibit A and subject to final approval of the City
Attorney.
Ordinance No. 1461
Page 2 of 4
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or
portion of this ordinance is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council of the City of Tustin hereby declares that it
would have adopted this ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof irrespective of the fact that
any one or more sections, subsections, sentences, clauses, phrases, or
portions be declared invalid or unconstitutional.
PASSED AND ADOPTED at a regular meeting of the City Council for the City
of Tustin on this 3rd day of November, 2015.
-•(' A j-4 3:44 7 \
C ARLES E. PUCKETT,
Mayor
ATTEST:
ER CA N. RABE,
City Clerk
PER ST• FORM:
r ,DAVID E. KENDIG,
City Attorney
1
Ordinance No. 1461
Page 3 of 4
ORDINANCE CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN
ORDINANCE NO. 1461
I, Erica N. Rabe, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City
Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1461
was duly and regularly introduced at a regular meeting of the Tustin City Council, held
on the 20th day of October, 2015 and was given its second reading, passed, and
adopted at a regular meeting of the City Council held on the 3rd day of November, 2015
by the following vote:
COUNCILPERSONS AYES: Puckett, Gomez, Murray, Bernstein (4)
COUNCILPERSONS NOES: None (0)
COUNCILPERSONS ABSTAINED: Nielsen (1)
COUNCILPERSONS ABSENT: None (0)
ERICA N. RABE,
City Clerk
Ordinance No. 1461
Page 4 of 4
1
' Exhibit A to Ordinance No. 1461
Development Agreement
1
Ordinance No. 1461 - Exhibit A
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT BE RECORDED
AND BE EXEMPT FROM PAYMENT OF A
RECORDING FEE PER GOVERNMENT
CODE 6103 AND 27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin,California 92780
Attn:City Clerk
Space Above This Line Reserved for Recorder's Use Only
TUSTIN LEGACY DEVELOPMENT AGREEMENT
THIS TUSTIN LEGACY DEVELOPMENT AGREEMENT("Agreement")is entered
into effective as of the Effective Date(as defined below)by and between the CITY OF TUSTIN,a
California municipal corporation("City"),and 1C TUSTIN LEGACY,LLC,a Delaware limited
liability company("Developer"). City and Developer are collectively referred to herein as the
"Parties"and individually as a "Party".
RECITALS
A. To strengthen the public planning process,encourage private participation in
comprehensive planning,and reduce the economic risk of development,the Legislature of the State
of California adopted the"Development Agreement Statute," Sections 65864,et seq., of the
Government Code. The Development Agreement Statute authorizes City to enter into an
agreement with any person having a legal or equitable interest in real property and to provide for
development of such property and to establish certain development rights therein. In addition,
Section 4.2.9 of the Specific Plan (as defined below)for MCAS Tustin states: "prior to issuance of
any permits or approval of any entitlements within the Specific Plan area,all private development
shall first obtain a Development Agreement in accordance with Section 65864 et seq. of the
Government Code and Sections 9600 to 9619 of the Tustin City Code." Pursuant to the
authorization set forth in the Development Agreement Statute,City has enacted procedures for
entering into development agreements which are contained in Tustin City Code Sections 9600 to
9619.
B. City and Developer intend, concurrently with the execution of this Agreement,to enter
into the Tustin Legacy Disposition and Development Agreement for Disposition Parcel IC,as the same
may be amended from time to time("DDA")pursuant to which City shall agree to sell,and Developer
shall agree to buy and develop,certain real property,all as more specifically set forth in the DDA.
C. Pursuant to the DDA, Developer has an equitable and/or legal interest in the Property
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Ordinance No. 1461 - Exhibit A
(as defined below) in that it has the contractual right to purchase the Property from City for
development of the Project(as defined below).
D. Pursuant to Government Code Section 65864,the State legislature has found and
determined that:
"(a) The lack of certainty in the approval of development projects can result in a
waste of resources, escalate the cost of. . .development to the consumer, and discourage investment in
and commitment to comprehensive planning which would make maximum efficient utilization of
resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval of the
project, the applicant may proceed with the project in accordance with existing policies,rules and
regulations,and subject to conditions of approval, will strengthen the public planning process,
encourage private participation in comprehensive planning, and reduce the economic costs of
development."
In accordance with the legislative findings set forth in Government Code Section 65864,City
wishes to attain certain public objectives that will be furthered by this Agreement. This Agreement
will provide for the orderly implementation of the General Plan of the City("General Plan"),and the
phased development and completion of the Project in accordance with the DDA and the Specific Plan
(as defined below). This Agreement will further a comprehensive planning objective contained within
the City's General Plan, which is:
"To promote an economically balanced community with complimentary and
111 buffered land uses to include industrial,commercial, professional,multi-family and single-
family development."
E. The DDA.the Specific Plan and the development under the DDA and the Specific Plan
require a substantial early investment of money and planning and design effort by Developer. Without
the protection provided by this Agreement, uncertainty that the Project may be completed in its entirety
could result in a waste of public resources.escalate the cost of public improvements,and discourage
Developer's participation in those certain public improvements specified in the DDA and the Specific
Plan. Developer's participation in the implementation of the DDA and the Specific Plan will result in a
number of public benefits. These benefits require the cooperation and participation of City and
Developer and could not be secured without mutual cooperation in and commitment to the
comprehensive planning effort that has resulted in the DDA and the Specific Plan.
F. Developer wishes to avoid certain development risks and uncertainties that would, in the
absence of this Agreement, deter and discourage Developer from making a commitment to implement
the DDA and the Specific Plan. These are as follows:
1. It is generally the law in California that,absent extraordinary circumstances or
the approval of a vesting subdivision map, an owner of the land does not obtain a vested right to
improve land until the issuance ofa building permit for the improvements and commencement of
substantial construction pursuant to that permit. The result is a disincentive for landowners to invest
monies in the early completion,of major infrastructure and other public improvements as part of any
project or in early comprehensive planning and design studies.
2. Development under the DDA and the Specific Plan requires a substantial
early investment of money and planning and design effort by Developer. Uncertainty about City's
R<gency_Tuum_Dc tkymenl Apttmeni_10.13-2015-ad -?-
Ordinance No. 1461 - Exhibit A
land use policies,rules and regulations could result in a waste of private resources,escalate the cost
of certain public improvements,and escalate costs of proposed commercial land uses.
G. The following assurances are of vital concern to Developer to offset or remove the
disincentives and uncertainties set forth in Paragraph F above:
1. Assurance to Developer that, in return for Developer's commitment to the
development of the Property that is contained in the DDA,any approved entitlements,and the Specific
Plan,City will in turn remain committed to the Existing Entitlement Approvals(as defined below);
2. Assurances to Developer that as Developer becomes obligated for the costs
of designing and constructing the public and private improvements included in the DDA and the
Specific Plan,and makes dedications,Developer will become entitled to rely upon the Vested
Rights(as defined below)in the development of the Property;and
3. Assurances to Developer that in City's administration of the Existing
Entitlement Approvals,Developer will be allowed,consistent with the DDA and the Specific Plan,to
develop the commercial land uses and intensities identified in the DDA and the Specific Plan.These
assurances provide for cooperation and participation of City and Developer and could not be secured
without mutual cooperation in and commitment to the comprehensive planning effort that has resulted
in the DDA and the Specific Plan.
H. The Development Agreement Statute authorizes local agencies to enter into binding
development agreements with persons having legal or equitable interests in real property for the
development of such property.City wishes to enter into a development agreement with Developer to
secure the Public Benefits(as defined below)and additional consideration described in this
Agreement, and Developer wishes to enter into a development agreement with City to avoid the
development risks and uncertainties and to obtain the assurances described above.
1. This Agreement is intended to be,and shall be construed as, a development
agreement within the meaning of the Development Agreement Statute. This Agreement is intended
to augment and further the purposes and intent of the Parties in the implementation of the DDA and
the Specific Plan. This Agreement,as a device for the implementation of the Existing Entitlement
Approvals and the Specific Plan, will eliminate uncertainty in planning for and secure the orderly
development of the Project,ensure a desirable and functional community environment, provide
effective and efficient development of public facilities, infrastructure,and services appropriate for the
development of the Project,assure attainment of the maximum effective utilization of resources
within the City,and provide other significant public benefits to City and its residents by otherwise
achieving the goals and purposes of the Development Agreement Statute. In exchange for these
benefits to City, Developer desires to receive the assurance that it may proceed with development of
the Project in accordance with the terms and conditions of this Agreement and the Applicable Rules,
all as more particularly set forth herein.
J. City has determined that this Agreement and the Project are consistent with the
General Plan and the Specific Plan and that this Agreement complies with the findings established
by Tustin City Code Section 9611, in that the Agreement:
I. Is consistent with the objectives, policies,general land uses and programs
specified in the General Plan and the Specific Plan.
Regency_Tumn_-Develepmenl_Apecmenl_10-17-2015-ord -3•
Ordinance No. 1461 - Exhibit A
2. Is compatible with the uses authorized in the district in which the real
property is located (Planning Area 7 of MCAS Tustin Specific Plan). Note: the proposed
commercial retail and medical office project complies with the uses authorized by the Specific
Plan.
3. Is in conformity with the public necessity,public convenience, general
welfare,and good land use practices. Note: the Project will enhance community development,
provide neighborhood commercial uses within walking distance of existing and planned housing,
support economic development and activity in the vicinity of the Project.
4. Will not be detrimental to the health,safety,and general welfare. Note:
compliance with the Specific Plan,Tustin City Code,and other regulations will ensure that the
Project will not be detrimental in any way.
5. Will not adversely affect the orderly development of property. Note: the
proposed Project is orderly and well designed.
6. Will have a positive fiscal impact on the City. Note: the provisions of the
DDA will ensure that the Project will have a positive fiscal impact on the City.
K. On August 25,2015,the Planning Commission held a public hearing on this
Agreement,made certain findings and determinations with respect thereto,and recommended to the
City Council of City that this Agreement be approved. On October 20,2015,the City Council held
a public hearing on this Agreement,considered the recommendations of the Planning Commission,
' introduced and had first ready of Ordinance No.1461 with the second reading and adoption at the
November 3,2015,City Council meeting, approving this Agreement and authorizing its execution.
AGREEMENT
NOW,THEREFORE, in consideration of the above recitals,which are incorporated herein
by this reference,and for good and valuable consideration,the receipt and sufficiency of which is
hereby acknowledged,the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1. Definitions. The following terms when used in this Agreement shall be defined as
follows:
Any capitalized word or term used in this Agreement shall have the definition or meaning
ascribed to such word or term as provided in the DDA,unless the word or term is expressly provided in
this Section 1.1 of this Agreement, in which event such word or term shall have the definition or
meaning as provided herein. All capitalized terms not specifically defined in the DDA or this
Agreement shall be interpreted by the Director of Community Development of the City.
1.1.1 "Action" is defined in Section 8.10.
1.1.2 "AD/CFD" is defined in Section 3.1.1.
1.1.3 "Administrative Amendment"is defined in Section 2.6.2.
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Ordinance No. 1461 - Exhibit A
1.1.4 "Agreement" is defined in the introductory paragraph.
1.I.5 "Applicable Rules" means(a)the Existing Land Use Regulations of the
City,(b)the Future Rules that are not in conflict(as defined in Section 3.6.2)with the Vested
Rights;(c)the Future Rules made applicable to the Project and/or the Property pursuant to Section
3.10;(d)the Existing Entitlement Approvals,and(e)the Subsequent Entitlement Approvals to
which the Project and/or the Property or development and use thereof are made subject to pursuant
to the terms of this Agreement.
1.1.6 "Applications" is defined in Section 3.11.2.
1.1.7 "Certificate" is defined in Section 4.4.
1.1.8 "City"is defined in the introductory paragraph.
1.1.9 "Claiming Party" is defined in Section 8.11.3.
1.1.10 "Costs" is defined in Section 8.10.
1.1.11 "Damages" is defined in Section 5.3.
1.1.12 "DDA" is defined in the Recital B.
1.1.13 "Decision" is defined in Section 8.10.
1.1.14 "Defaulting Party" is defined in Section 5.1.
1,1.15 "Developer" is defined in the introductory paragraph and includes each and
every Successor In Interest of Developer.
1.1.16 "Development Agreement Statute" is defined in Recital A.
1.1.17 "Development Permits" means all ministerial permits,certificates and
approvals which may be required by City or other governmental authority for the development and
construction of the improvements for the Project, in each case in accordance with this Agreement,
the DDA, the Applicable Rules and any required environmental mitigation, including without
limitation any engineering permits,grading permits, foundation permits,construction permits and
building permits.
I.1.1 8 "Effective Date" means the date the City's ordinance approving this
Agreement becomes effective and, if not otherwise specified in this Agreement, shall mean the date
upon which this Agreement is recorded by City in the official records of the Orange County
Recorder.
1.1.19 "EIR" means the Final Environmental Impact Statement/Final Environmental
Impact Report for the Disposal and Reuse of MCAS Tustin(Final EIS/EIR)and Mitigation '
Monitoring and Reporting Program for the Final EIS/EIR adopted by the City on January 16,2001 as
subsequently modified and supplemented, including by one or more supplements and addenda to the
Final EIR/EIS approved by the City.
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Ordinance No. 1461 - Exhibit A
1.1.20 "Entitlement Approvals" means all discretionary land use approvals and
entitlements including,without limitation, Specific Plan amendments, tentative and final parcel and
tract maps,Conditional Use Permits,the Concept Plans and Design Review approvals as may be
applicable for proposed specific uses(s) in connection with development of the Property and all
conditions of approval legally required by City and any other Governmental Authority as a condition
to subdivision of the Property, development of the Property, and construction of the improvements in
accordance with this Agreement. Entitlement Approvals shall be comprised of the Existing
Entitlement Approvals and the Subsequent Entitlement Approvals.
•
1.1.21 "Existing Entitlement Approvals"means all Entitlement Approvals approved
or issued prior to the Effective Date and including the approvals listed on Exhibit"D" to this
Agreement,which are a matter of public record on the Effective Date:
1.1.22 "Existing Land Use Regulations"means the Land Use Regulations in
effect on the Effective Date, including without limitation,the General Plan,the Tustin City Code,
the Specific Plan, and all other ordinances, resolutions,rules, and regulations of the City
governing development and use of the Property in effect as of the Effective Date.
1.1.23 "Force Majeure Delay" is defined in Section 8.11.1 as limited by Section 8.11.2.
1.1.24 "Future Rules" is defined in Section 3.6.2.
1.1.25 "General Plan" is defined in Recital D.
1.1.26 "Land Use Regulations"means all laws, statutes,ordinances, resolutions,
codes,orders,rules, regulations and official policies of City governing the development and use of
land, including, without limitation, the permitted uses of the Property,the density or intensity of use,
subdivision requirements, timing and phasing of development, the maximum height and size of
proposed buildings, and the provisions for reservation or dedication of land for public purposes.
1.1.27 "Non-Defaulting Party" is defined in Section 5.1.
1.1.28 "Party"and"Parties"are defined in the introductory paragraph.
1.1.29 "Prevailing Party" is defined in Section 8.10.
1.1.30 "Project"means the development of the Property contemplated by the
Entitlement Approvals as such Entitlement Approvals may be further defined,enhanced or
modified pursuant to the provisions of this Agreement.
1.1.31 "Project Fair Share Contribution" is defined in Section 3.13.3.
1.1.32 "Property" means the real property described on Exhibit "A"and shown on
Exhibit "B"to this Agreement.
1.1.33 "Public Benefits"means those public benefits to be provided by the
Developer and the Project as described in Section 3.1 of this Agreement that comprise
enforceable additional consideration to City for this Agreement.
1.1.34 "Reservation of Authority"means the rights and authority excepted from the
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Ordinance No. 1461 - Exhibit A
assurances and rights provided to Developer under this Agreement and reserved to City under
Section 3.10.
1.1.35 "Second Party" is defined in Section 8.11.3.
1.1.36 "Specific Plan" means the City's MCAS Tustin Specific Plan/Reuse Plan,as
amended,and as the same maybe further amended from time to time.
1.1.37 "State" means the State of California.
1.1.38 "Subsequent Entitlement Approvals"means Entitlement Approvals,if any,
approved by City subsequent to the Effective Date in connection with development of the Property.
1.1.39 "Successors In Interest" means any person having a legal or equitable
interest in the whole of the Property,or any portion thereof.
1.1.40 "Tax A" is defined in Section 3.1.1(a).
1.1.41 "Tax B" is defined in Section 3.1.1(b).
1.1.42 "Tustin City Code" means the municipal code of the City of Tustin.
1.1.43 "Vested Rights"means the rights granted to Developer pursuant to this
Agreement upon its acquisition of the Property to develop the Property in accordance with,and
subject to the terms and conditions of this Agreement,the Existing Entitlement Approvals and any
Subsequent Entitlement Approvals approved by City and made applicable to the Property pursuant
to the terms of this Agreement.
1.2. Exhibits. The following documents are attached to, and by this reference made a part
of,this Agreement:
Exhibit "A"—Legal Description of the Property
Exhibit"B"—Map showing Property and its location
Exhibit "C"—Public Benefit Improvements
Exhibit "D"—Existing Entitlement Approvals
2. GENERAL PROVISIONS.
2.1. Binding Effect of Agreement.The Property is hereby made subject to this
Agreement. Development of the Property is hereby authorized and shall be carried out only in
accordance with the terms of this Agreement.
2.2. Interests in Property. City and Developer agree that Developer's right to acquire the
Property pursuant to the DDA creates a sufficient legal and/or equitable interest in order to enter into
this Agreement. If Developer fails to acquire any portion of the Property,then this Agreement shall
automatically no longer be effective as to such portion of the Property concurrently with the date upon
which Developer's rights to acquire such portion of the Property expire.
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Ordinance No. 1461 - Exhibit A
P2.3. Term.The term of this Agreement shall commence on the Effective Date and shall
continue for a term of five(5)years unless this term is terminated,modified,or extended by
circumstances set forth in this Agreement or by mutual written consent of the Parties.Notwithstanding
the foregoing,the term of this Agreement shall be automatically extended during the term of any Force
Majeure Delay,provided that the maximum term of this Agreement as extended by Force Majeure
Delay shall be six(6)years.
2.4. Assignment.
2.4.1 Assignment and Notification.The rights,interests and obligations conveyed
and provided herein to Developer benefit and are appurtenant to the Property. Developer has the
right to sell,assign and transfer any and all of its rights and interests and to delegate any and all of
its duties and obligations hereunder;provided,however,that such rights and interests may not be
transferred or assigned except in strict compliance with the provisions of Section 2.2 of the DDA,
which are incorporated herein by this reference as though fully set forth in this Agreement,and the
following conditions:
(a) Developer secures the written consent of City if required pursuant to
Section 2.2 of the DDA;
(b) Said rights and interests may be transferred or assigned only as an
incident of the transfer or assignment of the portion of the Property to which they relate,including
any transfer or assignment pursuant to a foreclosure of a Mortgage or a deed in lieu of a foreclosure;
' (c) Prior to assignment or transfer, Developer shall notify City in writing of
such assignment or transfer,the portions of the Property to which the assignment or transfer will be
appurtenant,and the name and address(for purposes of notices hereunder)of the transferee or assignee,
together with the corresponding development pads which are proposed to be included within such
transfer and Developer and the assignee or transferee shall notify City whether the assignee or transferee
will assume any of Developer's obligations under this Agreement and which of Developers obligations
will be assumed;and
(d) The assignee or transferee shall have entered into an Assignment
Agreement if required by the DDA.
Any attempt to assign or transfer any right or interest in this Agreement except in strict
compliance with this Section 2.4 shall be null and void and of no force and effect.
2.4.2 Subject to Terms of Agreement. Following an assignment or transfer of any •
of the rights and interests of Developer set forth in this Agreement in accordance with Section 2.4.1,
the assignee's exercise,use,and enjoyment of the Property shall be subject to the terms of this
Agreement to the same extent as if the assignee or transferee were Developer.
2.4.3 Release of Developer Upon Transfer. Notwithstanding the assignment or
transfer of portions or all of the Property or rights or interests under this Agreement, Developer shall
continue to be obligated under this Agreement unless released or partially released by City with
respect to Developer's obligations and the other duties and obligations of Developer under this
Agreement,pursuant to this paragraph, which release or partial release shall apply only with respect
111
to obligations of Developer following the effective date of the assignment and shall be provided by
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Ordinance No. 1461 - Exhibit A
City upon the full satisfaction by Developer of each and every one of the following conditions:
(a) Developer is not then in default under this Agreement;
(b) City has consented to the assignment or transfer if required under
Section 2.4.1;
(c) The assignment or transfer is not a Transfer to an Affiliate or other
Transfer or Transfer of Control for which the DDA expressly provides that Developer shall not be
released from its obligations under the DDA;
(d) The assignment or transfer is an assignment of all of Developer's
interest in the Property,the DDA and this Agreement;
(e) An assignee or transferee has assumed all duties and obligations as to
which Developer is requesting to be released pursuant to an Assignment and Assumption Agreement
approved by City; and
(f) The assignee or transferee is financially able to assume the
obligations proposed for assignment and has demonstrated to the reasonable satisfaction of City that
adequate resources have been committed to the full performance of such obligations.
2.5. Provenly to Continue to be Subject to This Agreement. In the absence of specific
written agreement by City, pursuant to which City expressly releases the Developer under the
applicable provisions of the DDA and this Agreement, no Transfer shall constitute a release of
Developer from any of its obligations under this Agreement and the Developer shall retain such
obligations and remain jointly and severally liable for such obligations. City shall cooperate with
Developer, at no cost to City, in executing in recordable form any document that City has approved to
confirm the termination of this Agreement as to any such portion of the Property.
2.6. Amendment or Cancellation of Agreement.
2.6.1 Generally. This Agreement may be amended or cancelled in whole or in part
only in the manner provided for in Government Code Sections 65865.1 or 65868 and Tustin City Code
Section 9615.This provision shall not limit any remedy of City or Developer as provided by this
Agreement. Either Party or Successor in Interest may propose an amendment to or cancellation, in
whole or in part,of this Agreement. Any amendment or cancellation shall be by mutual consent of the
Parties or their Successors in Interest except as provided otherwise in this Agreement, in Government
Code Section 65865.1,or in the Tustin City Code.
2.6.2 Administrative Amendments. Any amendment to this Agreement which does
not relate to the Term of this Agreement,permitted uses of the Project,provisions for the reservation
or dedication of land or the conditions,terms, restrictions and requirements relating to Subsequent
Entitlement Approvals of City,revisions to Public Benefits(other than to the time for performance of
such Public Benefits)or monetary exactions of Developer,shall be considered an "Administrative
Amendment". The City Manager or assignee is authorized to execute Administrative Amendments on
behalf of City and no action by the City Council (e.g. noticed public hearing)shall be required before
the Parties may enter into an Administrative Amendment. However, if in the judgment of the City
Manager or assignee that a noticed public hearing on a proposed Administrative Amendment would be
required,City's Planning Commission shall conduct a noticed public hearing to consider whether the
Regency—Tatra: Devebpmenl Agrcemcm_10-13-2015.ord -9-
Ordinance No. 1461 -Exhibit A
111
Administrative Amendment should be approved or denied,and shall make a recommendation to the
City Council on the matter.The City Council shall conduct a noticed public hearing to consider the
request and the Planning Commissions recommendation on the matter. At the conclusion of the public
hearing,the City Council may approve,deny,or conditionally approve the amendment.
2.6.3 Consent to Amendments. In the case of amendments affecting portions of the
Property, only the consent of the owner of such portion of the Property shall be required so long as the
amendment does not diminish the rights appurtenant to or increase the burdens upon any other portion
of the Property. Any Future Rule applicable pursuant to this Agreement and any amendment of City
Land Use Regulations including to the General Plan,applicable Specific Plan or City's zoning
ordinance, shall not require amendment of this Agreement. Instead, any such amendment shall be
deemed to be incorporated into this Agreement at the time that such amendment is approved by the
appropriate City decision maker, so long as such amendment is consistent with this Agreement.
2.6.4 Termination. This Agreement shall be deemed terminated and of no
further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section
2.3;
(b) Entry of a final court judgment not subject to further appeal setting
aside,voiding or annulling the adoption of the City ordinance approving this Agreement;
(c) The adoption of a referendum measure overriding or repealing the City
ordinance approving this Agreement;
1 (d) Completion of the Project and the Public Benefits in accordance with
the terms of this Agreement, the DDA, Entitlement Approvals and the Applicable Rules, including
issuance of all required occupancy permits and acceptance by City or applicable public agency of all
required public improvements and dedications,and City issuance ofa Certificate of Compliance
pursuant to the DDA (it being expressly acknowledged by the Parties that this Agreement will terminate
as to a portion of the Property upon issuance ofa Certificate of Compliance for such portion of the
Property, but will remain in full force and effect as to any portion of the Property for which a
Certificate of Compliance has not then been issued;
(e) Due to termination by City in accordance with Section 4.3 or Article 5;
or
(f) Upon mutual written agreement of City and Developer.
In addition,City shall have the right,but not the obligation,to terminate this Agreement as to the
portion of the Property reacquired by it pursuant to the Right of Repurchase or the Right of Reversion
under the DDA. Termination of this Agreement shall not constitute termination of any other Entitlement
Approvals for the Property. Upon the termination of this Agreement, no Party shall have any further right
or obligation hereunder except with respect to any obligation to have been performed prior to such
termination or with respect to any default in the performance of the provisions of this Agreement which
has occurred prior to such termination or with respect to any obligations which are specifically set forth as
surviving this Agreement.
2.7. Notices. Demands and Communications between the Parties. All notices, demands,
consents,requests and other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed conclusively to have been duly given(a)when hand
Repency_Tuum_Pndopn em Agreemeal_10-I)-2015.ord -10- .
Ordinance No. 1461 - Exhibit A
delivered to the other Party;(b)three(3) Business Days after such notice has been sent by United
States mail via certified mail,return receipt requested, postage prepaid,and addressed to the other
Party as set forth below; or(c)the next Business Day after such notice has been deposited with a
national overnight delivery service reasonably approved by the Parties(Federal 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 with next Business-Day delivery
guaranteed,provided that the sending Party receives a confirmation of delivery from the delivery
service provider. Unless otherwise provided in writing, all notices hereunder shall be addressed as
follows: •
1f to 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®a wss-law.com.
If to Developer: IC Tustin Legacy, LLC
•
915 Wilshire Blvd,Suite 2200
• Los Angeles, CA 90017
Attn:John Mehigan
'Fax: (213)624-2279
Email: JohnMehigan@regencycenters.com
With a copy to: Allen Markin 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
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.
3. DEVELOPMENT OF THE PROPERTY.
3.1. Public Benefits.This Agreement provides assurances that the Project described by this
Agreement will be achieved and developed in accordance with the Applicable Rules and this
Agreement,and subject to City's Reservation of Authority.The Parties believe that such orderly
development of the Project will provide the benefits to the City and additional regional public benefits,
including without limitation: increased tax revenues,installation of on-site and off-site improvements, 111and creation and retention of jobs. In addition Developer will provide the following additional Public
arrauy_Tuus _Dcaaupmw Agrermam_1043-2015- -11-
Ordinance No. 1461 - Exhibit A
Benefits which constitute specific additional consideration for this Agreement for the benefit of City:
3.1.1 Community Facilities District Formation. The City has previously established
a Community Facilities District for Tustin Legacy("AD/CFD")that includes the Property within its
boundaries.
(a) Capital Facilities(Tax Al. Developer acknowledges and agrees that its
development plan for the Project will not require use of community facility district proceeds, including
proceeds from the AD/CFD and that neither assessment district nor community facilities district
proceeds will be used to reimburse Developer for its development costs in connection with the Project.
including Project Fair Share Contribution or Project specific construction or infrastructure costs.
Accordingly, Developer waives its right to fund all or any portion of the development of the Project
pursuant to a Community Facilities District,including pursuant to any Special Tax "A" for the
development of facilities within the Tustin Legacy Backbone Infrastructure Program pursuant to the
existing AD/CFD("Tax A"),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. For
the avoidance of doubt,the City agrees that neither the Property nor the Improvements shall be subject
to or encumbered by Tax A because Developer's obligation to pay the fair share of the Tustin Legacy
Backbone Infrastructure Program shall be satisfied by payment of the Purchase Price under the DDA
and Section 3.1.2 below(which Purchase Price is inclusive of the obligation to pay the Developer's fair
share of the Tustin Legacy Backbone Infrastructure Program with respect to the Project).
(b) Tax B. As part of the AD/CFD the City has previously established
Special Tax"B"('Tax B"),the_proceeds of which shall be used by City to fund a portion of 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. Tax B is and shall be a tax and lien upon the Property and the
Improvements in accordance with the terms of the instruments governing the AD/CFD and Tax B and
the term of Tax B imposed upon the Properly and the Improvements is and shall be perpetual and shall
not be time limited in any manner unless determined by City in its sole discretion. Developer and its
Successor Owners shall pay the Tax B amounts due with respect to the Property when due to City. At
the sole discretion of City,Tax B may be structured such that assessments shall be due and payable with
respect to the Property without consideration for whether or not commercial space has been completed
thereon(i.e.,such that the Property shall be assessed as improved or developed property). 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.
(c) Notwithstanding the foregoing,City shall not be prohibited by the
terms of this Agreement from subjecting the Property 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 portion of the
Property'assessed value.
3.1.2 Project Fair Share Contribution. The Purchase Price for the Property under the
DDA is inclusive of the obligation to pay the Developer's fair share of the Tustin Legacy Backbone
Infrastructure Program with respect to the Project and accordingly, upon payment in full of the
Rese"ry-Tumn_ Dc..d,pmrn Al cmrnl_10-13-2013-ord -12-
Ordinance No. 1461 - Exhibit A
Purchase Price under the DDA, Developer shall be credited in full with payment of its fair share of the
Tustin Legacy Backbone Infrastructure Program fees and thereafter no further obligation shall be
imposed on Developer of the Project in connection with the Tustin Legacy Backbone Infrastructure
Program.
3.1.3 public Benefit Improvements. Developer shall complete the Public Benefit
Improvements listed on Exhibit"C"within the time periods set forth therein.
Notwithstanding anything to the contrary in this Agreement, if any payment under this Section
is not made or any obligation requiring performance is not performed by Developer,the City may
withhold further issuance of building permits and other approvals, including final maps,for the
Project until such time as Developer has made the required payment or undertaken the required
performance.
3.2. Developer Obiectives. In accordance with the legislative findings set forth in
Government Code Section 65864, the Developer wishes to obtain reasonable assurances that the
Project may be developed in accordance with the Applicable Rules and Existing Entitlement
Approvals and with the terms of this Agreement and subject to City's Reservation of Authority. To the
extent of Project development,and as provided by Section 3.5.2, Developer anticipates making capital
expenditures or causing capital expenditures to be made in reliance upon the DDA and this
Agreement. In the absence of this Agreement, Developer would have no assurance that it can
complete the Project for the uses and to the density and intensity of development set forth in this
Agreement and the Existing Entitlement Approvals.This Agreement,therefore,is necessary to assure
Developer that the Project will not be(I)reduced or otherwise modified in density, intensity or use
from what is set forth in the Existing Entitlement Approvals,(2)subjected to new rules,regulations,
ordinances or official policies or plans except for Future Rules made applicable pursuant to the terms
of this Agreement.
3.3. Mutual Objectives. Development of the Project in accordance with this Development
Agreement will provide for the orderly development of the Property in accordance with the objectives
set forth in the General Plan.Moreover,a development agreement for the Project will eliminate
uncertainty in planning for and securing orderly development of the Property, assure installation of
necessary improvements, assure attainment of maximum efficient resource utilization within the City
at the least economic cost to its citizens and otherwise achieve the goals and purposes established by
Government Code Section 65864. Additionally,although development of the Project in accordance
with this Agreement will restrain the City's land use or other relevant police powers,this Agreement
provides City with sufficient reserved powers during the term hereof to remain responsible and
accountable to its.residents. In exchange for these and other benefits to City,the Developer will
receive assurance that the Project may be developed during the term of this Agreement in accordance
with the Applicable Rules, Entitlement Approvals and Reservation of Authority,subject to the terms
and conditions of this Agreement.
3.4. Aoplicability of the Agreement. This Agreement does not: (a)grant density or
intensity in excess of that otherwise established in the Existing Entitlement Approvals;(b)eliminate
future discretionary actions relating to the Project that are either required by the Applicable Rules or
requested by Developer pursuant to applications initiated and submitted by Developer after the
Effective Date;(c)guarantee that Developer will receive any profits from the Project;(d)amend the
DDA,the Specific Plan or the General Plan or(e)protect the Developer, the Project or the Property
from the applicability of any increases in development fees or processing fees. In addition,except
aegencyTurun_Dewkgmem A,eemem_10-13-2015-ard -13-
Ordinance No. 1461 - Exhibit A
' as specifically set forth in Section 3.6.2 and 3.10,this Agreement does not protect the Developer,the
Project or the Property from the applicability of any Future Rules(i)imposed pursuant to City's
Reservation of Authority or(ii)if not imposed pursuant to the City's Reservation of Authority,.
adopted by the City and not in conflict(as defined in Section 3.6.2)with Existing Land Use
Regulations
3.5. Agreement and Assurance on the Part of the Developer. In consideration for
City entering into this Agreement, and as an inducement for City to obligate itself to carry out the
covenants and conditions set forth in this Agreement,and in order to effectuate the premises,purposes
and intentions set forth in this Agreement, Developer hereby agrees as follows:
3.5.1 Project Development. Developer agrees that it will use commercially
reasonable efforts, in accordance with its own business judgment and taking into account market
conditions and economic considerations,to undertake any development of the Project in accordance
with the terms and conditions of the DDA,this Agreement and the Existing Entitlement Approvals.
3.5.2 Additional Obligations of Developer as Consideration for this Agreement.In
addition to the obligations identified in Section 3.1,the development assurances provided by
Developer in this Agreement and the resulting construction of the Project will result in the following:
(a) Construction of a community commercial shopping center of
approximately 98,300 buildable square feet, which shall include a single grocery store use of not less
than 15,000 square feet and a drug store use;and a medical office and acute care facility of
approximately 150,000 buildable square fed at Disposition Parcel IC,consistent with this Agreement,
the Applicable Rules,the Entitlement Approvals and the DDA, including without limitation in
' accordance with the schedule of performance set forth in the DDA.
(b) Construction of all Improvements identified in the DDA in
accordance with the schedule of performance set forth in the DDA.
(c) Completion of all Public Benefit Improvements identified on Exhibit
. "C" in accordance with the schedule of performance set forth in the DDA and this Agreement.
(d) Compliance with the DDA,the Applicable Rules and Entitlement
Approvals,state and federal law,all mitigation measures,including measures imposed pursuant to the
California Environmental Quality Act("CEQA"),all Development Permits and all conditions of
approval associated with the foregoing.
(f) Payment of all required development related fees,including but not
limited to any required Tustin Legacy Backbone Infrastructure Program Fees and processing fees,
pursuant to the terms and conditions set forth in the DDA and this Agreement.
3.6. Agreement and Assurances on the Part of City. In consideration for Developer
entering into this Agreement, as an inducement for Developer to obligate itself to carry out the
covenants and conditions set forth in this Agreement,and in order to effectuate the purpose of this
Agreement,City hereby agrees as follows:
3.6.1 Applicable Regulations;Vested Right to Develop. To the maximum extent
permitted by law,Developer has the vested right for the term of this Agreement to develop the
Project subject to the terms and conditions of this Agreement,the Applicable Rules,state and federal
law,and the Existing Entitlement Approvals and any Subsequent Entitlement Approvals approved by
City, in each case subject to City's Reservation of Authority and subject to the additional terms and
•
Regency_TusIm__DevelopmenIAgreement_10-13-2015-ord -14-
Ordinance No. 1461 - Exhibit A
conditions set forth in the DDA.Other than as expressly set forth herein,during the Term of this
Agreement,the terms and conditions of development applicable to the Property, including but not
limited to the permitted uses of the Property,the density and intensity of use, maximum height and
size of proposed buildings,the design, improvement and construction standards and specifications
applicable to the development of the Property, including any changes authorized pursuant to Section
3.6.2,and the provisions for the reservation and dedication of land as needed for public purposes
pursuant to Governmental Requirements, shall be those set forth in the DDA,the Applicable Rules,
and the Entitlement Approvals. In connection therewith and subject to the terms of this Agreement
including the Reservation of Authority, Developer shall have the Vested Right to carry out and
develop the Property in accordance with the Applicable Rules and the Entitlement Approvals and the
provisions of this Agreement.
3.6.2 Changes Authorized by City. To the extent any changes in the Existing Land
Use Regulations,or any provisions of future General Plans, Specific Plans,Tustin City Code or other
rules,regulations,ordinances or policies of City(whether adopted by means of ordinance,initiative,
referenda,resolution,policy,order, moratorium,or other means,adopted by the City Council, Planning
Commission,or any other board,commission, agency,committee,or department of City,or any officer
or employee thereof)following the Effective Date(collectively,"Future Rules") are not in conflict
with the Vested Rights,such Future Rules shall be applicable to the Project. For purposes of this
Section 3.6.2,the word "conflict"means Future Rules that would(a)frustrate in a more than
insignificant way the intent or purpose of the Applicable Rules in relation to the Project;(b)materially
increase the cost of performance of.or preclude compliance with,any provision of the Vested Right;
(c)delay in a more than insignificant way development of the Project;(d)limit or restrict the
availability of public utilities,services, infrastructure of facilities(for example, but not by way of
limitation,water rights,water connection or sewage capacity rights,sewer connections,etc.)to the
Project, or(e)impose limits or controls in the rate,timing,phasing or sequencing of development of I the Project.
Notwithstanding the foregoing,a Future Rule that conflicts with the Applicable Rules shall
nonetheless apply to the Property if, and only if one of the following apply: (i) it is consented to in
writing by Developer;(ii) it is determined by City and evidenced through findings adopted by the City
Council that the change or provision is reasonably required in order to prevent a condition dangerous
to the public health or safety as set forth in Section 3.10.3 below;(iii)required by changes in State or
Federal law as set forth in Section 3.10.2 below:(iv) it consists of revisions to,or new building
regulations permitted by Section 3.10.4:'or(v)it is otherwise expressly permitted by this Agreement.
3.6.3 Availability of Public Services. To the maximum extent permitted by law and
consistent with its authority,City shall use commercially reasonable efforts to assist Developer in
reserving such capacity for sewer and water services as may be necessary to serve the Project,at no
cost or expense to City.
3.6.4 Allocation of Development Rights Under Specific Plan.City hereby
acknowledges that it has allocated to the Property and reserved for development of the Project a total of
248,292 buildable square feet of commercial floor area from the total Specific Plan Planning Area 7
authorization of 248,292 buildable square feet of commercial floor area.
3.7. Effect of Agreement on Land Use Regulations. Except as otherwise provided under
the terms of this Agreement including the Reservation of Authority(and notwithstanding any future
action of City or its citizens,whether by ordinance,resolution, initiative or otherwise),the rules,
regulations,and official policies governing the Project, including,without limitation,the permitted uses
Regmry_Tustm: ne,elopmenl Agreement_10.13.2015.and 'l5-
Ordinance No. 1461 - Exhibit A
of the Property, the density and intensity of use of the Property,the maximum height and size of
proposed buildings, the design, improvement and construction standards and specifications applicable
to the Project, including any changes authorized pursuant to Section 3.6.2,the subdivision of land and
requirements for infrastructure and public improvements,and other terms and conditions of the Project,
shall be the Applicable Rules and the provisions of this Agreement. City shall accept for processing
and review and take action on all applications for Subsequent Entitlement Approvals as provided in
Section 3.9 below. In connection with any Subsequent Entitlement Approval,City shall exercise .
discretion in the same manner as it exercises its discretion under its police powers, including the
Reservation of Authority; provided however, that such discretion shall not prevent development of the
Project as set forth in this Agreement.
3.8. Timing of Development. The timing of development will be as set forth in the DDA.
Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo(1984)37
Cal. 3d 465,that the failure of the parties therein to provide for the timing of development resulted in a
later adopted initiative restricting the timing of development to prevail over such parties'agreement, it
is the Parties'intent to cure that deficiency by acknowledging and providing that Developer will adhere
to the terms of the DDA and Section 3.19 below regarding the liming of development.
3.9. Subsequent Entitlement Approvals;Changes and Amendments.The Parties
acknowledge that refinement and further development of the Project may require Subsequent
Entitlement Approvals and may demonstrate that changes are appropriate and desirable in the Existing
Entitlement Approvals. Entitlement Approvals(except for this Agreement,the amendment process for
which is set forth in Section 2.6)may be amended or modified from time to time,but only et the
written request of Developer or with the written consent of Developer(at its sole and absolute
' discretion).All amendments to the Entitlement Approvals shall automatically become part of the
Applicable Rules. In the event Developer finds that a change in the Existing Entitlement Approvals is
necessary or appropriate, Developer shall apply for a Subsequent Entitlement Approval to effectuate
such change and City shall process and act on such application in accordance with the Applicable
Rules,except as otherwise provided by this Agreement, including the Reservation of Authority. If
approved,any such change in the Existing Entitlement Approvals shall thereafter be deemed to be an
Existing Entitlement Approval and a Vested Right for all purposes of this Agreement without requiring
an amendment to this Agreement and may be further changed from time to time as provided in this
Section.
3.10. Reservation of Authority. Notwithstanding any other provision of this Agreement to
the contrary,the Future Rules described in this Section 3.10 shall apply to and govern development of
the Property and Project to the extent set forth herein.
3.10.1 Consistent Future City Regulations. Future Rules shall apply to and govern
development of the Property, provided that any Future Rules which reduce the density or intensity of
the Project below that permitted by the Existing Land Use Regulations or the Existing Entitlement
Approvals,alter the permitted uses of the Property, reduce the maximum height or size of any
permitted buildings, impose additional obligations in connection with the reservation or dedication of
land for public purposes beyond the requirements identified in the DDA,or limit the rate,timing,or
sequencing of development of the Property from that required in the DDA or in any Entitlement •
Approvals,shall be deemed inconsistent with this Agreement and shall not be applicable to the
development of the Property and Project.
3.10.2 Overriding State and Federal Laws. City shall not be precluded from adopting
Regency_Tunm_ Ue.elopmenl Apcement_10-13-2015-ard -16-
Ordinance No. 1461 - Exhibit A
and applying Future Rules to the Property and the development of the Project to the extent that such
Future Rules are required to be applied by State or Federal laws or regulations and which would
override Developer's Vested Rights as set forth in this Agreement,provided however,that
(a)Developer does not waive its right to challenge or contest the validity of such State or Federal rules
or regulations; and (b) such Future Rules, if otherwise in conflict with the Vested Rights(as described
in Section 3.6.2)shall only be applied to the Project and development of the Project to the extent
necessary to comply with such new State or Federal law or regulation. In the event that such State or
Federal law or regulation(or Future Rules undertaken pursuant thereto)prevents or precludes
substantial compliance with one or more provisions of the Existing Land Use Regulations or this
Agreement,the Parties agree to consider in good faith amending or suspending such provisions of this
Agreement as may be necessary to comply with such State or Federal laws(or Future Rules),provided
that no Party shall be bound to approve any amendment to this Agreement unless this Agreement is
amended in accordance with the procedures applicable to the adoption of development agreements as
set forth in the Development Agreement Statute and Tustin City Code and each Party retains full
discretion with respect thereto.
3.10-3 Public Health and Safety. Nothing in this Agreement shall preclude the City
Council from adopting and applying Future Rules that the City Council finds are reasonably necessary
to protect persons on the Property or in the immediate community,or both,from conditions dangerous
to their health or safety notwithstanding that the applications of such Future Rules or other similar
limitation would result in the impairment of Developer's Vested Rights under the Agreement or the
Existing Land Use Regulations. In determining whether any such Future Rules are reasonably
necessary to protect persons as set forth above,the City Council shall make findings,based on
evidence presented to and accepted by the City Council that the changes are reasonably necessary to
protect the public health or safety. The provisions of this Section 3.10.3 do not apply to any measure
adopted by initiative.
3.10.4 Uniform Construction Codes and Regulations. Policies and rules governing
engineering and construction standards and specifications applicable to public and private
improvements, including all uniform codes adopted by City and any local amendments to those codes
adopted by City in the future shall apply to the Project and Property.
3.10.5 Police Power. In all respects not provided for in this Agreement,City shall
retain full rights to exercise its police powers to regulate development of the Project and Property.
Any uses or development requiring a concept plan,design review,tentative tract map,conditional use
permit,variance,or other Entitlement Approvals in accordance with Existing Land Use Regulations
shall require a permit or approval pursuant to this Agreement and notwithstanding any other
provision set forth herein, this Agreement is not intended to vest Developer's right to issuance of such
permit or approval.
3.11. Processing.
3.1 I.I Subdivisions. A subdivision,as defined in Government Code Section 66473.7,
shall not be approved unless a tentative map for the subdivision complies with the provisions of said
Section 66473.7. This provision is included in this Agreement to comply with Section 65867.5 of the
Government Code.
3.1 1.2 Subsequent Entitlement Approvals. City shall employ all lawful actions
capable of being undertaken by City to promptly(a)accept all complete applications for Subsequent
Entitlement Approvals(collectively, "Applications")and(b) process and take action upon
Regrnry_Twrm_ Developaenr_Agnsmem_10.13-2015-ord -17-
Ordinance No. 1461 - Exhibit A
Applications in accordance with the Applicable Rules with a goal of completing the review within time
frames identified in the DDA; provided however,that City shall not be deemed in default under this
Agreement should such time frame(s) not be met. To the extent that Developer desires that City plan
check or process an Application on an expedited basis and to the extent that it requires an additional
expense beyond the customary expense applicable to the general public, City shall inform Developer
of such additional expense, including the cost of overtime and private consultants and other third
parties. If acceptable to Developer, Developer shall pay the additional cost and City shall use good
faith efforts to accelerate the processing time utilizing overtime and the services of private consultants
and third parties to the extent available. Upon the written request of Developer, City shall inform
Developer of the necessary application requirements for any requested City approval or requirement
relating to the Project. At such time as a Subsequent Entitlement Approval applicable to the Property
is approved by City,then such Subsequent Entitlement Approval shall become subject to all of the
terms and conditions of this Development Agreement and shall be treated as an "Existing Entitlement
Approval" under this Agreement.
3.11.3 Filings. Developer shall exercise reasonable efforts to file applications for
Development Permits and Entitlement Approvals within the time frames and schedules as generally
outlined in the DDA and shall exercise reasonable efforts to attempt to obtain Development Permits
and Entitlement Approvals within the time frames identified in the DDA;provided,however,that
failure solely to comply with such time frame(s)shall not be deemed to be a default under this
Agreement.
3.1 1.4 Cooperation. City and Developer shall cooperate in processing all
applications for permits and approvals for the Project,provided,however,that such cooperation shall
not include any obligation of City to incur any tin-reimbursed expense,and City shall be entitled,
subject to the terms of this Agreement,the DDA and Developer's rights hereunder,to exercise all
discretion to which it is entitled by law in processing and issuing any permits and approvals for the
Project.
3.11.5 Approvals. Notwithstanding any administrative or judicial proceedings,
initiative or referendum concerning any of the Entitlement Approvals,City shall process applications
for permits and approvals as provided herein to the fullest extent allowed by law and Developer may
proceed at its sole risk with development of the Project pursuant to the DDA the Applicable Rules
and Entitlement Approvals to the fullest extent allowed by law, Notwithstanding the foregoing,
Developer acknowledges and agrees that City reserves its discretion to approve or disapprove all
Subsequent Entitlement Approvals with respect to the Project and that nothing in this Agreement will
be construed as circumventing or limiting City's discretion with respect thereto or with respect to the
environmental review required by CEQA. Such reservation of discretion will apply to all
contemplated legislative and quasi-judicial actions including, without limitation,approval of land use
entitlements,CEQA compliance,code enforcement and the making of findings and determinations
required by law and the City may, in its sole and absolute discretion,elect not to approve,adopt or
certify any requested subsequent entitlement approval based on CEQA review or other discretionary
factors.
3.12. CEOA. This Agreement does not modify,alter or change the City's obligations
• pursuant to CEQA. Developer acknowledges that City is required by State law to comply with CEQA
in the consideration and approval of any Subsequent Entitlement Approval and/or any amendment to
this Agreement.The EIR,which has been certified by City as being in compliance with CEQA,
addresses the potential environmental impacts of the entire Project as it is described in the Existing
111
Entitlement Approvals. Nothing in this Agreement shall require or be construed to require CEQA
Regency Tusim_ Dmdopmem_Agreement_10-13.20IS-ord -18-
Ordinance No. 1461 - Exhibit A
review of ministerial approvals. It is agreed that, in acting on any discretionary Subsequent
Entitlement Approvals for the Project,City shall rely on the EIR to satisfy the requirements of CEQA
to the extent permissible by CEQA. In the event that any additional CEQA documentation is legally
required for any discretionary Subsequent Entitlement Approval for the Project,then the scope of such
documentation shall be focused,to the extent possible consistent with CEQA,on the specific subject
matter of the Subsequent Entitlement Approval and City shall conduct such CEQA review as
expeditiously as possible,at Developer's expense. Nothing herein shall restrict or limit the obligation
of Developer to pay for and implement any additional mitigation measures or conditions of approval
imposed as a result of such CEQA and any Subsequent Entitlement Approval process.
3.13. Fees.
3.13.1 Processing Fees and Charges. Developer shall pay those processing,
inspection and plan checking fees and charges required by City under the then current
regulations for processing applications and requests for permits,approvals,and other actions and
monitoring compliance with any permits issues or approvals granted.
3.13.2 Development Fees. City shall have the right to impose,and Developer shall
pay, all development fees adopted by City at the time of issuance of building permits for the Project.
3.13.3 Project Fair Share Contribution. The fair share of the Tustin Legacy
Backbone Infrastructure Program to be contributed by Developer with respect to the Project shall be
Ten Million Three Hundred Five Thousand Six Hundred Seventeen Dollars($10,305,617)("Project
Fair Share Contribution")which amount shall be paid as a component of the Purchase Price for the
Property pursuant to the DDA.
3.14. Dedications. Developer acknowledges and agrees that it shall be required to make
certain dedication to City and other public agencies as required by(a)the Entitlement Approvals,
including the approved tentative parcel map(TPM)2015-127("Parcel Map"),(b)the Applicable
Rules,(c)the DDA,(d)the EIR and subsequent CEQA documents, if any,adopted by the City in
connection with any Subsequent Entitlement Approval, and (e)as required pursuant to Developer's
assumption of City MCAS Tustin obligations under the"Agreement Between the City of Irvine and
the City of Tustin Regarding the Implementation,Timing, Funding of Transportation/Circulation
Mitigation for the MCAS Tustin Project" and the"Amendment to the Joint Exercise of Powers
Agreement Between the City of Santa Ana and the City of Tustin Regarding the Tustin-Santa Ana
Transportation Improvement Authority".
3.15. Reeulation by Other Public Aeencies. ft is acknowledged by the Parties that other
public agencies not within the control of City possess authority to regulate aspects of the Project and
development of the Property separately from or jointly with City and this Agreement does not limit the
authority of such other public agencies. City agrees to cooperate fully,at no out of pocket cost to City,
with Developer in obtaining any required permits or compliance with the regulations of other public
agencies provided such cooperation is not in conflict with any laws, regulations or policies of City.
3.16. Tentative Parcel Map and Tract Map Extension. Any subdivision map, heretofore or
hereafter approved in connection with development of the Property,shall be eligible for extensions of
time as provided in Government Code Section 66452.6,except that any extension shall be consistent
with any applicable performance schedule as provided or established in the DDA and shall not be
deemed or considered in any way an extension of any Developer rights or obligations under the DDA.
Rc ency_Twim_ Dnclopment Ayreemem_10.13-2015-ord -19-
Ordinance No. 1461 -Exhibit A
3.17. Recordin¢of Final Map. Development of the Project will require approval by City of
the Final Map. Developer acknowledges and agrees that City will not issue a building permit for any
building pads,until such time as(a)a final parcel map has been approved by City and Recorded and
(b) City and Developer have entered into a Subdivision Improvement Agreement in form approved by ,
City in its Governmental Capacity.
•
3.18. Quimby Fees and Park Fees. All fees required in connection with the Project pursuant
to the Quimby Act,California Government Code Section 66477, if any,are included within the Project
Fair Share Contribution and Developer shall not have any additional liability on account thereof.
3.19. Certain Restrictions on Buildi Permit Issuance for Parcels 10. 11 and 13.
3.19.1 The City's primary goal in entering into this Agreement for Parcels 10 through
13,inclusive,as depicted on the Parcel Map, is to assure development at Tustin Legacy of a medical
office building on Parcel 12. Developer hereby expressly: (a)recognizes that development on Parcels
10, II and 13(collectively,the"Other Healthcare Parcels") is ancillary to the development of Parcel
12;(b) assumes the risk that development of vertical improvements on the Other Healthcare Parcels
may not be carried out unless and until Healthcare Developer(as defined in the DDA)has obtained a
building permit for construction of a medical office building on Parcel 12 and(c)acknowledges and
agrees that pursuant to the terms of this Agreement,the DDA and the Entitlements,the City shall not
issue building permits for vertical improvements on the Other Healthcare Parcels unless and until
Healthcare Developer has applied for and obtained the first building permit(which shall include the
first foundation permit) for construction of a medical office building,on Parcel 12.
3.19.2 Condition of Other Healthcare Parcels. Upon completion of rough grading of
any portion of Parcels 10, 11, 12 and/or 13,as depicted on the Parcel Map, until the commencement of
construction of vertical improvements thereon following issuance of a building permit(including
during any period in which the City shall not issue building'permits for Parcels 10, II or 13 pursuant
to Section 3.19), Developer shall(a)secure and maintain the graded parcels in a flat,clean,safe and
secure condition, in compliance with all applicable laws, (ii)hydroseed such portion of the parcels as
are not then under construction to the extent appropriate, (iii)erect and maintain barricades and
fencing,and provide security, as reasonably necessary to protect the public and any improvements
already constructed, and(iv)erosion control thereon in compliance with laws.
4. ANNUAL REVIEW.
4,1. Timing and Annual Review.The City Council shall review Developer's
performance under this Agreement at least every twelve(12)months from the Effective Date until
expiration of the Agreement. In connection with such review,both City and Developer shall have
a reasonable opportunity to assert matters which either believes have not been undertaken in
accordance with this Agreement, to explain the basis for such assertion, and to receive from the
other Party a justification of its position on such matters.
4.2. Review Procedure. City shall provide notice to Developer and deliver to Developer or
it successor in interest a copy of all public staff reports, documents and related exhibits concerning
City's review of Developer's performance hereunder at least thirty(30) calendar days prior to any date
proposed for City Council review of performance under the Agreement.
4.2.1 Good Faith Compliance. Developer or its Successor in Interest shall
Regenry_Tintm_De,elopment Agleemenl_10.13.7015.ord -20-
Ordinance No. 1461 - Exhibit A
demonstrate good faith compliance with the terms of this Agreement and shall furnish evidence of
good faith compliance, as City, in its reasonable exercise of its discretion,may require. Evidence of
good faith compliance may include the following:
(a) conformance with the DDA, including the Scope of Development
and Schedule of Performance:
(b) conformance with the requirements of the Specific Plan;and
(c) conformance with provisions of this Agreement identified by City.
4.2.2 Response. Developer or its successor in interest shall have the opportunity to
be heard and respond to City's evaluation of Developer's performance,either orally or in a written
statement,at Developer's election.
4.2.3 Non-Compliance. if,as a result of its periodic review as described in Section
4.1,the City Council finds and determines,on the basis of substantial evidence,that the Developer
has not complied in good faith with the terms or conditions of this Agreement,the City Council may
commence proceedings to enforce,modify,or terminate this Agreement.
4.2.4 Referral. The City Council may refer the matter to the Planning Commission
for further proceedings or for a report and recommendation.
4.3. Modification or Termination. If the City Council determines to proceed with
modification or termination of this Agreement, the City Council shall give notice to Developer or
successor in interest thereto of its intention to do so.The Notice shall contain all information required
by Tustin City Code Section 9618. At the time and place set for the hearing on modification or
termination,the City Council may refer the matter back to the Planning Commission for further
proceedings or for a report and recommendation. The City Council may take such action as it deems
necessary to protect the interests of City, including but not limited to,the receipt of additional
evidence as to Developer's compliance with the terms of this Agreement. The decision of the City
Council shall be final,subject only to judicial review pursuant to California Code of Civil Procedure
Section 1094.5(b).
4.4. Certificate of Agreement Compliance. If, at the conclusion of a periodic review,
Developer is found to be in compliance with this Agreement,City shall, upon request of the Developer,
issue a Certificate(the"Certificate")to Developer stating that after the most recent periodic review
and based upon the information known or made known to the City Council that: (a)this Agreement
remains in effect,and(b) Developer is not in default.The Certificate shall be in recordable form, shall
contain information necessary to communicate constructive record notice of the finding of compliance,
and shall state the anticipated date of commencement of the next periodic review. Developer may
record the Certificate with the County Recorder. If City does not find Developer to be in compliance
with this Agreement, it shall not be obligated to issue the Certificate.
5. DEFAULT,REMEDIES. AND TERMINATION.
5.1. Default Procedure. A non-defaulting Party(the"Non-Defaulting Party")at its
discretion may elect to declare a default under this Agreement in accordance with the procedures
hereinafter set forth for any failure or breach of any other Party("Defaulting Party")to perform any
material duty or obligation of said Defaulting Party in accordance with the terms of this Agreement.
However,the Non-Defaulting Party must provide written notice to the Defaulting Party setting forth
acgencv_Tuwn_Develapacnt_Agreemeet_10.13.2015.ord -21-
Ordinance No. 1461 - Exhibit A
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)
calendar days after the date of such notice(for monetary defaults)or within thirty(30)calendar days
after the date of such notice(for non-monetary defaults). If, however, a non-monetary default cannot
be cured within such thirty(30)calendar day period,as long as the Defaulting Party does each of the
following:
(a) provides the Non-Defaulting Party in writing a reasonable explanation as to
the reasons the asserted default is not curable within the thirty(30)calendar day period;
(b) notifies the Non-Defaulting Party in writing of the Defaulting Party's
proposed course of action to cure the default;
(c) promptly commences to cure the default within the thirty(30)calendar
day period;
(d) makes periodic written reports to the Non-Defaulting Party as to the'
progress of the program of cure;and
(e) diligently prosecutes such cure to completion,
then the Non-Defaulting Party shall grant in writing the Defaulting Party such additional time as
determined by the Non-Defaulting Party as reasonably necessary to cure such default.
5.2. City's Remedies. In the event of an uncured default by Developer under this
Agreement,the City,at its option, may institute legal action to cure, correct or remedy such default,
enjoining any threatened or attempted violation, enforce the terms of this Agreement by specific
performance,or pursue any other legal or equitable remedy. Furthermore,City, in addition to or as an
alternative to exercising the remedies in this Section 5.2, in the event of a material default by
Developer. may give notice of its intent to terminate or modify this Agreement pursuant to Section
4.3, in which event the matter shall be scheduled for consideration and review by the City Council in
the manner set forth in Tustin City Code Section 9618. The decision of the City Council shall be
final,subject only to judicial review pursuant to California Code of Civil Procedure Section
1094.5(b).
5.3. Developer's Remedies. In the event of an uncured default of City under this
Agreement, Developer shall be entitled to any or all of the following remedies: (a)seeking mandamus
or special writs, injunctive relief, or specific performance of this Agreement;(b)modification or
termination of this Agreement;or(c) seeking any other remedy available at law or in equity,provided,
however, except as provided in Section 8.10 below,the Developer agrees and covenants on behalf of
itself and it successors and assigns,not to sue City for damages or monetary relief for any breach of
this Agreement or arising out of or connected with any dispute,controversy or issue regarding the
application or effect of this Agreement,or for general,special,compensatory, expectation,anticipation,
indirect,consequential,exemplary.or punitive damages("Damages")arising out of or connected with
any dispute,controversy,or issues regarding the application or effect of this Agreement,the DDA,the
Applicable Rules,or any Development Permits or Entitlement Approvals sought in connection with
development or use of the Property or Project,or any portion thereof. Developer acknowledges that
City would not have entered into this Agreement if City could be held liable for Damages for any
default or breach arising out of this Agreement and that Developer has adequate remedies other than
Regeney_Tustm__De cIopmenl A reemenl_1043-2015-onl -�?-
Ordinance No. 1461 - Exhibit A
Damages to secure City's compliance with its obligations under this Agreement. Therefore, Developer
agrees that City, its officers, employees and agents shall not be liable for any Damages and that this
section shall apply to all Successors in Interest of the Developer.
5.4. Third Party Legal Challenges. In the event of any legal action instituted by a third
party challenging the validity or enforceability of any provision of this Agreement,the Applicable
Rules,the DDA, or Entitlement Approvals for the Project or the approval of any CEQA document
prepared in connection with the foregoing, Developer agrees,at its sole cost and expense,to defend
(with counsel reasonably acceptable to City),indemnify,and hold harmless City, its officers,
employees,agents,and consultants,from any claim, action, or proceeding against City, its officers,
agents,and employees, which seeks to attack,set aside,challenge,void,or annul an approval of the
City Council, the Planning Commission, or any other decision-making body, including staff,
concerning the Project. City agrees to promptly notify Developer of any such claim or action filed
against City and to cooperate in the defense of any such action. Developer shall also indemnify and
hold harmless City and its agents, officials and employees from and against all claims,losses,or
liabilities assessed or awarded against City by way of judgment,settlement,or stipulation. City may
elect to participate in the defense of any such action under this condition.
6. INDEMNITY BY DEVELOPER.
Developer agrees to indemnify,defend,and hold harmless City,City's designees.and their
respective elected and appointed officials,hoards,commissions,agents,contractors,and employees
from and against any and all actions, suits,claims, liabilities, losses,damages,penalties,obligations
and expenses(including but not limited to attorney's fees and costs)which may arise,directly or
indirectly, from the acts,omissions,or operations of Developer or Developer's agents,contractors,
subcontractors,agents,or employees pursuant to this Agreement,but excluding any loss resulting
from the intentional or active negligence of City, City's designee,or each of their respective elected
and appointed officials, boards,commissions,officers, agents,contractors,and employees. Developer
shall select and retain counsel reasonably acceptable to City to defend any action or actions and
Developer shall pay the cost thereof. The indemnity provisions set forth in this Agreement shall
survive termination of the Agreement.
7. MORTGAGEE PROTECTION.
The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any
manner, from encumbering the Property or any portion thereof or any improvement thereon by any
Mortgage securing financing with respect to the Property; provided that nothing herein shall modify
or amend the restrictions set forth in the DDA with respect to Mortgages.Any Mortgagee holding a
Mortgage that is not prohibited by the DDA shall be entitled to the following rights and privileges:
(a) This Agreement shall be superior and senior to any lien placed upon the Property or
any portion thereof after the date of recording of this Agreement, including without limitation the lien
of any Mortgage. Notwithstanding the foregoing, neither entering into this Agreement nor a breach of
this Agreement shall defeat,render invalid,diminish or impair the lien of any Mortgage on the
' Property made in good faith and for value,unless otherwise required by law,and any acquisition or
acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a
Mortgagee(whether pursuant to foreclosure,trustee's sale,deed in lieu of foreclosure,lease
termination or otherwise) shall be subject to the terms and conditions of this Agreement and any such
Mortgagee who takes title to the Property or any portion thereof shall be entitled to benefits arising
under this Agreement.
ReaencY_Tosun_De•elopmem_Apeement_IC-13-2013-ord -23-
Ordinance No. 1461 - Exhibit A
(b) Each Mortgagee of any Mortgage encumbering the Property,or any part thereof,and
which is not securing the interest of an End User shall upon written request in writing to City,be
entitled to receive written notice from City of results of the Annual Review and of any default by
Developer in the performance of Developer's obligations under this Agreement concurrently with
delivery of same to Developer and shall have the right,but not the obligation,to cure the default
during the remaining cure period allowed such Party under this Agreement(including any extended
cure period necessary in order to allow the Mortgagee to obtain title to the Property and cure the
default). Notwithstanding the foregoing,the failure of City to deliver a concurrent copy of such notice
of default to a Mortgagee shall not affect in any way the validity of the notice of default as it relates to
the Developer,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.
(c) Any Mortgagee who comes into possession of the Property,or any part thereof,
pursuant to foreclosure of the Mortgage or deed in lieu of such foreclosure,shall take the Property, or
part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this
Agreement to the contrary,no Mortgagee shall have an obligation or duty under this Agreement to
perform any of Developer's obligations or other affirmative covenants of Developer hereunder,or to
guarantee such performance;except that(i)the Mortgagee shall have no right to develop the Property
without fully complying with the terms of this Agreement,the DDA,the Applicable Rules and
Entitlement Approvals and(ii)to the extent that any covenant to be performed by Developer is a
condition precedent to the performance of a covenant by City, the performance thereof shall continue
to be a condition precedent to City's performance hereunder.
Notwithstanding anything to the contrary contained above in this Section, any Mortgagee shall
be subject to all of the terms of the DDA, to the extent applicable pursuant to the DDA to such
Mortgagee.
8. MISCELLANEOUS PROVISIONS.
8.1. Recordation of Agreement. This Agreement and any amendment or cancellation
thereof shall be recorded with the Orange County Recorder by the City Clerk within ten(10)calendar
days after City executes this Agreement,as required by Section 65868.5 of the Government Code. If
the Parties to this Agreement or their Successors in Interest amend or cancel this Agreement as
provided for herein and in Government Code Section 65868,or if City terminates or modifies this
Agreement as provided for herein and in Government Code Section 65865.1 for failure of Developer
to comply in good faith with the terms or conditions of this Agreement,the City Clerk shall have
notice of such action recorded with the Orange County Recorder.
8.2. Entire Agreement. This Agreement and the DDA set forth and contains the entire
understanding and agreement of the Parties with respect to the matters set forth herein,and there are no
oral or written representations, understandings or ancillary covenants, undertakings or agreements
which are not contained or expressly referred to herein. No testimony or evidence of any such
representations, understandings or covenants shall be admissible in any proceeding of any kind or
nature to interpret or determine the terms or conditions of this Agreement.
8.3. Severability. If any term,provision,covenant or condition of this Agreement shall be
determined invalid, void or unenforceable,the remainder of this Agreement shall not be affected
Regency_Tenin_ Daelopment Ageemem_10-13-2015-ad -24-
Ordinance No. 1461 - Exhibit A
thereby to the extent such remaining provisions are not rendered impractical to perform taking into 111consideration the purposes of this Agreement.
8.4. Jnteroretation and Governing Law. This Agreement and any dispute arising hereunder
shall be governed and interpreted in accordance with the internal laws of the State of California
without reference to choice of law or conflicts of law provisions.This Agreement shall be construed as
a whole according to its fair language and common meaning to achieve the objectives and purposes of
the Parties hereto,and the rule of construction to the effect that ambiguities are to be resolved against
the drafting Party shall not be employed in interpreting this Agreement,all Parties having been
represented by counsel in the negotiation and preparation hereof. The decision of the City Council
shall be final,subject only to judicial review pursuant to California Code of Civil Procedure Section
1094.5(b).
8.5. Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
8.6. Construction.
8.6.1 References to Sections,Clauses and Exhibits. 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.
8.6.2 Singular and Plural. As used herein,the singular of any word includes the plural
and vice versa.
8.6.3 Includes and including. As used in this Agreement the words"include" and
"including" mean,respectively, "include,without limitation" and"including, without limitation".
8.7. Time of Essence. Subject to the following sentence,time is of the essence in the
performance of each provision of this Agreement. Whenever action must be taken(including the
giving of notice or the delivery of documents)under this Agreement during a certain period of time or
by a particular date that ends or occurs on a non-Business Day, then such period or date shall be
extended until the immediately following Business Day.
8.8. Waiver. Failure by a Party to insist upon the strict performance of any of the provisions
of this Agreement by the other Party,or the failure by a Party to exercise its rights upon the default of
the other Party,shall not constitute a waiver of such Party's right to insist and demand strict compliance
by the other Party with the terms of this Agreement thereafter.
8.9. No Third Party Beneficiaries.This Agreement is made and entered into for the sole
protection and benefit of the Parties and their successors and assigns.No other person shall have any
right of action based upon any provision of this Agreement.
8.10. Attorneys' Fees. 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 "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
111
Regency_Tunin__Devekrpn,eni Agreement_10.13.2015-ord
Ordinance No. 1461 - Exhibit A
•
' payable at the actual contractual hourly rate for City's litigation counsel at the time the fees were
incurred,but in no event less 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 8.10 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.
8.1 I. Force Majeure
8.1 1.1 "Force Majeure Delay"shall mean the occurrence of any of the following
events when such event is beyond the control of the Claiming 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 claiming Party to meet its non-monetary obligations under this
' Agreement, including the deadlines imposed by the Schedule of Performance,or the ability of
Developer to Complete the Project, and which events(or the effect of which events)could not have
been avoided by due diligence and use of reasonable efforts by the Claiming Party:
(a) 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;
(b) Unforeseeable Conditions. Reasonably unforeseeable physical
condition of the Property including the presence of Hazardous Materials;
(c) Casualty. Fire,earthquake,or other casualty, in each case only if
causing material physical destruction or damage on the Property;
(d) litigation. Any lawsuit seeking to restrain,enjoin,challenge or delay
any issuance of any Entitlement Approval or seeking to restrain,enjoin,challenge,or delay
construction of the Project which is defended by the Claiming Party:
(e) 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.
8.1 1.2 Limitation.The term "Force Majeure Delay"shall be limited to the matters
listed in Section 8.1 1.1 above and specifically excludes from its definition the following matters
which might otherwise be considered Force Majeure Delay:
Regeaty--Torun_ Ocnkw4nent Apttmem_10.13-2015-aid -�6-
Ordinance No. 1461 - Exhibit A
(a) Entitlements.The suspension, termination, interruption,denial or
111
failure to obtain or nonrenewal of any Entitlement Approval or Development Pcrmit, license,consent,
authorization or other permit or approval which is necessary for the development of the Project,
except for any such matter resulting from a lawsuit as described in Section 8.11.1(d);
(b) Foreseeable Chanees in Governmental Requirements. Any change in
Government Requirements which was proposed or was otherwise reasonably foreseeable at the
Effective Date;
(c) Failure to Perform Obligations. Failure of Developer to perform
any obligation to be performed by Developer as the result of adverse changes in the financial
condition of Developer;
(d) Failure to Provide Financial Security. Failure of Developer to provide
financial security required by this Agreement when due or to submit evidence of financing of the
Project or to perform any obligation to be performed by Developer hereunder as the result of adverse
changes in market conditions;
(e) failure to Submit Required Documentation. Failure to submit
documentation as and when required by this Agreement;
(t) Failure to Submit Entitlement Applications. Failure to timely submit
applications for any Entitlement Approval or Development Permit required for construction of the
Improvements or development of the Project on the Property when required pursuant to the Schedule
of Performance; and
(g) Failure to Execute Documents. Failure of the Claiming Party
to execute documents; and
•
(h) Other Matters.All other matters not caused by the Second Party and
not listed in Section 18.11.1.
8.1 1.3 If any Party(the"Claiming Party")believes that an extension of time is 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 Claiming 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 Claiming 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 Claiming Party obtained knowledge thereof,the steps the Claiming 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 Claiming 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.
8.11.4 Time periods for performance of any obligations under this Agreement may be
extended for Force Majeure Delay, except that in no event shall the Term of this Agreement be
extended by an event of Force Majeure Delay beyond the time period set forth in Section 2.3.
Regenry_Tusun_ Deetlopmem_Aytemenl_10-13-2015-ord '27'
Ordinance No. 1461 - Exhibit A
8.12. Successors in Interest. The burdens of this Agreement shall be binding upon,and the
benefits of this Agreement shall inure to,all Successors in Interest to the Parties to this Agreement.
All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants
running with the land. Each covenant to do or refrain from doing some act hereunder with regard to
development of the Property: (a)is for the benefit of and is a burden upon every portion of the
Property;(b)runs with the Property and each portion thereof,and(c) is binding upon each Party and
each Successor in Interest during ownership of the Property or any portion thereof.
8.13. Counterparts. This Agreement may be executed by the Parties in counterparts, which
counterparts shall be construed together and have the same effect as if all of the Parties had
executed the same instrument.
8.14. Jurisdiction and Venue. Any action at law or in equity arising under this Agreement
or brought by a Party hereto for the purpose of enforcing,construing or determining the validity of
any provision of this Agreement shall be filed and tried in the Superior Court of the County of
Orange,State of California,or the United States District Court for the Central District of California,
Santa Ana Division,and the Parties hereto waive all provisions of law providing for the filing,
removal or change of venue to any other court.
8.15. Project as a Private Undertakinp. It is specifically understood and agreed by and
between the Parties hereto that the development of the Project is a private development,that neither
Party is acting as the agent of the other in any respect hereunder,and that each Party is an independent
contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No
partnership,joint venture or other association of any kind is formed by this Agreement. The only
111
relationship between City and Developer with respect to this Agreement is that of a government entity
regulating the development of private property and the developer of such property.
8.16. Further Actions and Instruments. Each of the Parties shall cooperate with and provide
reasonable assistance to the other to the extent contemplated hereunder in the performance of all
obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the
request of either Party at any time, the other Party shall promptly execute,with acknowledgment or
affidavit if reasonably required,and file or record such required instruments and writings and take any
actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to
fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by
this Agreement.
8.17. Koppel Certificate. Any Party hereunder,may at any time,deliver a written notice to
the other Party requesting such first Party to certify in writing that,to the best knowledge of the
certifying Party: (a)this Agreement is in full force and effect and a binding obligation of the Party;
(b)this Agreement has not been amended or modified either orally or in writing,or if so amended,
identifying the date and nature of the amendments to this Agreement, and, in each case,that the
Agreement remains in full force and effect(including as amended or modified if applicable), and a
continuing binding obligation of the Party; and(c)the requesting Party is not in default in
performance of its obligations set forth in the Agreement, or if the Party is in default, provide a
description of the nature of such default(s). A Party receiving a request hereunder shall execute and
return such certificate within thirty(30)calendar days following receipt thereof. The party to whom
such certificate is addressed, including any third party or Mortgagee, shall be entitled to rely on the
certificate. Developer shall pay to City all costs incurred by City in connection with the issuance of
estoppel certificates.
Regency_ruam_ lkvelopmenl Apreemenl_10-1}7015-oral -28-
Ordinance No. 1461 - Exhibit A
8. 8. Authority to Execute. The person or persons executing this Agreement on behalf of
each Party warrants and represents that he or she/they have the authority to execute this Agreement on
behalf of such Party and warrants and represents that he or she/they has/have the authority to bind
such Party to the performance of its obligations hereunder.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
Regency_Twlm _Dowlopmnrt Agrtemenl_10.13.2015.Ord -29-
Ordinance No. 1461 - Exhibit A
SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT
IN WITNESS WHEREOF,the Parties hereto have executed this Agreement on the day and year
set forth below.
"City"
City of Tustin, California
By: ,Mayor
ATTEST:
By:
Erica Rabe
City Clerk
Dated:
APPROVED AS TO FORM
Office on e City A'e e
By: tire. 1-'AtrAto-11r
David E.Kendig,Esq.
"Developer"
By: IC Tustin Legacy, LLC,
a Delaware limited liability company
By:
Name:
Its:
By:
Name:
Its:
1
Regenry_Twun__De elapment Agmemeoot_10-13-3015-cid S-1
Ordinance No. 1461 -Exhibit A
EXHIBIT"A"
TO DEVELOPMENT AGREEMENT
Legal Description of Property
LOTS I, X ANDY 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 CERTIFICATE OF CORRECTION RECORDED JULY 17, 2013
AS INSTRUMENT NO.2013000428385,OF OFFICIAL RECORDS OF SAID COUNTY.
•
•
EXHIBIT"A"
Regeocy_Toson _Develapmem Ageamml_10.15-1015-ord
-1-
Ordinance No. 1461 - Exhibit A
I EXHIBIT
"B.
VELOPMENT
AGREEMENT
Map showing Property and its
location
1
Regerc _y_Tustm [kselapmenl Aprament_10.13.2015.and EXHIBIT"B"
-I-
Ordinance No. 1461 - Exhibit A
DISPOSITION AREA IC EXHIBIT
PARR
1�t -,stf,
EXHIBIT"C"
TO DEVELOPMENT AGREEMENT
PUBLIC BENEFIT IMPROVEMENTS
As additional Public Benefits,Developer shall design and construct the following in accordance with
the requirements of the applicable conditions of approval.
I. The landscaping, including irrigation and laterals, within the existing Edinger Avenue median
along the project frontage to be consistent with the existing median landscaping located to the
west of Kensington Park Drive.
2. The portal entry element at the corner of Edinger Avenue and Kensington Park Drive and a
corner triangular-shaped community intersection treatment at Tustin Ranch Road and Valencia
Avenue.
3. Valencia Avenue: signing and striping modifications, design and construct the right turn lane and
driveways, median and sidewalks modifications, median landscape and irrigation system
modifications and parkway landscaping and irrigation system improvements.
4. Kensington Park Drive: signing and striping modifications, inclusive of striping modifications for
right turn lanes at driveways and two-way left-turn lane at driveway just north of Valencia
Avenue, design and construct the sidewalk, driveways, and parkway landscape and irrigation
system improvements.
111
5. Edinger Avenue: signing and striping modifications, design and construct the right turn lane,
driveway,sidewalk, and median and parkway landscape and irrigation system improvements.
6. Tustin Ranch Road: design and construct the landscape and irrigation system improvements along
Tustin Ranch Road slope and parkway to back of curb.
7. Traffic signal modification: design and construct the necessary traffic signal modifications at
Valencia Avenue / Kensington Park Drive intersection associated with proposed realignment of
traffic lanes. Subject to review/approval by the City, the modification of the traffic signal will
require replacement of the existing traffic signal pole on the northwest corner and may include
the relocation of the existing traffic signal pole located on the southwest corner.
8. Traffic signal modification: design and construct the necessary traffic signal modifications at
Kensington Park Drive I Georgia Street intersection associated with the construction of the
project site driveway. Subject to review/approval by the City, the traffic signal modification will
require the replacement of the existing traffic signal pole on the southwest corner and may
include the relocation of the existing traffic signal poles located on the northeast corner and
southwest corner.
9. Valencia Avenue project access driveways: restrict to right-turn in only near Tustin Ranch Road
and right-turn in, right-turn out and left-turn out near Kensington Park Drive.
10. Edinger Avenue project access driveway: restrict to right-turn in and right-turn out only.
1
Regency_Tum2_DevclopmeniAgreement_1a-13.2015.md EXHIBIT"C"
-I-
Ordinance No. 1461 - Exhibit A
I I. Kensington Park Drive unsignalized project access driveway: allow full access via installation of
two-way left-turn lane on Kensington Park Drive.
1
•
1
EXHIBIT"C"
Regency Tmlm_-_Dewlopment_Ageement_10-13-2015-ord
Ordinance No. 1461 - Exhibit A
EXHIBIT"D"
TO DEVELOPMENT AGREEMENT
EXISTING ENTITLEMENT APPROVALS
• Development Agreement(DA)2015-001
• Specific Plan Amendment (SPA)2015-002
• Concept Plan(CP)2015-003
• Subdivision(SUB)2015-03 /Tentative Parcel Map(TPM)2015-127
• Design Review(DR) 2015-014
• Conditional Use Permits (CUP)2015-11
o Acute Care/Rehabilitation Center
o Building M (15120 Kensington Park Drive)
• Conditional Use Permits(CUP)2015-12
o Drive-Thru
o Building D(15180 Kensington Park Drive)
• Conditional Use Permits(CUP)2015-13
o Drive-Thru
o Building E(15190 Kensington Park Drive)
• Conditional Use Permits(CUP)2015-14
o Drive-Thru
o Building H (15060 Kensington Park Drive)
• Conditional Use Permits(CUP)2015-15
o Drive-Thru
o Building 1—Alternate Use(15040 Kensington Park Drive)
• Conditional Use Permits(CUP)2015-16
o Master Sign Program
• Conditional Use Permits(CUP)2015-17
o School/Childcare Use
o Building A (15140 Kensington Park Drive)
• Conditional Use Permits(CUP)2015-23
o Shared/Reciprocal Parking. Medical Center
o Parcels 10, 11, 12 and 13
o Addresses: 15000, 15020, 15100 and 15120 Kensington Park Drive.
Regency_Tmtm_ necelocmcnt Agree+nent_10.134015-ord EXHIBIT"D"
Ordinance No. 1461 - Exhibit A