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HomeMy WebLinkAboutPH 1 E T SPECIFIC PLAN 10-22-86 ~ PUBLIC HEARING ~ ~ /~.~;~.~ NO. 1 r Inter- Corn DATE: OCTOBER 22, 1986 TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER ROBERT #. BALEN, PLANNING CONSULTANT PROPOSED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF TUSTIN AND THE IRVIRE COMPANY RELATING TO DEVELOPI4ENT OF THE EAST TUSTIN ~PF_CIFTC PLAN Pl~N.IF~.T AREA. RECOFN4ENDATION: After holding a public hearing, it is recommended that the City Council adopt Ordinance No. 978 adopting a Development Agreement between the City of Tustin and The Irvine Company for the East Tustin Specific Plan area. BACKGROUND: Upon approval of the East Tustin Specific Plan, the City Council made a requirement that prior to start of development that a Development Agreement be in place ensuring timely phasing of development projects and supporting infrastructure. The Development Agreement is an extension of the comprehensive planning process of the Specific Plan. As an implementing tool of the Specific Plan, the Development Agreement provides additional focus to and specific commitments to infrastructure requirements and implementation timing alluded to in the Specific Plan. Staff and the City Council have determined that a Development Agreement is the appropriate planning procedure necessary to meet the objectives of the East Tustin planning process. According to State Law and City Ordinance, the Planning Commission held a publicly noticed public hearing on the proposed Development Agreement on October 13, 1986. Two comments were expressed at the public hearing by two citizens. Community Development staff will be meeting with one individual to get his input into open space, recreational and baseball opportunities within the planning area. The other comment was from a representative of the Foothills Community Association giving support for the Development Agreement. The Planning Commission voted 4-0 to recommend approval of the Development Agreement and adoption of the Supplemental EIR to the City Council. ANALYSIS: A Development Agreement is an agreement between a city and developer whereby the city is ensured that the developer will proceed with development in an agreed upon manner and whereby the developer is ensured that the city will comply with initial project entitlements. The Development Agreement for the East Tustin Specific Plan specifies the permitted uses of the property, the density or intensity of those uses, the timing and nature of the infrastructure (e.g. roads, flood control, utilities, traffic mitigation), for each phase of development, and the financing methods that are available to fund the infrastructure. The Development Agreement is enforceable by either party according to State law. Ctty Counctl Report Development Agreement page t~o The term of the Development Agreement is for a period of fifteen years, with a five year extension allowable if agreed to by both parties. The Development Agreement includes a phasing schedule, Exhibit "D", tying the Irvine Company to providing circulation, drainage and flood control facilities consistent with the City's General Plan land use and facilities plans. This infrastructure would be constructed concurrent with or prior to development within each sector of the plan area. Park dedications, park improvements, golf course construction and certain development standards relating to hillside grading, residential development and mixed use development are also covered. In addition, a development phasing scheme is agreed to specifying the type of land use allowed in each phase to balance revenue generating uses to create an .overall surplus of revenues. The fiscal phasing plan will balance retail, residential, hotel and mixed uses to provide the City with an adequate level of revenue to support City services to the area. Other provisions of the Development Agreement are that fire protection facilities and other public facilities needed to support the area will be provided. Formation of' assessment and special tax districts is acknowledged as a valid mechanism to finance major public improvements. Section 2.9 on page 33 of the Development Agreement discusses these financing mechanisms. The Development Agreement is consistent with and meets the intent of the Specific Plan and the City Council's desire to have a phasing and implementation agreement. As an implemmenting tool of the Specific Plan, the Development Agreement covers all of the major public lmmprovements required as part of the Sp&ciftc Plan and Environmental Impact Report. The Supplemental EIR done for the Development Agreement covers impacts associated with the phasing and immplementation of these improvements. A separate report covers the SEIR and is attached. RECOI~ENDED ACTION: It is recommended that the City Council find that the Development Agreement is consistent with -the City's General Plan and the East Tustin Specific Plan and adopt Ordinance No. 978. RB:do Community Development Department 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDINANCE NO. 978 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN ADOPTING A DEVELOPMENT AGREEMENT (£XHIBIT A ATTACHED HERETO), AS DEFINED BY SECTION 65865.2 OF THE CALIFORNIA GOVERNMENT CODE, BETWEEN THE CITY OF TUSTIN AND THE IRVINE COMPANY PERTAINING TO DEVELOPMENT WITHIN THE EAST TUSTIN SPECIFIC PLAN PROJECT AREA. The City Council of the City of Tustin does herby ordain as follows: I. The City Council finds and determines as follows: A. That on April 7, 1986 the East Tusttn Specific Plan was adopted by the City Council. That prior to final adoption of the East Tustin Specific Plan, Environmental Impact Report 85-2 prepared in conjunction with the project was certified as final by the City Council. That as a required element of the East Tustin Specific Plan, a development agreement must be adopted by the City prior to authorization of any development within the project area. That a proposed Development Agreement has been submitted by The Irvlne Company pursuant to applicable provisions of state laws and local ordinances and with the concurrence of the City of Tustln. That a public hearing before the Planning Commission was duly called, noticed and held in consideration of the proposed Development Agreement. F. That the Planning Commission, by minute order has recommended to City Council adoption of the proposed Development Agreement. Ge That a public hearing before the City Council was duly called, noticed and held in consideration of the proposed Development Agreement. That a supplement to Final Environmental Impact Report {EIR) 85-2 has been prepared in conjunction with the proposed Developemnt Agreement and in conformance with applicable provisions of the California Environmental Quality Act Guidelines. That the Planning Commission by the adoption of Resolution No. 2367 recommended to City Council Certificaiton of Final EIR 85-2 as supplemented. That pursuant to the California Environmental Quality Act Final EIR 85-2 as revised by the SEIR, has been prepared, certified and considered which adequately addresses the general environmental setting of the proposed project, it significant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. 978 Page 2 Le environmental impacts, and the alternatives and mitigation measures related to each significant environmental effect for the proposed project. The City Council, having final approval authority over this project has reviewed and considered the information contained in Final EIR 85-2 as revised by the SEIR prior to approval of this project. Changes or alterations have been incorporated into the project which mitigate or avoid certain of the significant environmental effects thereof. Pursuant to Sections 15091 and 15092 of the State CEQA Guidelines all significant environmental effects and corresponding mitigation measures together with the requisite findings and facts related thereto have been comprehensively set forth in Attachment A to Resolution 86-28, and in Attachment A to Resolution 86-126, both of which are incorporated herein by this reference. Conditions have been' adopted as part of this project or will be incorporated at the appropriate level of development review which inforporates at the appropriate level of development review which incorporate all of the mitigation measures identified in the EIR and SEIR. The benefits of the project have been balanced and considered against its possible unavoidable environmental risks and against the project alternatives identified in the final environmental impact report and those benefits are found to be overriding, all as set forth in Attachment A to Resolution 86-28, and in Attachment A to Resolution 86-126, which are incorporated herein by this reference. That establishment and implementation of the plan as submitted, under the circumstances of this case, will not be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood of such proposed use, evidenced by the following findings. The residential and commercial development referenced within the proposed Development Agreement is consistent with the Tustin Area General Plan as amended and adopted. That residential and commercial development referenced within the proposed Development Agreement is consistent with the East Tustin Specific Plan as adopted. That the establishment, maintenance, and operation of the Development Agreement as submitted will not be injurious or detrimental to the property and improvements in the neighborhood of the subject property, nor to the general welfare of the City of Tustin, and should be approved. 1 2 3 4 5 6 7 8 9 10 11 12~ 14 15 17 18 20 21 22 23 2~ 25 27 28 Ordinance No. 978 Page 3 II. The Ctty Counc11 hereby adopts the Development Agreement as presented tn Exhibit "A" attached hereto. PASSED AND ADOPTED at a regular meetlng of the Tustin Ctty Council, held on the day of , 1986. DONALD J. SALTARELLI, Mayor ATTEST: MARY E. WYNN, City Clerk RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Tustin 300 Centennial Way Tustin, California 92680 NO CONSIDERATION NO RECORDING FEE PER GOVERNMENT CODE SECTION 6103 EAST TUSTIN DEVELOPMENT AGREEMENT Approved by Ordinance No. Adopted , 1986 Effective , 1986 EAST TUSTIN DEVELOPMENT AGREEMENT TABLE OF CONTENTS II RECITALS OF PREMISES, PURPOSE, AND INTENT DEVELOPER'S COMMITMENTS AND ASSURANCES TO CITY 1.1 Improvement Phasing 1.2 Dedications 1.3 Park Dedications and Improvements 1.4 Mixed Use and Commerical Acres 1.5 Schools 1.6 Golf Course 1.7 Residential Development 1.8 Hillside Grading Ordinance 1.9 Development Phasing and Fiscal Impact Review 1.10 Fire Protection Facility 1.11 Public Improvements Outside of East Tustin Area 1.12 Satisfaction of Provisions of Government Code Section 65915 COMMITMENTS TO DEVELOPER AND DEVELOPER ENTITLEMENTS 2.1 Permitted Uses 2.2 Heights and Sizes 2.3 Conditions 2.4 Subsequent Discretionary Action 2.5 Progress of Development 2.6 Environmental Review 2.7 Consistence with Laws in' Force 2.8 Integrated Project 2.9 .Cooperation in Funding A. Housing Bond Programs B. Assessment and Special Tax Districts III ADMINISTRATION 3.1 Annual Review 3.2 Notice of Non-Compliance 3.3 Modification or Termination 3.4 Amendment and Cancellation 3.5 Enforcement and Other Remedies Other Factors Relating to Developer's Performance 1-7 7 7-8 8 9-10 10 10-11 11 11 11-12 12-19 19-22 22-27 27-28 28 28-29 29 29-30 30-31 31 31-32 32 32-33 33 33 33 33 33-35 35-36 36-37 37-38 38-39 39 IV GENERAL PROVISIONS 4.1 Te&~l~ 4.2 Hold Ha=mless and Defense 4.3 Notices 4.4 Assignment 4.5 Binding Effect of Agreement 4.6 Time is of the Essence 4.7 Waivers 4.8 Relationship.of the Parties 4.9 Developer's Insurance 4.30 Specific Performance 39 39 39 40-41 41 41 41 41-42 42 42-43 43 EXHIBITS Designation A B C D E F Description Real Property Description Real Property Delineation Specific Plan Phasing Schedule School Agreement Hoffman Report Page Reference 1 1 1 8 10 12 ii EXHmBmT$ Designation A C D E F Description Real Propert~ Description Real Property Delineation Specific Plan Phasing Schedule School Agreemen% Hoffman Report Page Reference 1 1 1 8 10 12 WHEN RECORDED RETURN TO: (Space above this line for Recorder's use only) DEVELOPMENT AGREEMENT THIS AGREEMENT' is' entered into this day of · 1986, by and between The Irvine Company, a Michigan corporation ("Developer"), and the City of Tustin, a California municipal corporation ("City"), hereinafter sometimes referred to individually as "Party" and collectively as "Parties." RECITALS A. This Agreement concerns all of that real property described in Exhibit "A" hereto and delineated on Exhibit "B" hereto, which description and delineation are incorporated herein by this reference (the "Property"). Developer is the fee owner of the Property, and desires to develop the Property consistent with the provisions of the East Tustin Specific Plan adopted by City on March 17, 1986 (the "Specific.Plan"), which Specific Plan is attached hereto as Exhibit "C" and incorporated herein by this reference. B. The Property is one of the last large undeveloped areas of the City. Due to its size and location, planned development of the Property consistent with the Specific Plan and the City's fiscal goals is of vital concern to City and to City's goal of being a balanced community, as reflected in its General Plan. It is intended that development of the Property in accordance with the Specific Plan and this Agreement provide the City with ade- quate controls over the fiscal and land use impacts of develop- ment of the Property to avoid the fiscal and planning problems associated with piecemeal.development. C. Some of the public improvements and dedications to be provided as a part of the Specific Plan, while necessary to serve the private development of the Property, are also needed to serve the ultimate development and completion of the City according to its General Plan, and of adjoining areas. Given the regional significance of some of these public improvements, the City desires to obtain and the Developer is willing to assist in providing these public improvements as a part of the Specific Plan in early phases of the development of the Property, through the formation of Assessment Districts and other financing vehicles acceptable to Developer and City, prior to the time they would otherwise be required to serve the private development portions of the Specific Plan, and therefore prior to the time when the Developer would otherwise be legally entitled to com- plete the private development portions of the Specific Plan that alone justify the expense of such public improvements. The Developer is also willing to assist in providing public improve- ments whose capacities exceed the needs created solely by the development of the Property. The Developer is willing to assist in providing these public improvements earlier than otherwise required for its private development.of the Property, and to ultimate sizes, only upon the assurance of the City that the Developer will be able to complete its private development at least at the total density and intensity of use set forth in the Specific Plan. In this respect, the public improvements and dedications called for as part of the Specific Plan, together with the private development portions at the ultimate density and intensity of use-set forth in the Specific Plan, are dependent on one another, and together comprise an indivisible project (the "Project"). D. 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 of Tustin, and the phased development and completion of the Project in accordance with the Specific Plan. 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 buffered land uses to include industrial, commercial, professional, multi-family and single- family development." E. The Specific Plan and the development under the Speci- fic 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 dis- courage Developer participation in the comprehensive traffic, drainage, and other public improvements in the.Specific Plan. The Developer's participation in the implementation of the Speci- fic Plan through this Agreement and, among other things, through participation in assessment districts to finance the public improvements required by the Specific Plan, will result in a number of public benefits. These benefits include, among others: 1. Securing phased completion of the public. improvements and accomplishment of the dedication portions of the Specific Plan; 2. Assuring adequate funding and dedication for the public improvements required by the Specific Plan; 3. Clarifying the respective responsibilities of the City and the Developer for implementation of those public improvements and dedications, which clari- fication is needed to provide a basis for the City's fiscal planning; and 4. Providing a program for monitoring and controlling the impacts of the Project on the City's fiscal resources, so that the phased development of the Property and the completion of the Project will not result in a negative fiscal impact to the City. These public 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 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 long-term commitment to implement 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 land does not obtain a vested right to improve land until the issuance of a building permit for the improvements and commencement of substantial construction pur- suant to that permit. The result is a disincen- tive for landowners to invest monies in the early completion of major infrastructure and other pub- lic improvements as part of any project or in early comprehensive plannin~ and design studies. 2. Development under the Specific Plan requires a substantial early investment of money and planning and design effort by Developer. Uncertainty about the City's land use policies, rules and regulations could result in a waste of private resources, escalate the cost of required public improvements, and escalate costs of proposed housing and other 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 the Developer that, in return for the Developer's commitment to the comprehensive planning for the Property that is the Specific Plan, the City will in turn remain committed to the Specific Plan; 2. Assurances to the Developer that as the Developer becomes obligated for the costs of designing and constructing the public 'improvements included in the Specific Plan, and makes dedications, the Developer will become entitled to complete the private development portions of the Specific Plan that 3ustify those obligations; and 3. Assurances to the Developer that in the City's administration of the Specific Plan, the Developer will be allowed the flexibility, consistent with the Specific Plan, required for it to respond to the marketplace in terms of housing types and intensities, the development of mixed uses, and reconfiguration of land uses, so long as in so doing the overall intensity and density of devel- opment, and the range of uses within sectors iden- tified in the Specific Plan are not exceeded. These assurances 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 Specific Plan. H. California Government Code Sections 65864 et seq. authorize 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 described in Paragraph E above, and Developer wishes to enter into a development agreement with City to avoid the development risks and uncertainties and to obtain the assur- ances described in Paragraphs F and G above. I. Pursuant to the authorization set forth in California Government Code Sections 65864 et seq., City adopted Ordinance No. 923, Section 1, establishing procedures and requirements for consideration and execution of Development Agreements by City. In accordance with such procedures and requirements, as set forth in Tustin City Code Sections 9600'-9617, City has undertaken the necessary proceedings, has found and determined that this Agree- ment is consistent with City's General Plan and the Specific Plan, and has adopted Ordinance No. __approving this Agree- ment, which Ordinance became effective on , 1986. AGREEMENT NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereafter contained, and for the purposes stated above, City and Developer hereby agree as follows: I DEVELOPER'S COMMITMENTS AND ASSURANCES TO CITY 1.1 ~provement Phasiqt. The circulation system improvements shown on the "Circulation Plan" of the Specific Plan, and the drainage and flood control facilities shown on the "Drainage and Flood Control Plan" of the Specific Plan (hereinafter collectively known as the "major public improvements") shall be provided in accordance with the phasing schedule attached as Exhibit "D" hereto, to the design and capacity standards specified in the Specific Plan. Developer agrees that completion of the major public improvements will be accomplished to the satisfaction of the City in accordance with adopted City standards, and will be financed by assessment dis- trict(s), other public financing (without cost to City or to property, businesses or homeowners within the present corporate limits of City not included within Tract NO. 12345, Parcel Map No. 84-1032, or the Property), or by Developer. Construction of all other arterial highways within the Specific Plan area shall precede or be constructed concurrently with all residential con- struction within 1,000 feet of the subject roads. 1.2 Dedication~. Ail public improvements completed by Developer under the "Agreement for Payment of Costs for Infra- structure Improvements, East Tustin Assessment District 85-1", between City and Developer dated April 30, 1986, as amended and/or supplemented and/or replaced by other such agreements, shall be dedicated and accepted by City in accordance with the provisions of that Agreement. Ail other public improvements constructed by Developer that are ultimately to be owned and maintained by the City or by some other public agency or entity shall be dedicated to the City, or such other public agency or entity upon completion and acceptance by City or other public agency. 8 1.3 Park Dedications and Improvements. A. AS provided in the Agreement in Satisfaction of Parkland Dedication Conditions: for Tentative Tract No. 12345, dated as of May 25, 1986, ("Park- land Agreement") between Developer and City, Developer shall be required to dedicate land for community park purposes in Sector 11 of the Speci- fic Plan area. Developer's excess parkland dedi- cations for neighborhood park purposes, if any, as determined in accordance with the Parkland Agree- ment, will be credited to subsequent builder ten- tative tract maps within the Specific Plan Area, as a partial park dedication credit. The numbers of acres allowed as a credit shall be determined in accordance with City Ordinances in effect on the effective date of this Agreement. B. Developer agrees that dedications and improvements for park purposes within the Specific Plan area shall be as prescribed in the Specific Plan and ordinances applicable thereto in effect on the effective date of this Agreement. C. Developer acknowledges that if the County of Orange ("County") decides to create the proposed Peters Canyon Regional Park (the "Park"), its acreage, location, design, access and facilities are of importance to City. Developer therefore agrees that it shall not dedicate land within the City for the Park to the County until Developer has reached an agreement with the County accept- able to the City regarding City involvement in the park planning, access and development. 1.4 Mixed Use and Commercial Acres. The fiscal integrity of the development of East Tustin is a crucial issue to City. Of paramount importance is the City's desire to maintain a level of service to East Tustin consistent with that provided to the balance of the City. To assist in achieving this goal, Developer agrees that in Sector 12 of the Specific Plan Area des±gnated as "Mixed Use", a minimum of 70 gross acres shall be developed for retail/commercial uses. In addition, a hotel shall be con- structed with a minimum of 250 rooms and with customary support- ing facilities, and, if proposed by Developer to be built in more than one phase, such phasing shall be as approved by City. 1.5 Schools. In accordance with the School Facilities Agreement between the Developer and the Tustin Unified School District dated January 27, 1986, and amended as of March 12, 1986, attached hereto as Exhibit "E" (the "School Agreement"), the Developer shall make provision f6r up to eight school sites in the Pro3ect, as provided in the Specific Plan, and shall comply with the provisions of the School Agreement. Prior to the time that tentative residential subdivision maps are approved for Sectors 2, 3, 7, 8, 10 or 11 of the Specific Plan, the need for the potential school site shown in the Specific Plan for that Sector to serve students of the Specific Plan area shall be determined pursuant to the School Agreement and, if needed to serve those students, the precise location of that site shall 10 also be determined. In determining the precise locations for these new school sites, and the amount of land that will be reserv.ed for each site, the City will give due consideration, consistent with the Recreation Element of its General Plan, to locations adjacent to City parks and to the joint use by the Tustin Unified School District of adjacent City parks for school recreation facilities. 1.6 Golf Course. The Project shall include an eighteen- hole golf course, open to the public, of at least 150 acres in size generally in the area indicated as the conceptual location the Specific Plan. Customary ancillary improvements, such as club house, pro shop, restaurant, and cart storage facility, shall be permitted, consistent with the Specific Plan. Prior to construction, Developer shall submit a report detailing the ownership, planned operation of the course, design and layout and proposed facilities to serve the course. 1.7 Residential Development. Only single family detached residential units shall be constructed in the estate, iow and medium iow density residential land use categories. In all other residential land use categories, single-family attached and detached residential units shall be permitted, and apartment projects shall be allowed subject to conditional use permit. 1.8 Hillside Grading Ordinance. Notwithstanding Sections 2.3 and 2.4 below, development of the hillside district areas of the Specific Plan shall be sub3ect to any hillside grading ordi- nance that is adopted by the City subsequent to the execution of this Agreement. City shall diligently proceed with the prepara- tion and adoption of the hillside grading ordinance. Developer 11 agrees to work and cooperate with City in the preparation of a hillside grading ordinance'and to that end, Developer agrees to bear the reasonable costs, not to exceed $25,000, without prior written approval of Developer, for the preparation of the hill- side grading ordinance. Any subsequently adopted hillside grad- ing ordinance shall be consistent with accepted engineering practices and standards and shall be in conformance with the Hillside District Guidelines in the Specific Plan except insofar as inconsistent with accepted engineering practices and stand- ards. 1.9 Development Phasing and Fiscal Impact Review. A. The overall fiscal impact of development of the EaSt Tustin area, which includes the Property, Tract No. 12345 and Parcel Map No. 84-1032 (all of which comprise the "Fiscal Plan Area"), is of substantial conce=~ to the City. As a part of the planning process for the Fiscal Plan-Area, a fis- cal impact analysis (Hoffman Report attached here- to as Exhibit F) was conducted for the purpose of evaluating the plan of development to determine that it would not be likely to result in any substantial negative fiscal impact to City during the assumed phasing or at the completion of that development. Cumulatively, the development phasing plan as evaluated in the Hoffman Report projects fifteen (15) percent excess of revenues over costs, although some years are somewhat below the 12 fifteen (15) percent figure. These projected excess revenues provide greater assurance that the City will be protected as fully as possible from unanticipated adverse financial impacts in the future. It is the intent of the phasing plan to balance the development of uses which are net revenue generators in the Fiscal Plan Area with development of uses that create costs of City services in excess of revenues to City so that an overall surplus of revenues over costs is achieved. The phasing plan for the Fiscal Plan Area, which has been tested and validated by the Hoffman Report, is as follows: 13 DWELLING UNITS 955 740 1,095 1,303 1,273 1,192 1,212 339 336 187 188 180 9,000 EAST TUSTIN PHASING PLAN CUM. CUM. AUTO DWELLING SQ. FT. RETAIL CENTER HOTEL UNITS RETAIL SQ. FT. DEALERS* ROOMS 955 1,695 2790 4,093 5366 6558 7770 8 109 8 445 8 632 8820 9 000 0 3 0 4 0 2 400,000 400,00~ 400,000 800,000 0 250 0 0 0 0 80,000 880,000 0 0 0 220,000 1,100,000 0 0 0 0 0 1,100,000 10 250 B. The above phasing plan is hereby established as the Approved Phasing Plan and satisfies the fiscal phasing requirements for the Fiscal Plan Area, except as provided in Section 1.9D and E. The cumulative number of residential' units for which certificates of occupancy may be issued shall not exceed the corresponding cumulative total or square footage of occupied revenue generating uses (retail, auto, hotel) or their equivalents, speci- lied in the Approved Phasing Plan. For example, upon occupancy of nine auto center dealers, occu- pancy permits may be issued for up to 4,093 dwell- An Auto Center dealership is a single owner br business that engages in the sale of at least one type of vehicle. Under this Agreement, in order for a single owner or business to qualify for more than one auto center dealership, it must engage in the sale of more than one vehicle type, and the total annual anticipated sales for all dealers (counting such single owner as two or more dealers)must average $10,900,000 per dealership, or more, in 1985 dollars. 14 Co ing units. For the revenue generating uses, the determination of occupancy will be: certificate of occupancy for a non-speculative development (i.e., one that is pre-leased or pre-sold); a total of fifty (50) percent actual occupancy of gross floor area for a speculative project (i.e.,) one that is not pre-leased or pre-sold). At the discretion of the Developer, retail square footage, auto dealers, and hotel rooms of equal revenue may be interchanged at any period according to the following formula: 1,000 square feet of retail = .967 hotel rooms or .0135 auto dealers; 1 hotel room = .0139 auto dealers or 1,034 square feet of retail; 1 auto dealer = 71.81 hotel rooms or 74,251 square feet of retail. An entire revenue use as shown in the Approved Phas- ing Plan and as indicated in Section 3.8.2 of the Specific Plan cannot be eliminated through the application of this formula without an amendment to the Specific Plan. The City will monitor performance of the-Approved Phasing Plan in conjunction with the annual re- views provided in Section 3.1 of this Agreement. If development is proceeding in compliance with 15 DJ the Approved Phasing Plan, the City shall find that the Developer has met the fiscal phasing requirements of this Agreement, unless a substan- tial event occurs, as described in 1.PD. It is acknowledged that while the Hoffman Report projects a positive, fiscal balance for the Fiscal Plan Area, the City cannot itself secure the 15 -A revenues to be received from the Fiscal Plan Area, and the costs of services to the Fiscal Plan Area may be adversely impacted by a significant ~nfore- seen event outside the City's control and not considered in the Hoffman Report (such as, but not limited to, a change in State or Federal law or mandate of a State or Federal court, but not such anticipated events as inflation which is contem- plated in the Hoffman Report, including by its reference to constant 1985-86 dollars). There- fore, if because of a significant unforeseen event outside of the City's control and not considered in the ~offman Report, and after testing through the use of the fiscal model and assumptions set forth in the Hoffman Report adjusted for such significant unforeseen event, the City determines that the ratio of revenues to costs for the Fiscal Plan Area is less than one to one (a "Fiscal Deficit") because either (i) the revenues being received from the Fiscal Plan Area are signifi- cantly less than the revenues projected by the ~offman Report, or (ii) the costs of services provided to the Fiscal Plan Area are higher than projected in the ~offman Report, then City shall provide written notice to Developer, along with supporting data, that City may decide that it is necessary to withhold approval of tentative maps based upon such Fiscal Deficit. Notice shall be 16 provided 60 days in advance of any City action to withhold tentative map approvals to provide time for Developer to review City's data and method- ology and for the parties to begin negotiations under 1.gE below. Developer shall have the right to respond in writing and/or orally at the City Council meeting wherein the proposed action will be considered. Sixty days following its notice to Developer, City may determine in the reasonable exercise of its discretion to withhold or delay further approvals of proposed tentative maps based on its determination that City is experiencing a Fiscal Deficit due to such events, that no solu- tion to the Fiscal Deficit has been identified through negotiations under Section 1.gE, and that the developments proposed at that time will not eliminate the Fiscal Deficit. Such withholding or delaying may continue until a solution to the Fiscal Deficit is identified and implemented. In t. he event there is a determination by the City that there is a Fiscal Deficit under Section 1.gD, City and t_he Developer shall enter into good faith negotiations to eliminate the Fiscal Deficit. The intent of these negotiations is to identify a way to formulate a program to eliminate the Fiscal Deficit and allow development of the Specific Plan to proceed. Until such time as City and Developer have reached agreement on how to eliminate ~he Fiscal Deficit, City may withold tentative map approvals for the Property. The good faith nego- tiations shall address the following: 1. The permanence of the revenue changes. 2. The short-term and long-term revenue and cost impacts to the City. 3. Proposed adjustments to the Specific Plan and the Approved Phasing Plan that will eliminate short-term and long-term adverse revenue impacts to the City as related to the Fiscal Plan Area. The goal of the negotiations shall be to achieve the percentage of excess revenues over costs pro- jected in the Hoffman Report. The minimum acceptable level of achievement shall be a ratio of revenues to costs of one to one as measured by the Hoffman Report model. In regard to the adjustments outlined in 1.gE, the City and the Developer agree to seek to increase the revenues and/or decrease the costs in order to eliminate the Fiscal Deficit by taking one or more of the following actions: 1. A change in the phasing of residential or commercial developments as identified in the Approved Phasing Plan, which change may result in an Amended Approved Phasing Plan; 2. An increase in the scope of revenue generat- ing uses in the Fiscal Plan Area. The. in- 18 crease in revenue uses shall be restricted to commercially zoned or mixed use areas. If these areas have been fully developed, resi- dential areas shall be considered. Any con- sideration of residential areas will require an amendment to the Specific Plan, and any transfer of residential units will be subject to the requirements and limitations of the Specific Plan. Areas designated as low den- sity or estate density shall ~ot be subse- quently used for' commercial uses; and/or 3. The Developer, at its discretion, may identi- fy and commit to alternative revenue sources to make up for any shortfall in revenues created by the unforeseen event. 4. The City at its discretion may make downward adjustments in levels of service provided, 5. The City at its discretion may identify addi- tional sources of revenue including but not limited to service districts, user fees, etc. 1.10 ~ ~ ~. The City has determined the need for an additional fire protection facility to serve the East Tustin area (consisting of the land included in the Property, Trac~ No. 12345, and Parcel No. 84-10321). Developer shall make available to City without cost to City a parcel of land (not =o exceed one acre in area) adequate to support a facility of 8,000 square feet. Developer shall provide for the construction of that facility per City standards and the acquisition of a new engine-pumper for that facility at total costs not to exceed $1.3 million in 1986 dollars, excluding land. Acquisition of the land and engine-pumper and construction of the fire facility may be financed through the formation of a Mello-Roos district or other similar assessment or special tax district, or through fee pro- grams as may be adopted by the City, payable upon issuance of building permits, to finance such acquisition and construction or, if no similar financing method is approved by City, by Developer dedication of that parcel and by Developer advancing the funds for such construction and acquisition directly to the City, or by a combination of the foregoing, as reasonably deter- mined by the City after consultation between the City and the Developer. In the event that the City and Developer determine that the provisions of the fire protection facility should and can be financed through the imposition of a fee payable upon issuance of a building permit, and the total amount of such fees held by the City at the time the fire protection facility is needed are not sufficient to pay for such acquisition and con- struction, then the Developer shall advance to the City such additional funds as may be needed for that acquisition and con- struction, subject to reimbursement from any such fees subse- quently collected. The total of such fees and advances shall not exceed the acreage and dollar limit established in this Section. 2O The City shall proceed expeditiously to complete the con- struction of that facility and the acquisition of the engine- pumper, once the land and the funds for such construction and acquisition are available, so as not to delay the construction and occupancy of any buildings in the East Tustin area. The City agrees that a facility consisting of 8,000 square feet con- structed on one acre or less of land and housing a single engine- pumper will satisfy all of the requirements for fire protection to serve the East Tustin Area. Nothing in this Agreement shall preclude City from determining that the facility can and should serve additional territory outside of the East Tustin area. At City's discretion the facility may be enlarged, but without additional cost to Developer, unless such enlargement is at Developer's request and upon subsequent agreement between City and Developer. If the Developer dedicates the parcel of land for fire protection facility to City, the instrument of conveyance for the parcel of land for the fire protection facility shall include language clearly specifying that such dedicated land shall be /// /// /// /// /// /// /// /// /// 21 used for fire protection facility purposes only, and that if a fire protection facility is not constructed on the dedicated land within a three-year time period, the land shall be returned to the Developer. 1.11 Public Improvements Outside of East Tustin Area. A. Environmental Impact Report 85-2 identified that the development of the Property under the Specific Plan will have an impact on Irvine Boulevard, determined at thirty (30) percent of the total traffic impact. The Developer shall be respon- sible for and shall contribute a fair-share por- tion of funds required for the widening of Irvine Boulevard to a six-lane Primary Highway status. The Developer's fair share contribution shall not exceed thirty (30) percent of the actual con- struction and right-of-way acquisition costs at the time of construction award and-commencement; provided, however, that in no event shall such contribution exceed S300,000 adjusted for infla- tion. The required improvements to Irvine Boule- vard include restriping the right-of-way to a six- lane prima=y, and the acquisition of approximately five properties and improvements to the right-of- way for these properties. The contribution by Developer shall be paid at the time of building permit issuance and shall be pro-rated based on an estimate developed by the City Engineer. This figure may, at City's discre- 22 rich, be updated yearly due to the effects of inflation. The monies received by City sh~ll be ~eposited into an interest-bearing account until such time as monies are required for the widening project. If a contract for the Irvine Boulevard widen- ing project is awarded by the City 9riot to the termination of this Agreement, the Developer shall pay on demand, .prior to or concurrent with the award, the full amount of its fair share portion of funds, as described above, required for the project. The full amount shall be determined by Subtracting the funds available to City from out- side sources, e.g.F.A.U, funding, etc., for this project, and any funds collected at the time of issuance of building permits from the total amount of monies of the awarded contract attributed to the Specific Plan impact. At the point in time that the Developer pays this full amount, no fur- ther contribution for this widening project shall be required at time of building permit issuance. If the subject project is not commenced with- in the term of this Agreement, all unused monies collected from Developer for such project shall be returned to Developer. In order to serve development in the East Tustin area, the City wiil need tO hire additional persoD_nel, Which in turn will contribute to the 23 City's need to expand its existing Civic Center facilities. The City has determined that the East Tustin area's contribution to the need for expan- sion of the City's existing Civic Center facili- ties, and therefore the Developer's fair share contribution to the costs of that expansion, is and shall be the lesser of forty percent (40%) of the total construction costs of that expansion, or $2,000,000.00 (adjusted for increases or decreases in costs of construction from the date hereof until made, as computed by reference to the con- struction cost index over the same time period) (the "Developer's Contribution"). Upon sixty days' prior written demand by the City and based upon the City's reasonable determi- nation of the need therefor, the Developer shall deliver to the City a letter of credit in the amount of $2,000,000.00 (adjusted for increases or decreases in costs of construction from the date hereof to the date the letter of credit is pro- vided, as computed by reference to the construc- tion cost index over the same period) to secure payment of the Developer's Contribution. After such a call for a letter of credit City shall proceed expeditiously with the planning, design and improvement of the Civic Center improvements. The amount of any letter of credit delivered to and held by the City pursuant to this section 24 shall be adjusted for increases or decreases in the costs of construction on each anniversary of the date of the original deliver~. The City and the Developer agree that the Developer's Contribution may with approval of City be made through the City's formation, and the Developer's cooperation in the formation, of a Mello-Roos special tax district encompassing the Property or portions thereof, and the sale or issuance of bonds or other debt or participation instruments by that district which will yield to the City net proceeds equal to the Developer's Contribution. Upon the formation of such a district or other financing vehicle agreed to by City and City's receipt of the funds required for such project, any letter of credit then being held by the City shall be released and returned to the Developer, and the Developer shall thereafter be relieved of any obligation to thereafter deliver any such letter of credit to the City, and any further obligation to make the Developer's Contri- bution except through participation in the dis- . trict or other financing vehicle agreed to by ci . In the event that in order to commence the construction for the expansion of the Civic Center 25 facilities the City requires the Developer's Con- tribution prior to the time that any district has been formed and bonds or other debt or participa- tion instruments have been sold or issued, it is agreed that the City will, if determined by City to be feasible, independently obtain financing which does not involve assessments on property in the East Tustin area for the Developer's Contribu- tion, from such other financing sources as then may be available to the City as. part of the City's financing of the total costs of constructing that expansion, and that the City shall only be entit- led to make periodic demands against the letter of credit and the Developer in such amounts as may be required to service the principal and interest payments that are otherwise incurred by the City in so financing the Developer's Contribution as a part of the total financing of the expansion con- struction. Any such draws against the letter of credit and/or payments in lieu thereof by Devel- oper shall be reimbursed upon the receipt by City of any proceeds from the sale or issuance of bonds or other debt which are based on assessments upon property in the East Tustin Area. It is further agreed that the City shall give the Developer reasonable prior written notice of the amount of any such principal and interest payments that will become due, and an opportunity to make those pay- 26 merits, prior to the time the City makes any demands or draws against the letter of credit. Notwithstanding the foregoing, either the City or the Developer may propose an alternative to the formation of a Mello-Roos special tax dis- trict as an alternative method for financing the Developer's Contribution, which alternative shall be considered by the other party in good faith, and if agreed to by the City and Developer such alternative will be substituted for the Mello-Roos special tax district as the financing method. The parties agree not to unreasonably refuse to agree upon any such alternative financing method. 1.12 Satisfaction of Provisions of Government Code Section 65915. The Specific Plan permits Developer to construct a' wide variety of residential units, including apartments, and allows for a range of residential land use densities, including medium high density that together offer Developer the flexibility, in its discretion consistent with construction financing, 'to provide housing in a mix of price ranges, including housing that may be affordable to persons of low and moderate income. Developer agrees that the City has provided adequate incentives in the Specific Plan for the development of housing pursuant to Govern- ment Code Section 6§g15, if Developer so elects, although Devel- oper has not agreed to construct nor will be required to con- struct any percentage or number of units as described in Govern- ment Code Section 6591§(a). Developer is fully aware of the 27 provi~ions of Government Code Section 65915 and Developer hereby waives all rights and benefits which Developer may have under the statute to assert that the City may be required to provide any additional incentives for residential development of the Property consistent with the Specific Plan. II COMMITMENTS TO DEVELOPER AND DEVELOPER ENTITLEMENTS 2.1 Permitted Uses. The permitted uses of the Property, and the intensity and density of such uses for the term of this Agreement, shall be as provided in the Specific Plan and this Agreement. As a standard governing the exercise of the City's discretion to issue conditional use permits for the construction of apartment projects under the Specific Plan, the City agrees that the Developer will be allowed to construct apartment pro- jeots in the medium high and medium density areas of the Property totalling 25% of the total allowable number of dwelling units in the Specific Plan and Tract No. 12345. The City recognizes that, given the size of the Property and the length of time it will take to complete development of the Property, Developer may decide to propose adjustments in terms of the precise boundaries of the Sectors and subsectors, the precise location of roads, parks, and other public use areas to be dedicated, the precise location of the golf course, and, subject to the density limita- tions of the Specific Plan, the precise densities of development as distributed in the various Sectors and subsectors described in the Specific Plan. For purposes of this provision, therefore, the City agrees to cooperate with Developer in any such proposed adjustments, so long as: 28 A. The permitted uses, and the ultimate density and intensity of such uses for the Property overall, are consistent with the ultimate uses and densi- ties contained in the Specific Plan as currently approved and contained in this Agreement~ B. The environmental impacts are within the limits identified in EIR No. 85-2 and the Su991ement thereto~ and C. The adjustments would not, in the sole exercise of City's discretion, be inconsistent with the pro- visions of Section 1.9 herein. No change, modifi- cation, revision or alteration may be made in the Specific Plan withoUt review and approval by those agencies of City whose approval is currently required under the existing rules, ordinances and procedures of City. A change, modification, revision or alteration in the Specific Plan shall not be effective as to Developer without the 9riot express written approval of City and Developer. 2.2 Heights and Sizes. The maximum allowable size and height of all buildings constructed on the Property shall be as provided in Section No. 3 of the Specifio Plan and shall not violate the terms of the Browning Corridor Agreement among Developer, City, CiTy of Irvine and the United States of America. 2.3 Conditions. For the term of this Agreement, the condi- tions, terms, restrictions and requirements for any subsequent discretionary actions by City concerning the development of the 29 Property shall be as set forth in this Agreement and as set forth in the Tustin City Code as currently in force, as applied through the Specific Plan. City may increase the amount of fees'applic- able to the development of the Property so long as the amount of the increase corresponds to the costs of services, labor or materials for which the fee is collected. Fees'for permits and development processing shall be those in effect at the time payment is required. This section shall not be construed to limit the authority of the City to charge processing fees for land use approvals, building permits, and other similar permits and entitlements either currently in force and effect or as established in accordance with Government Code Section 65456. 2.4 Subsequent Discretionary Action. Except as provided in this Agreement, any subsequent discretionary actions by City for development of the Property for the term of this Agreement shall be governed only by those rules, regulations and official policies governing design, improvement and construction standards and specifications in force at the time of the execution of this Agreement, except as they may be modified by changes in uniform codes. It is understood that City may apply rules, regulations and policies of general application adopted after execution of this Agreement in subsequent discretionary actions, if any, applicable to the Property, but only to the extent permitted by law, and then only to the extent that such new rules, regulations and policies do not conflict with currently existing rules, regulations and policies, and this Agreement. City agrees that any moratorium on the issuance or approval of any permits or the approval of any subdivision maps shall be inconsistent herewith. 30 This provision regarding limitations on the imposition of mora- torium shall not be construed to limit actions by City pursuant to the provisions of Section 1.9(D) and (E) herein. This Development Agreement shall not prevent the City from denying or conditionally approving any subsequent development project appli- cation submitted for other real property which is not related to the Property or this Development Agreement on the basis of exist- ing or new rules, regulations and policies. In the event that any subsequent' change in the laws or regulations of a federal or state agency prevents or preclude~ compliance with one or more provisions of this Development Agreement, such provision shall be modified or suspended only to the extent necessary to comply with such new federal or state law or regulation. 2.5 Progress of Development. Developer represents that it intends to pursue development of the Property in accordance with this Agreement with reasonable diligence as it deems appropriate in its sound business Judgment, in light of market conditions and internal business needs, and agrees that it shall not unreasonably de.lay pursuing such development of the Property. City agrees to cooperate with Developer to accomplish this intent. 2.6 Environmental Review. In approving the Specific Plan and entering into this Agreement, the City as lead agency has reviewed and considered the potential adverse environmental impacts related to the Specific Plan, including the potential future infrastructure and utility needs of the development of the Property, such as the potential demands the development will make 31 on local and regional streets and highways, water capacity and water lines, sewer capacity and sewer lines, and storm drainage systems, and related ener~ consez-vation, traffic, noise, and air quality impacts. The City has further reviewed and considered projected future regional and cumulative infrastructure and utility demands that will compete with the Specific Plan for available capacities and cumulatively add to potential adverse impacts. After assessing these and other potential adverse environmental impacts associated with the Specific Plan, the City has imposed mitigation measures as a part of the Specific Plan and this Agreement, including, among other things, requiring that the Developer commit to contributing at least its full, fairly allocated share of the costs and dedications for providing traf- fic capacities prior to full and final completion and occupancy of the private development allowed under the Specific Plan. 2.7 Consistency With Laws in Force. City finds, based upon all information available to the City prior to or concurrently with the execution of this Agreement, that there are no rules, regulations, ordinances, statutes, or official policies of, or applicable to, the City in force as of the date of execution of this Agreement that would prohibit or prevent the full completion and occupancy of the private development allowed by the Specific Plan, at the uses, densities, intensities, designs and heights, and as agreed to herein. 2.8 Integrated Project. City acknowledges that the public improvement and private development portions of the Specific Plan are intended to constitute a single, integrated Development 32 Project, that each component of the Project is intended to be related to completion of each other component, and that the viability of each component of the Project is intended to be dependent upon completion of each other component to achieve the full performance of this Development Agreement. 2.9 Cooperation in Funding. A. ~R~A~t. Bond mrp~rams. The City agrees to cooperate with Developer in participation in the housing bond programs of the County of Orange to assist in the financing of housing development in the Project. B. Assessment and Special Tax Districts. The City shall process all applications by the Developer for formation of assessment districts or special tax districts to finance any of the major public improvements and, to the extent feasible, in the exercise of the City's discretion, shall cause such districts to be formed. The City shall coopera~e in the formation of any special tax district by the Tustin Unified School District to finance the acquisition of new school sites or the construction of new schools in the Project. III ADMINISTRATION 3.1 Annual Review. A. The City Council shall review Developer's per- formance under this Agreement at least every 33 twelve (12) months from the date this Agreement is entered into until expiration of the term of the Agreement. In connection with such review, both City and Developer shall have a reasonable oppor- tunity to assert matters which either believes have not been undertaken in accordance with this Agreement, to explain the basis for such asser- tion, and to receive from the other party a Justi- fication of its position on such matters. The Director of Community Development shall give the Developer or successor in interest thereto at least sixty (60) days' advance notice of the time at which the City Council will review the Agree- ment. The City Council may refer the matter to the Planning Commission for further proceedings or for a report and recommendation. The Developer or successor in interest thereto shall demonstrate good faith compliance with the terms of this Agreement and shall furnish evidence of good faith compliance, as the City, in the reasonable exercise of its discretion, may require. Evidence of good faith compliance may inclUde the following: (1) Conformance with the requirements of the Specific Plan; (2) Conformance with the Approved Phasing Plan as 34 set forth in Section 1.9; (3) Conformance with provisions of this Agreement identified by City. E. If, as a result of such periodic review, the City Council finds and determines, on the basis of substantial evidence, that the Developer or successor in interest thereto has not complied in good faith with the terms or conditions of the Agreement, the City Council may issue a written "Notice of Non-Compliance" pursuan~ to Section 3.2 herein and may thereafter, as provided in Section 3.3, commence proceedings to enforce, modify, or terminate this Agreement. 3.2 'Notice of Non-Compliance. If on the basis of the annual review the City determines, or at any other time during the term of this Agreement, either Party concludes that the other party has not complied in good faith with the terms of this Agreement, then such Party may issue a written "Notice of Non- Compliance" specifying the grounds therefor and all facts demon- strating such non-compliance. The Party receiving a Notice of Non-Compliance shall have forty-five (45) days to respond in writing to said notice by specifying either how its non-compli- ance has been cured or the grounds upon which it believes that it is complying with this Agreement. The time to respond to the Notice of Non-Compliance may be extended by mutual agreement of the Parties. If the response to the Notice of Non-Compliance has not been received in the offices of the party alleging non- 35 compliance within the prescribed forty-five (45) days, or within such other period of time as mutually agreed, the Notice of Non- Compliance shall be conclusively presumed to be valid, and if the non-complying party is Developer, the City may commence proceed- ings on termination or modification of the Agreement pursuant to Sections 9617(d)-(e) and 9618 of the Tustin City Code and Section 3.3 herein. If the party receiving a Notice of Non-Compliance responds within the time period provided above, ~he parties agree to meet in good faith at reasonable times and from time to time for a period of at least sixty (60) days to arrive at a mutually acceptable resolution of the matter(s) asserted in the Notice of Non-Compliance and disputed in the response. If after sixty (60) days, or any extension of time as mutually agreed to by the parties, the parties have failed to arrive at a mutually accept- able resolution of such matter(s), either party may pursue any remedy at law or in equity, and the City may commence proceedings on termination or modification of this Agreement pursuant to Sections 9617(d)-(e) and 9618 of the Tustin City Code and Section 3.3 herein. 3.3 Modification or Te&mination. A. If the City Council determines to proceed with modification-or termination of this Agreement after following the procedure for a Notice of Non- Compliance under Section 3.2 of this Agreement, the City Council shall give notice to the Devel- oper or successor in interest thereto of its intention to do so. The notice shall contain: 36 3.4 Developer's oompliance with conditions of this Agreement. Amendment and Cancellation. A. (1) The time and place of the hearing; (2) A statement as to whethe~ or not the City Council proposes to modify or terminate this Agreement; (3) Any proposed modification to the Agreement; (4) Other information which the City Council considers necessary to inform the Developer or successor in interest.thereto of the nature of the hearing. At the time set for the hearing on the modification or termination, the City Council may refer the matter back to the Planning Commission for further proceedings or for report and recommendation. The City Council may take such action as it deems necessary to protect the interests of the City, including but not limited to, the receipt of additional evidence as to the terms and Either the City, Developer or Developer's successor in interest thereto may propose an amendment or cancellation in whole or in part of this Agreement. The procedure for proposing and approving an amendment to or cancellation in whole or in part of this Agreement shall be the same as the 37 3.5 procedure set forth in the Tustin City Code for entering into a development agreement. C. Except as provided for in Section 9618 of the Tustin City Code, this Agreement may only be amended or cancelled in whole or in part by the mutual consent of all parties to this Agreement. A. Unless amended, terminated or cancelled as pro- vided herein, this Agreement is enforceable by any Party notwithstanding a change in the General or Specific Plan, zoning, subdivision or building regulations (other than changes in uniform build- ing codes) adopted by City which alters or amends the rules, regulations or policies governing per- mitted uses of the land, density, design, improve- ment and construction standards and specifica- tions. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in the City's ordinance governing development agreements are available to the Par- ties to pursue in the event there is a breach. Notwithstanding the foregoing, in the event of any failure of City to provide Developer its rights as specified in this Agreement for reasons beyond the control of the City Council of City, Developer waives all rights to recover damages from, and covenants not to sue, City, its officers, agents, employees and representatives, for any money damages except such as may be claimed by Developer for its actual costs of construction of public improvement infrastructure to the extent it has been installed for the use and benefit of proper- ties-which by the provisions of this Agreement it is entitled to develop but which has not been developed and cannot be develope~ due to actions of the. City. B. Both parties agree to cooperate and vigorously defend any action challenging the validity and enforceability of this Agreement. 3.6 Other FaCtors Relating to Developer's Performance. A. City does not waive any claim of defect in performance by Developer if at the time of annual review City does not determine to issue a Notice of Non-Compliance and to subsequently propose to modify or terminate this Agreement. B. An express repudiation, refusal or renunciation of this A~reement, if the same is in writing and signed by the Developer or successors in interest, shall be sufficient to terminate this Agreement. IV GENERAL PROVISIONS 4.1 Term. Except as provided in Section III, this Agreement shall remain in effect for an initial term of fifteen (15) years, an~ may be extended by either Party upon written notice prior to expiration for a second additional period cf five (5) years. 4.2 Mold Harmless and Defense. Until such time as the public improvements required by this Agreement to be construczed have been completed and accepted by City, Developer agrees to and shall indemnify, pay all costs, defend and hold City, its offi- cers, agents, employees and representatives harmless from lia- bility for damage or claims for damage for personal injury including death and claims for property damage which may arise from the direct or indirect operations of Developer or those of its contractors, subcontractors, agents, employees or other per- sons acting on its behalf which relate to Developer's performance under this Agreement. The foregoing provision applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operations referred to in this section, regardless of whether or not City prepared, supplied, or approved plans or specifications, or both, or all, for the Project. 4.3 Notices. Ail notices under this Agreement shall be given to the following representatives of the parties at the addresses indicated below by personal service or by registered or certified United States mail, postage prepaid, return receipt requested, addressed as follows: If to the City: City of Tustin 300 Centennial Way Tustin, CA 92680 Attn: City Clerk Copy to: City Attorney If to the Developer: The Irvine Company P.O. Box I Newport Beach, CA 92658 Attn: President 4O Copy to: General Counsel Either party may change its address or specify another person to whom any notice should be directed by giving notice in writing to the other party. 4.4 Assi~nment. Developer may at its discretion Join and associate with other entities and Joint ventures, partnerships or otherwise for the purpose of performing under this Agreement, except that the rights of Developer under this Agreement may not be transferred or assigned in whole by Developer unless the written consent of the City is first obtained, which consent City agrees not to unreasonably withhold. The development rights for specific areas may be assigned to successors in interest in such areas in the ordinary course of Developer's business. However, Developer s~all still remain bound by all the obligations of this Agree- ment, other than all obligations assessed or imposed upon real property so conveyed and obligations imposed upon issuance of building permits for improvements within such parcels of real property. 4.5 Binding Effect of Agreement. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 4.6 Time is of the Essence. Time is of the essence of each provision of this Agreement of which time is an element. 4.7 Waivers. No waiver of any provision of this Agreement shall be 41 or (2) as follows: (1) Bodily In3ury Liability: $500,000 Each Person $1,O00,O00 Each Occurrence Property $250,000 S 500,000 Damage Each Occur- Aggregate Liability: fence (2) A single $500,000 Si,000,000 'limit for Each Occur- Aggregate Bodily Injury rence Liability and Property Damage Lia- bility com- bined of: B. An additional insured endorsement to the Developer's liability insurance policy naming the City, its officers and employees, as additional insureds. Insurance coverage in the minimum amounts set forth herein shall not be construed to relieve Developer for liability in excess of such coverage, nor shall it relieve Developer of City's security and insurance requirements for subdivision improvements, nor shall it preclude City from taking such other actions as are available to it under any other provision of this Agreement or otherwise in law. 4.10 Specific Performance. Except as otherwise expressly provided in this Agreement, in the event that either party brings an action tD specifically enforce the terms and provisions of this Agreement, the prevail- ing party in that action shall be entitled to recover its costs of suit, including reasonable attorneys' fees,.as a part of its Judgment. IN WITNESS WHEREOF, the parties have each executed this 43 effective unless contained in a writing signed by a duly authorized representative of the party against whom enforcement of a waiver is sought, ' and no waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or r'emedy in respect of any other occurrence or event. 4.8 ~ of the Part/e~. The covenants, obligations and liabilities of the parties are intended to be several and not joint or collective, and nothing herein contained shall ever b~ construed to create an association, joint venture, trust or partnership, or to impose a trust or partnership covenant, obligation or liability on or with regard to either party. Each party shall be individually responsible for its own covenants, obligations and liabilities as herein provided. Neither party shall be under the control of or shall be deemed to control the other party. Neither party shall be the agent of or have a right or power to bind the other party without such other party's express written consent. 4.9 Dm_% u AL Developer shall not commence work under this Agreement until Developer shall have obtained the following insurance and the coverage and certificate thereof shall have been approved by the City, through the City Attorney's office, as to form, amount and carrier. A. ~ ~ ~ for liability assumed by Developer pursuant to this Agreement with City. The minimum limits of liability for this insurance shall be as indicated in either !) Agreement on the date first above written. CITY OF TUSTIN ATTEST: By Mayor .City Clerk THE IRVINE COMPANY By. President JGR:LEJ:lw:R:6/25/86(34.cJ) By. Secretary 44 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) On , .1986, before me, the undersigned, a Notary Public in and for said State, personal'ly appeared and , personally known to me, or proved to me on the basis of satisfactory evidence, to be the persons who executed the within instrument as Mayor and City Clerk on behalf of the City of Tustin, the'California municipal corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to a a reso- lution adopted by its City Council. WITNESS my hand and official seal. NOTARY PUBLIC (SEAL) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , 1986, before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me, or proved to me on the basis of satisfactory evidence, to be the persons who executed the within instrument as President and Secretary, on behalf of The Irvine Company, the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors. WITNESS my hand and official seal. NOTARY PUBLIC (SEAL) EXHIBIT "D" MAJOR INFRASTRUCTURE PHASING E1 Modena Channel - The ultimate E1 Modena-Irvine Channel improvements to provide protection from the 100 year flood as specified by the CountY of Orange Environmental Management Agency (Flood Control District) shall be completed prior to the issuance of any building permit other than for Tract 12345 and the Auto Center (Parcel Map 84-1032), except as provided in subparagraphs a and b below. Improvement limits of the E1 Moden~-Irvine Channel shall be from Browning Avenue to the downstream side of the Santa Ana (I-5) Freeway. Construction of improvements and grading northerly of Bryan Avenue may begin under the following conditions: Construction of the ultimate improve- ments for the E1 Modena Channel have been contracted for and construction has begun. and Myford Road (North/South Arterial) me The improvements and/or grading will not have a detrimental effect on the Flood Control Capacity of .existing facilities as determined by the City Engineer. Immediately after City's receipt of proceeds from the sale of bonds or bond anticipation notes for Assessment Dis- trict No. 85-1, the design and construc- tion of the ultimate improvements of Myford Road (Westerly one-half) between the Santa Aha (I-5) Freeway and Irvine Boulevard shall commence and shall be completed prior to or concurrent with the development of Sectors 11 & 12. The presently estimated scope of improve- . ments are shown in the Engineer's Report for Assessment District 85-1, but addi- tional improvements of Myford Road between I-5 and Irvine Boulevard, out- side of the East Tustin boundary and Assessment District 85-1 may be required in the reasonable discretion of the City Engineer, to provide adequate circula- tion with standard improvements, with Jamboree Interchange ¸II. phasing consistent with the phasing of development in the Specific Plan Area. Myford Road (2 lane's) from Irvine Blvd. to the northerly city limits shall be completed prior to the issuance of any building'permits in Seotors 1, 2, 3, 4, 5 or 6. Also the ultimate improvements (as indicated in the proposed Greater East Tustin Assessment District) of Myford Road adjacent to Sector 7 shall be constructed prior to or concurrent with the development of Sector 7. Addi- tional improvements outside of the East Tustin boundary and the Greater East Tustin Assessment District may be required at the reasonable discretion of the City Engineer. III. The intention is to complete Myford Road as the North/South Arterial. If Myford Road is unable to be completed due to alignment or other issues, upon mutual agreement of the City and the Company, other alternative solutions which will provide the required traffic capacity may be allowed, provided that no build- ing permits in Sectors 1, 2, 3, 4, 5' or .6 will be issued until such alternative solutions are approved by City. - Immediately after City's receipt of the proceeds from the sale of bonds or bond anticipation notes for Assessment Dis- trict 85-1, the design and construction of the Jamboree Road/I-5 Interchange shall commence. Lt is contemplated that Assessment District No. 85-1 will fund a portion of the total cost (72%) of the Jamboree Road/I-5 Interchange. Developer shall be responsible to arrange funding for the remaining por- tion of the cost (28%) at the time of construction (demand by Caltrans) and will be reimbursed at a future date to the extent permitted by law from the proceeds of the sale of assessment dis- trict bonds when and if subsequent Assessment District(s) are established in the remaining areas of the East Tus- tin Specific Plan. Irvine Boulevard Remaining Infrastructure - At such time as Irvine Boulevard between Browning Avenue and Newport Avenue is widened to a six-lane primary Arterial Highway status and City is a participant in the widening project, Developer shall pay its determined fair share of City's costs, based on the impact of East Tus- tin traffic on Irvine Boulevard. The fair share shall be consistent with recommendations contained in the E.I.R. and shall be determined by traffic generated by actual development in the East Tustin Specific Plan. - The remaining infrastructure improve- ments for Assessment District NO. 85-1 shall be completed concurrent with planned development within the Assess- ment District'boundaries (575 acres). Construction of all other arterial high- mays within the East Tustin area shall precede or be constructed concurrently with all residential construction within 1000 feet of the subject roads.