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HomeMy WebLinkAboutRDA CARVER DEV AG 12-16-85~[~ :,: NO. 4 12-16-85 P M W Associates 7.32 West Avenlda Gaviota, San Clemente, California 92672 (714) 498-7085 TO: FROM: SUBJECT: DATE: Redevelopment Agency City of Tustin Marilyn Whisenand Redevelopment Consultant Carver Development Agreement November 25, 1985 RECOMMENDATIONS: It is recommended that the Owner Participation Agreement between Carver Development and Tustin Community Redevelopment Agency be approved and that the Chairman of the Tustin Community Redevelopment Agency be authorized to execute the Agreement. BACKGROUND: On June 17, 1985, the Redevelopment Agency authorized the preparation of an agreement covering the terms and conditions of an agency contribution not to exceed $439,069.00 to fund certain public improvement costs in support of a community shopping center and office development to be constructed by Carver Development Company. In response to the the Agency's public improvement funding, Carver Development Company has agreed to construct a community shopping Center, incorporating more sales tax-producing uses than the office complex originally proposed for the Site. Prior to staff's consideration of any financial assistance, a fiscal impact report was prepared, analyzing the projected costs and revenues of the project. The report estimated net recurring annual revenues of approximately $64,378 to the City of Tustin and property tax increment of $145,000 annually to the Tustin Redevelopment Agency. Based on the projected level of tax increment revenue, the Redevelopment Agency contribution for public improvements would be returned via property tax increments in less than five years. OWNER PARTICIPATION AGREEMENT: An agreement incorporating Developer and Redevelopment Agency responsibilities has been finalized and signed by Carver Development Company and is submitted herewith for Agency consideration. The agreement is summarized as follows: Draft Report, Ctty of Tusttn November 25, [985 Scope o~ Development: The developer shall construct a shopping center of approximately 91,000 square feet on the northeast 7.9 acres of the Site and two office buildings, totalling approximately 46,000 square feet, on the southerly 2.83 acres of the Site. Within the shopping center, the developer shall include a free standing building of at least 6,000 square feet, which shall be operated as a quality dinner house. At least seventy-five percent (75%) of the buildings in the shopping center shall be devoted to uses which are subject to sales taxes. .The developer shall not use any portion of the Site for fast food restaurants, coffee shops, drive-through facilities of any type, liquor stores, auto parts stores, and convenience markets. The developer will provide for the construction and installation of off-site public improvements, as approved by the Public Works Director on Newport Avenue, 6th Street, Main Street, and Laguna Road. In the event that the City should form a maintenance assessment district for the maintenance of off-site improvements constructed in accordance with this agreement, the developer agrees to join the assessment maintenance district. Redevelopment Agency Contribution: The Redevelopment Agency agrees to reimburse the developer in an amount not to exceed four hundred thirty-nine thousand and sixty-nine dollars ($439,069.00) for the cost of constructing and installing off-site improvements. The cost of the off-site improvements shall not include fees or administrative and general expenses of the developer. If the Site is sold within three (3) years after a certificate of completion for the project is filed, the developer shall reimburse the Redevelopment Agency for portion of the Agency's public improvement contribution, calculated as follows: Amount Repaid Date Sold To Agency Within One (1) Year Within Two (2) Years Within Three (3) Years 100% 66-2/3% 33-1/3% TOWN CENTER AREA REDEVELOPMENT PROJECT OWNER PARTICIPATION AGREEMENT By and Between TUSTIN COMMUNITY REDEVELOPMENT AGENCY, Age ncy, and CARVER DEVELOPMENT PARTNERSHIP FOUR A California Limited Partnership Dev el ope r. i. I100] A. [101] E. [102] C. I103] D. [104] E. [105] 1. 2. U. [200] A. [2013 1. 2. 3. Se TABLE OF CONTENTS 10. SUBJECT OF ~REEMENT 1 RilfdlU.%~ of Agreement 1 The ~ Plan 1 The Project Area 1 The S~te 2 Parties to the Agreement 2 [106] The Agency 2 [107] The Developer 2 DEVELOPMENT OF THE SITE 2 ~ of the Site 2 [202] Scope of Development 2 [203] Basic Concept Drawings 2 [204] Landscaping and Finish Grading Plans 3 [205] Construction Drawings and Related Documents 3 [206] Approval of Plans, Drawings, and Related Documents 4 [207] Cost of Construction 5 [208] Schedule of Performance 5 [209] Indemnification During Construction; Bodily Injury and Property Damage Insurance; Workers' Com- pensation 5 [210] City and Other Govern- mental Agency Permits; EIR 6 [211] Right of Access 6 III. IV. 11. 12. Bt me [300] A. [400] Bo [214] [215] 1. [217] [212] [213] Local, State and Federal Laws Antidiscrimination During Construction Taxes, ~ ~ and Liens P_uodz~mn ~ T rans f e r [216] General Prohibition of~ [218] No Encumbrances Except Mortgages, Deeds of Trust Sales and Lease-Back or Other Financing for Development [219] Holder Not Obligated to Con stru ct Impr ov ement s 3. [220] 4. [221] 5. [222] Notice of Default to MoKtgage, Deed of Trust or Other Security Interest Holders; Right to Cure Failure of Holder to Complete Improvements Right of the Agency to Cure Mortgage, Deed of Trust, Other Security Interest, Lease-Back or Other Conveyance for Financing Default [223] ~ of ~ OFF-SITE IMPROVEMENTS [301] ~ and ~I~ USE OF THE SITE [401] Uses [402] ~ tO Refrain from 10 11 12 12 13 13 14 Ve VI. Ce [500] A. B. Ce De [6oo] Be De [ 403.] [404] [405] [501] [502] 1. 2. 3. [506] [507] [508] [601] [602] [603] [604] [605] Form of Nondiscrimination and~L~9.~Clauses Effect and Duration of Public Agency ]~ of Access for ~ j~ and ]~ of Public ~ and~ DEFAULTS, REMEDIES AND TERMINATION Defaults-General [503] [504] [505] Institution of Legal Actions Applicable Law Acceptance of Service of Process j~ and~ are GENERAL PROVISIONS ~ Demands and Communications ~ the Parties Warranty ~ Payment Aqreement ~LQIL~u~L~of Agencv and EIRP~ ~ of Times of 14 15 15 16 16 16 16 16 16 17 17 17 17 17 18 18 18 18 [606] ~ of Books and Records 19 GJ VII. [700] A. viii. [ 800] A. IX. [900] A® x. [1000] NO. 1 NO. 2 NO. 3 NO. 4 [607] [701] [ 801] [ 901] ~ by the Agency and the SPECIAL PROVISIONS Located Within ~roject Area ATTORNEYS' FEES ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY [1001] The Site Legal Description of Property Schedule of Performance Scope of Development 19 19 19 19 19 19 19 20 20 (~;NER PARTICIPATION AGREEMENT THIS AGREEMENT is entered into by and between the TUSTIN COMMUNITY REDEVELOPMENT AGENCY ("Agency") and CARVER DEVELOPMENT PARTNERSHIP FOUR, a California Limited Partnership ("Developer"). The Agency and Developer agree as follows: I. [100] SUBJECT OF AGREEMENT A. [101] Purpose of Agreement The purpose of this Agreement is to effectuate the Redevel- opment Plan (the "Redevelopment Plan") for the Town Center Area Redevelopment Project (the "Project") by providing for the de- velopment of a portion of the Project area owned by Developer (the "Site"). The development of the Site pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the City of Tustin and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. B. [102] The Redevelopment Plan This Agreement is subject to the provisions of the Redevelopment Plan which was approved and adopted by the City Council of the City of Tustin by Ordinance No. 701 on November 22, 1976. The Redevelopment Plan was amended by a First Amendment to the Redevelopment Plan adopted by the City Council on September 8, 1981 by Ordinance No. 855. Said Ordinance and Redevelopment Plan, as amended, are incorporated herein by reference and made a part hereof as though fully set forth herein. Any future amendments to the Redevelopment Plan which change the uses or development permitted on the Site or otherwise change the restriction or controls that apply to the Site, shall require the written consent of the Developer. Amendments to the Redevelopment Plan applying to other property in the Project area shall not require the consent of the Developer. C. [103] The Project Area The "Project Area" is located in the City of Tustin, California (the "City"). The existing boundaries of the Project Area are specifically described in the Redevelopment Plan, as amended, and in an instrument recorded on November 29, 1976 in Book No. 11976, pages 35 to 48 of the Official Records of Orange County, which instrument is incorporated herein by reference. D. [104] The Site The Site is that portion of the Project Area shown on the Site Map, attached hereby as Attachment No. 1 and having the legal description set forth in the "Legal Description of the Site", incorporated herein and attached hereto as Attachment No. 2 to this Agreement. E. [105] p~r~ies to the Aareement 1. [106] The Agency_ The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California. The principal office' of the Agency is located at 300 Centennial Way, Tustin, California 92680. "Agency" as used in this Agreement, includes the Tustin Community Redevelopment Agency and any assignee of or successor to its rights, powers and responsibilities. 2. [107] The. Der el op9 r The Developer is a California Limited Partnership organized and existing pursuant to the laws of the State of California. The General Partner of Developer is Leroy L. Carver, III. The principal office of Developer is located at 1100 Newport Center Drive, Newport Beach, California 92660. Wherever the term "Developer" is used herein, such term shall include any permitted nominee or assignee as herein pr ov ide d. II. [200] DEVELOPMENT OF THE SITE A. [201] Development of the Site 1. [202] $cop~ of Development The Site shall be developed by the Developer in accordance with and within the limitations established therefor in the "Scope of Development" (Attachment No. 4). 2. [203] Basic Concept Drawings The Developer shall prepare and submit Basic Concept Drawings and related documents for the development of the Site to the Agency for review and written approval within the times established therefor in the Schedule of Performance (Attachment No. 3). The Site shall be developed as established in the approved Basic Concept Drawings and related documents, except for such changes as may be mutually agreed upon between Developer and the Agency. Any such changes shall be within the limitations established in the Scope of Development (Attachment No. 4). Basic Concept Drawings shall include a Site plan, elevations and other architectural drawings showing the architectural style and design of all buildings to be constructed on the Site. The Basic Concept Drawings will provide a plot plan indicating the statute and type of plantings and other landscaping features to be developed on the Site. 3. [204] Landscaping and Finish Grading Plans The landscaping plans shall be prepared by a professional landscape architect, who may be the same firm as the Developer's architect. The finish grading plans shall be prepared by a licensed civil engineer. The Developer shall prepare and submit to the Agency for its approval, preliminary and final landscaping plans and finish grading plans for the Site. These plans shall be pr.epared, submitted, and approved within the times respectively establsihed therefor in the Schedule of Performance (Attachment No. 3). 4. [205] ~onstructiOn Drawings and Related Documents The Developer shall prepare and submit to the Agency construction drawings and related documents for the Site for architectural review and written approval, as and at the respective times established therefor in the Schedule of Performance (Attachment No. 3). Such construction drawings and related documehts shall be submitted in two stages: preliminary schematic, and final working drawings. Preliminary schematic drawings shall include plans, elevations and sections of the improvements as they are to be constructed on the Site and a description of the structural, mechanical and electrical systems pertaining to such improvements. Final working drawings are hereby defined as those in sufficient detail to obtain a building permit. Approval of progressively more detailed drawings and specifications will be promptly granted by the Agency if they are not in conflict with drawings or specifications theretofore approved. Any items so submitted and approved in writing by the Agency shall not be subject to subsequent disapproval. During the preparation of all drawings and plans, the Agency and the Developer shall hold regular progress meetings to coordinate the preparation, submission, and review of construction plans and related documents. The Agency and the Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency can receive prompt and speedy consideration. If any revision or correction of plans approved by the Agency shall be required by any governmental official, agency, department or bureau having jurisdiction, the Developer and the Agency shall cooperate in efforts to develop and obtain approval of a mutually acceptable alternative. 5. [206] Approval of Plans. Drawings. and Related Documents Subject to the terms of this Agreement, the Agency shall have the right of reasonable architectural review of all plans and submissions, including any proposed changes therein. The Agency shall approve or disapprove the plans, drawings and related documents for the development of the Site within the times established in the Schedule or Performance (Attachment No. 3). Failure by the Agency to either approve or disapprove within the times established in the Schedule of Performance (Attachment No. 3) shall be deemed an approval. Any disapproval shall state in writing the reasons for disapproval and the changes which the Agency requests be made. Such reasons and such changes must be consistent with the Scope of Development (Attachment No. 4) and any items previously approved or deemed approved hereunder. The Developer, upon receipt of a disapproval with respect to the Basic Concept Drawings based upon powers reserved by the Agency hereunder, shall revise the Basic Concept Drawings, and shall resubmit the revised drawings to the Agency as soon as possible after receipt of the notice of disapproval. As to other plans and drawings, the Developer upon receipt of a disapproval, shall revise such plans and drawings (or such portions thereof) to be consistent with previously approved plans and drawings, and shall resubmit such revised plans and drawings (or such revised por- tions thereof) as soon as possible after receipt of the notice of disapproval. Plans approved or deemed approved shall be deemed in all respects to be in accordance with the Redevelopment Plan for the Project. If either party desires to make any change in the final working drawings after their approval, such proposed change shall be submitted to the other party for approval. If the-proposed change conforms to the requirements of this Agreement and the Scope of Development (Attachment No. 4), the Parties may approve such change. 6. [207] Cost of Construction The cost of developing the Site and of constructing all improvements thereon shall be borne by the Developer, except for costs and work expressly set forth in this Agreement to be borne by the Agency or others. 7. [208] Schedule of Performance After approval of the plans for development of the Site, the Developer shall promptly begin and thereafter diligently prose- cute to completion the construction of the improvements thereon and the development thereof as provided in the Scope of Develop- ment (Attachment No. 4). The Developer shall begin and complete all construction and development within the time specified in the "Schedule of Performance" or within such reasonable extensions thereof as may be granted by the Agency. The Schedule of Perfor- mance (Attachment No. 3) is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Agency. During periods of construction, the Developer shall submit to the Agency a written report of the progress of the construction when and as requested by the Agency. The report shall be in such form and detail as may be reasonably required by Agency and shall include a reasonable number of construction photographs (if any) taken since the last report by Developer. 8. [209] Indemnification During Construction: Bodily Injury and Property Damage Insurance: Workers' Compensation During the period of construction on the Site and until such time as the Agency has issued a Certificate of Completion with respect to the construction of the improvements thereon, the Developer agrees to and shall indemnify and hold the Agency and the City harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall occur on or adjacent to the Site and which shall be directly or indirectly caused by any acts done thereon or any errors or omissions of the Developer or its agents, servants, employees, or contractors. The Developer shall not be responsible for (and such indemnity shall not apply to) any acts, errors, or omissions of the Agency or the City, or their respective agents, servants, employees, or contractors. During the period of construction on the Site ending on the date when a Certificate of Completion has been issued with re- spect to the Site, the Developer shall furnish, or cause to be furnished, to the Agency duplicate originals or appropriate certificates of bodily injury and property damage insurance policies in the amount of at least $500,000.00 for any person, $t,000,000.00 for any occurrence and $300,000.00 property damage, naming the Agency and the City as additional insureds. Said policy or policies shall be kept in full force and effect until the Agency has issued its Certificate of Completion for the Site, or any portion thereof to which said policy or policies pertain. Each policy of insurance shall provide that it shall not be cancelled until not less than (30) days advance written notice is given to the Agency. Developer shall also provide worker's compensation insurance coverage in accordance with all applicable laws of the State of California. 9. [2i0] City and Other Governmental ~qencv Permits: EIR Before commencement of grading, construction or development of any buildings, structures or other work of improvement upon the Site, the Developer shall, at its own expense, secure or cause to be secured, any and all permits and zoning which may be required by the City or any other governmental agency affected by such construction, development, or work. The Agency shall provide all proper assistance to the Developer in securing these permits. The California Environmental Quality Act has been complied with by the Agency in adoption of the Project. The Developer has obtained a Conditional Use Permit from the City fo Tustin Planning Commission pursuant to Resolution No. 2229. In approvide said Use Permit, the Planning Commission approved a negative declaration with respect to development of the Site. 10. .[211] Right of Access Representatives of the Agency and the City shall have the reasonable right of access to the Site without charges or fees, at normal construction hours during the period of construction, for the purposes of this Agreement, including but not limited to the inspection of the work being performed in constructing the improvements. Such representatives of the Agency or the City shall be those who are so identified in writing by the Executive Director of the Agency. 11. [212] Local, State and Federal Laws The Developer shall carry out the construction of the improvements on the Site in conformity with all applicable laws, including all applicable federal and state labor standards. 12. [213] Antidiscrimination Durinq Construction The Developer for itself, its successors and assigns, agrees that in the construction of the improvements on the Site provided for in this Agreement, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, creed, or national origin or ancestry. B. [214] Taxes. Assessments. Encumbrances and Liens The Developer shall pay when due all real estate taxes, encumbrances, liens and assessments on the Site. Nothing herein contained shall be deemed to prohibit the Developer from con- testing the validity or amounts of any tax assessment, encum- brance or lien, nor to limit the remedies available to the Developer in respect thereto. C. [215] Prohibition Against Transfer 1. [216] General Prohibition No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. Except as expressly provided in Section 218 and in other sections of this Agreement, the Developer shall not assign all or any part of this Agreement without the prior written approval of the Agency, which approval shall not be unreasonably withheld. The Developer shall promptly notify the Agency of any and all changes whatsoever in the identity of the parties in control of the Developer or the degree thereof, of which it has been notified or otherwise has knowledge or information. This Agree- ment may be terminated by the Agency if there is any significant change (voluntary or involuntary) in membership, management or control of the Developer (other than such changes occasioned by the death or incapacity of any individual or permitted transfers of partnership interests among partners and affiliates) prior to issuance of a Certificate of Completion for the Site as herein- under provided. If the Site, in whole or in part, is sold, transferred or assigned (except as provided in Section 218) within three (3) years after filing of the Certificate of Completion provided for in Section 223, Developer shall reimburse and pay to Agency a sum calculated pursuant to the following: · Date Sold or Amount to be Transferred Paid to Agency Within one (1) year after filing Certificate of Completion Within two (2) years after filing Certificate of Completion Within three (3) years after filing Certificate of Completion One Hundred* (100%) Sixty-sixand two- thirds (66 2/3%) Thirty-three and one-third (33 1/3%) *(Percent of amount paid by Agency pursuant to Section 301) This Section and the rights and obligations contained herein shall survive the filing of the Certificate of Completion. D. [217] Security Financing: Right of Holders 1. [218] No Encumbrances Except Mortgages. Deeds of Trust Sales and Lease-Back or Other Financing for Development Notwithstanding Sections 215 and 216, mortgages, deeds of trusts, sales and lease-back, or any other form of conveyance required for any reasonable method of financing are permitted before recordation of a Certificate of Completion for the financing of all expenditures necessary for development of the Site, but only for the purpose of securing funds to be used for financing the construction of improvements thereon, and any other expenditures necessary and appropriate to develop the Site under this Agreement. The Developer shall notify the Agency in advance of any mortgage, deed of trust, sale and lease-back, or other form of conveyance for financing, if the Developer proposes to enter into the same before recordation of a Certificate of Com- pletion. The Developer shall not enter into any such conveyance for financing without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance is given to a responsible financial or lending institution or institutions or other acceptable person or entity. In any event, the Developer shall promptly notify the Agency of any mortgage, deed of trust, sale and lease-back or other financing conveyance, encumbrance or lien that has been created or attached thereto prior to issurance of a Certificate of Completion, whether by voluntary act of the Developer or otherwise. The words "mortgage" and "deed of trust" as used herein include all other appropriate modes of financing real estate acquisition, construction, and land development. 2. [219] Holder Not Obligated to Construct Improvements The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall in no way be obli- gated by the provisions of this Agreement to construct or com- plete the construction of improvements, or to guarantee such construction or completion. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 3. [220] Notice of Default to Mortgage, Deed Qf Trust or Other Security Interest Holders: Right to Cure Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer under this Agreement, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement, a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right at its option within ninety (90) days after the receipt of the notice, to cure or remedy, or to commence to cure or remedy, any such default and to add the cost thereof to the security interest debt and the lien of its security interest. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates, and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such improvements shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency with respect to such improvements. 4. [221] Failure of Holder to Complete In any case, where six (6) months after default by the Developer in completion of construction of improvements under this Agreement, the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon the Site or any portion thereof, has not exercised the option af- forded in Section 220 of this Agreement to construct, or if it has exercised the option, but has not proceeded diligently with construction, the Agency may either: (i) purchase the mortgage, deed of trust or other security interest, by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest; or (ii) if the ownership of the Site (or any portion thereof) has vested in the holder, purchase from the holder such interest, upon payment to the holder of an amount equal to the sum of the following: (a) The unpaid mortgage, deed of trust or other security interest debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings). (b) Ail expenses with respect to foreclosure. (c) The net expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the Site (or any portion thereof), such as insurance premiums and property taxes. (d) The costs of any improvements made by such holders. (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts in (a), (b), (c) and (d) above become part of the mortgage or deed of trust debt and such debt ahd continued in existence to the date of payment by the Agency. 5. [2223 Right of the Agency to Cure Mortgage. Deed of Trust. Other Security Interest. ~¢ase-Back or Other Conveyance for Financinq Default In the event of a default or breach by the Developer of a mortgage, deed of trust or other security instrument with respect to the Site, or any portion thereof, prior to the completion of development of improvements thereon, and the holder has not exercised its option to complete the development, the Agency may cure the default prior to the completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be entitled to a lien 10 upon the Site (or any portion thereof) to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to mortgages, deeds of trust, or other security instruments executed for the sole purpose of obtaining funds to purchase and develop the Site as authorized herein. E. [223] Certificate of Completion Promptly after completion of all construction and develop- ment to be completed by the Developer upon the Site, or portion thereof, the Agency shall furnish the Developer with a Certifi- cate of Completion. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Comple- tion shall be, and shall so state, a conclusive determination of satisfactory completion of the construction required by this Agreement upon the Site, and of full compliance with the con- struction required by this Agreement upon the Site, and of full compliance with the terms hereof with respect to the Site. The Agency will also furnish the Developer with a Certificate of Completion for portions of the improvements upon the Site as are properly completed and ready to use if the Developer is not in default~ under this Agreement. After the recordation of the Certificate of Completion, any party then owning or thereafter purchasing, leasing, or otherwise acquiring any interest therein shall not (because of such ownership, purchase, lease, or acqui- sition) incur any obligation or liability under this Agreement, except that such party shall be bound by obligation or liability under this Agreement, except that such party shall be bound by any covenants contained in the deed, lease, mortgage, deed of trust, contract, or other instrument of transfer which sha~ll include the provisions of Sections 400 through 404 (inclusive) of this Agreement. Neither the Agency nor any other person, after the recordation of the Certificate of Completion, shall have any rights, remedies or controls that it would otherwise have or be entitled to exercise under this Agreement as a result of a de- fault in or breach of any provision of this Agreement, and the respective rights and obligations of the parties with reference to the Site shall be limited thereafter to those set forth in the documents recorded pursuant to this Agreement. The Certificate of Completion pertaining to the entire improvement and development of the Site shall be in such form as to permit it to be recorded in the Recorder's Office of Orange County. Certificates of Completion of construction for less than the completed improvement and development of the Site shall not be recorded. If the Agency refuses or fails to furnish a Certificate of Completion for the Site after written request from the Developer, the Agency shall, within fourteen (14) days of the written re- quest, provide the Developer with a written statement of the 11 reasons the Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain a Certi- ficate of Completion. If the reason for such refusal is confined to the immediate availability of specific items or materials for landscaping or other minor wOrk, the'Agency will issue its Certi- ficate of Completion upon the posting of a bond by the Developer with the Agency in an amount representing a fair value of the work not yet completed. If the Agency shall have failed to provide such written statement within said 30-day period, the Developer shall be deemed entitled to the Certificate of Comple- tion. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, or any part thereof. Such Certificate of Completion is not notice of completion as referred to in Section 3093 of the California Civil Code. III. [300] OFF-SITE IMPROVEMENTS A. [301] Construction and Installation In order to coordinate the development on the Site and the construction of certain off-site improvements, the Developer agrees to construct and install the off-site improvements speci- fied in the Scope of Development (Attachment No. 4). Agency shall pay to Developer an amount not to exceed Four Hundred Thirty-nine Thousand Sixty-nine Dollars ($439,069.00) for the cost of constructing and installing such off-site improvements. Such costs do not include fees or administrative and general expenses of Developer. Developer agrees to prepare or cause to be prepared all plans, drawings and specifications (the "Plans") necessary to construct and install the off-site improvements specified in the Scope of Development (Attachment No. 4). The Plans shall be submitted to the Public Works Director of City for review and approval before bids are solicited by Developer as hereinafter pr ov ide d. Developer shall solicit bids and award contracts for con- struction and installation of the improvements specified in the Scope of Development (Attachment No. 4) to the lowest responsible bidder based upon at least three (3) competitive bids. Prior to award of any contract, a bid summary shall be submitted to the Public Works Director of City for review and approval. Any change orders to a contract to construct the off-site improve- ments shall be submitted to the Public Works Director of City for review and approval before they are authorized by Developer. If the Public Works Director does not approve or disapprove such change orders within five (5) days after submission, such change orders shall be deemed approved. 12 Developer agrees to maintain complete and accurate accounts, invoices, and records of all monies expended or paid pursuant to such contracts during the course of construction of such off-site improvements specified in the Scope of Development, Attachment No. 4. Upon completion of construction of said off-site improvements, a final accounting shall be made to establish the cost thereof. Agency will pay Developer the actual cost of said improvements provided that such sum does not exceed the amount established pursuant to this Section. Developer shall obtain and furnish to the Agency surety bonds in a form approved by the Agency, executed by a corporation authorized to transact surety business within the State of Cali- fornia rated Grade A, or better, and Class IX, or better, by the latest edition of Best's Key Rating Guide for the following purposes and the sums stated, and shall keep the bonds in full force and effect until the improvements have been completed and accepted by the Agency, or shall furnish a cash deposit or other form of security approved by the Agency, in lieu thereof (based upon the estimated cost of such improvements): ae Bo Faithful Performance Bond: To secure the faithful performance of all terms and conditions in an amount equal to one hundred percent (100%) of the amount of such contract. Labor and Material Bond: To secure payment to contractors, subcontractors, engineers, surveyors and to all persons renting equipment or furnishing labor and materials to them upon such improvements in an amount equal to one hundred percent (100%) of the amount of such contract. IV. [400] USE OF THE SITE A. [401] Uses The Developer covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Site or any part thereof) that during construction and thereafter, the Developer, such successors, and such assigns shall: Develop and devote the Site (or any part thereof), to the uses specified therefor in the Redevelopment Plan, this Agreement (including the Scope of Development, Attachment No. 4) and plans approved by the Agency pursuant hereto; and 13 Maintain (after completion of construction) the im- provements on the Site and keep the Site free from any accumulation of debris or waste materials and maintain the landscaping required to be planted under the Scope of Development (Attachment No. 4) in a healthy con- dition. B. [402] Obligation to Refrain from Discrimination There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, and the Developer itself (or any person claiming under or through it) shall not establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use of occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Site. C. [403] Form of Nondiscrimination and ~onseqreqation Clauses The Developer shall refrain from restricting the rental, sale or lease of the Site, or any portion thereof, on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: In deeds: "The grantee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: 14 That there shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, or enjoyment of the land herein leased nor shall the lessee himself, or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." D. [404] Effect and Duration of Covenants The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the Developer and any successor in interest to the Site or any part thereof for the benefit and in favor of the Agency, its successors and assigns, and the City. Except as set forth in the following sentence, the covenants contained in this Agreement shall remain in effect until November 22, 2006, unless this Agreement provides for their earlier termination. The covenants against discrimination (set forth in Sections 402 and 403) shall remain in perpetuity. E. [405] Public Agency Rights of Access for Construction. Repair and Maintenance of Public Improvements and Facilities The Agency for itself, and for the City and other public agencies, at their sole risk and expense, reserves the right to enter the Site or any part thereof at all reasonable times and with as little interference as possible, for the purposes of construction, reconstruction, maintenance, repair or service of any public improvements or public facilities located on the Site. Any such entry shall be made only after reasonable notice to the Developer, and the Agency, the City, or other public agency shall indemnify and hold the Developer harmless from any claim of liabilities pertaining to the entry. Any damage or injury to the Site resulting from such entry shall be promptly repaired at the sole expense of the public agency responsible for the entry. 15 V. [500] DEFAULTS, REMEDIES AND TERMINATION A. [501] Defaults-General Subject to the extensions of time set forth in Section 605, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in defa ul t. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Except as requried to protect against further damages, and except as otherwise expressly provided in Sections 507 and 508 of this Agreement, the injured party may not institute proceedings against the party in default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Except as otherwise expressly provided in this Agreement, any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any such right or remedies, or deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary totprotect, assert or enforce any such rights or remedies. B. [502] 1. [503] Institution of Legal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions may be instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in that County, or in the Federal District Court in the Central District of California. 2. [504] The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [505] Acceptance of Service of Process In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency 16 shall be made by personal service upon the Chairman, Executive Director or Secretary of the Agency, or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon a general partner, officer or manager of the Developer or in such other manner as may be provided by law, whether made within or without 'the State of Cal if or ni a. C. [506] ~{iqhts and Remedies are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the other party. D. [507] If either party defaults with regard to any of the pro- visions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be liable to the non-defaulting party for any damages caused by such default, and the non-defaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. E. [508] Specific Performance If either party defaults with regard to any of the pro- visions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the non-defaulting party, at its option, may thereafter (but not before) commence an action for specific performance of the terms of this Agreement. VI. [600] GENERAL PROVISIONS A. [601] Notices, Demands and Communications Between the Parties Formal notices, demands and communications between the Agency and the Developer shall be deemed sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency 17 and the Developer. Such written notices, demands and communica- tions may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. B. [602] Conflict of Interests No member, official or employee of the Agency shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. C. [603] Warranty Against Payment of Consideration for Agreement The Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys. D. [604] Nonliabilt_v of Agency Officials NO member, official or employee of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or successor, or on any obligation under the terms of this Agreement. E. [605] · 'Enforced Dela,v: Extension of Times of Performance in addition to specific provisions of this Agreement, per- formance by either party hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casual- ties; acts of God; acts of the public enemy; epidemic; quarantine restrictions;~ freight embargoes; lack of transportation; govern- mental restrictions or priority; litigation (other than condem- nation actions); unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts of the other party; acts or the failure to act, of any public or governmental agency or entity (except that acts or failure to act of the Agency shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall only be for the period of the enforced delay, which period shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only 18 thirty (30) days prior to the giving of such notice. Times of performance under this Agreement may also be extended in writing by mutual agreement of the Agency and the Developer. F. [606] Inspection of Books and Records The Agency has the right at all reasonable times to inspect the books and records of the Developer pertaining to the Site as pertinent to the purposes of this Agreement. The Developer also has the right at all reasonable times to inspect the books and records of the Agency pertaining to the Site as pertinent to the purposes of this Agreement. G. [607] Approval by the Agency and the Developer Wherever this Agreement requires the Agency or the Developer to approve any contract, document, plan, proposal, specification, drawing or other matter, such approval shall not be unreasonably withheld. VII. [700] SPECIAL PROVISIONS A. [701] ~reference for Businesses Located Within Proiect Area The Developer agrees to provide reasonable preferences for businesses presently located within the Project area, to become lessees in the development on the Site ahead of others from outside the Project area to the extent such tenants are appropriate for the development and have reasonable financial resources to operate therein. Such preference shall be made at rental rates and with other lease terms consistent with such rental and terms to be offered to similar tenants of the development. VIII. [ 800 ] ATTORNEYS ' FEES A. [ 801] If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the pro- visions of this Agreement, the prevailing party shall be entitled to a reasonable attorneys' fee, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be en- titled. This provision shall be construed as applicable to the entire Agreement. Each party to this Agreement was represented by counsel in its negotiation and execution. IX. [900] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS A. [ 901] This Agreement is executed in six (6) duplicate originals each of which is deemed to be an original. This agreement in- 19 cludes twenty (20) pages and four (4) attachments which consti- tute the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Dev el ope r. X. [1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY A. [1001] This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within forty-five (45) days after the date of signature by the developer, or this Agreement may be withdrawn by the Developer on written notice to the Agency. The date of this Agreement shall be the date when this Agreement shall have been signed by the Agency. TUSTIN COMMUNITY REDEVELOPMENT AGENCY Date: By: Chairman Date: By: Date: Date: Secretary CARVER DEVELOPMENT PARTNERSHIP FOUR a California Limited Partnership Leroy L. Carve~r~,--fI-I- · its sole general partner By: APPROVED AS TO FORM: JAMES G. ROURKE Agency General Counsel By: 20 ATTACHMENT NO. 1 THE SITE It 1,t ' ~ I TUS.T.1N. PL- A-ZA NEWP~)R~ & MAIN ...... G~RV ER_~EVE_Ee~P_~ ~E~T . ATTACHMENT NO. 2 LEGAL ~ OF PROPERTY .-i i111,4 .- ! ATTACHMENT NO. 3 SCHEDULE OF P~OJ~NCE Submittal of Basic Conce~t D_~qJ~Lqa. The Developer shall prepare and submit to the Agency for approval basic con- cept drawings and related docu- ments for the Site. ~ of Aqree~ent bY the Agency. The Agency shall exe- cute and deliver this Agree- ment to the .Developer. Drawings. The Agency shall approve or disapprove basic concept drawings and related documents for the Site. S ub]~ of Final Construc tion O~L~wJ~l_qa and ~ Land ~ Plan. The Developer shall prepare and submit to the Agency the final construc- tion drawings and specifica- tions and a final landscaping and finish grading plan. ~ of F~nal ~ ~ and Final ~ Plan. The Agency shall ap- prove or disapprove the final construction drawings and specifications and a land- scaping and finish grading pl an. Co~msnCe~ent of Con~_t_~ion. Developer shall commence con- struction of improvements on the Site. Developer shall complete the construction of improvements on the Site. Completed. Within 30 days .after execution of this Agreement by the Developer. Completed. Within 120 days after execution of this Agreement by Agency. Within 45 days after submittal of the Final Construction Drawings and Final Landscaping Plan. Within 90 days after approval by the Agency of Final Construction Drawings and Final Landscaping Plan. Within 365 days after commencement of construction, provided that the last office building shall be completed within 545 days after commencement of construction. Public I]~prove~ents. The De- veloper shall commence and complete construction of the public off-site improvement work referred to in the Scope pleted. On a schedule which will coordi- nate with the construction schedule of the Developer for completion of construction by Developer on the Site. ATTACHMENT NO. 4 SCOPE OF DEVELOPMENT I. GENERAL DESCRIPTION The Site contains approximately 10.73+ acres, in a triangular shape, and is bounded on the north by Main Street, on the west by developed property, on the south by E1 Camino Real, and on the east by Newport Avenue. II. DEVELOPER'S RESPONSIBILITIES On the Site, the Developer shall develop and construct a shopping center of approximately 91,000 square feet located on the northerly 7.9 acres of the Site and two office buildings (two story) of approximately 46,000 square feet located on the southerly 2.83 acres of the Site. In the shopping center, Devel- oper shall develop a free-standing building of at least 6,000 square feet as a restaurant. The restaurant shall be operated as a quality dinner house. At least 75 percent (75%) of the buildings in the shopping center shall be devoted to uses which are subject to sales taxes. Developer shall construct and use the Site in a manner consistent with Conditional Use Permit 85-9 and Parcel Map PM 85-246 of the City of Tustin. Developer shall submit to the Agency before occupancy of the Buildings 1, 2 and 3 shown on Attachment No. 1, the names of tenants and proposed uses of such tenants for Buildings 1, 2 and 3 for review and comment. Developer shall consider comments of the Agency, if any, in determining whether to permit such proposed tenants to occupy such Buildings, provided that Developer and Agency agree that the Site will not be used for the following uses: fast food restau- rants, coffee shops, drive-through facilities of any type, liquor stores, auto parts and convenience markets. The Site shall be designed as an integrated complex consistent with the provisions of the Redevelopment Plan such that the development shall be functionally and aesthetically coordinated with proposed and existing adjacent public uses. The Developer agrees to be responsible for all development costs required, necessary and/or appropriate for development, construc- tion and installation of improvements on the Site, except for any work the Agency has expressly agreed to perform. Developer, its architect, engineer, and contractor shall work closely with the Agency's staff and the City's Planning staff to coordinate design, color, and landscaping details which are sub- ject to approval of the Agency, and which must conform to the Redevelopment Plan and the City's Site Development Standards. The following development standards shall apply to .the develop- ment: A. ~ ~ and ~ Standards, controls and restrictions regarding construction and development including, but not limited Co to, maximum land coverage, setbacks, and building con- struction shall be as required by the Tustin Municipal Code and the Handbook for Planning, Zoning and Develop- ment, as amended, adopted by Resolution of the Tustin City Council, and as mutually agreed upon by the Agency and the Developer in the approved construction drawings, plans and specifications. Access The placement of vehicular driveways shall be coordinated with the needs of street traffic flow. In the interest of minimizing traffic congestion, the Agency will control the number of curb breaks for access to the Site for off-street parking and truck loading. All excess driveways shall require written approval of the Agency. and Public Developer agrees to provide or cause to be provided the construction and installation of the following off-site public improvements or such other off-site public im- provements as the Public Works Director may approve pursuant to the terms and conditions of this Agreement: NEWPORT AVENUE Clearing and removals Roadway/bi ke excavation A.C. pavement/base material Curb and gutter S idew al ks Driveway aprons Bike trail paving Street lighting Storm drain/catch basin Signing and stripping Traffic signal (50% total) Fire hydrants SIXTH STREET Clearing and removals Roadway excavation A.C. pavement/base material Curb and gutter Driveway aprons Sidewalks Street lighting Signing and stripping Traffic signal (50% total) Fire hydrants MAIN STREET Clearing and removals Roadway excavation A.C. pavement/base material Curb and gutter S idew al ks Driveway aprons Street lighting Storm drain modification Signing and stripping Fire hydrants LAGUNA ROAD Curb and gutter Driveway apron Conventional and decorative sidewalk as required OFFICE COMPLEX -- OFF-SITE IMPROVEMENTS Concrete sidewalk/bike path 8,700 s.f. Decorative pavement (interlocking pavers) 3,350 s.f. 6" concrete curbs 350 lin. feet 12" wide cohcrete bands 550 lin. feet Concrete ramps 4 Concrete bollards 15 Planting area (groundcover, lawn, irrigation, soil preparation) 3,000 s.f. Canopy trees 21-36" box Palm trees 4-20' tall Formal shrubs at 2'-6" o.c. 230-15 gallon SHOPPING CENTER-- OFF-SITE I~PROVEMENTS Concrete sidewalk/bike path 10,250 s.f. Decorative payment (interlocking pavers) 5,500 s.f. 6" concrete curbs 350 lin. feet 12" wide concrete bands 600 lin. feet Concrete ramps 4 Concrete bollards 25 4' Concrete treewell covers 9 Planting area (groundcover, lawn, irrigation, soil preparation) 5,500 s.f. Canopy trees 46-36" box Palm trees 16-20' tall Formal shrubs at 2'-6" o.c. 165-15 gallon The Developer agrees to provide, or cause to be pro- vided, the construction and installation of all utili- ties on or for the Site, and all other on-site and off- site public improvements, except as specifically pro- vided herein as a responsibility of the Agency. All utilities to be provided by the Developer on the Site shall be underground or concealed within buildings at Developer's expense. The Developer shall make any street repairs or damages caused by the Developer's construction. These repairs shall be at Developer's sole expense and shall be constructed in accordance with the technical specifica- tions, standards, and practices of the City. The Developer agrees to join any assessment or maintenance district formed or hereafter formed by the City to provide for the maintenance of the off-site improvements constructed hereunder. Loading and unloading spaces shall be provided as re- quired by the Tustin Municipal Code. Loading spaces shall be located in a manner to avoid interference with public use of sidewalks and streets, and shall be constructed so that storm and surface waters will not drain across public sidewalks. Loading spaces visible from streets shall be landscaped or screened to prevent unsightly or barren appearance. E. Signs Signs shall conform to a master sign plan approved by the Tustin Planning Commission. Ail outdoor storage of materials or equipment shall be enclosed or screened by 6-foot high masonry wall to the extent and in the manner required by the Agency. Developer shall provide and maintain landscaping within the public rights-of-way along Newport Avenue and Main Street and within setback areas along all street fron- tages. The design for such landscaping along Newport Avenue and Main Street shall be in conformance with the plans approved by the Agency. Ail landscaping shall be integrated with the existing or proposed landscaping for adjacent sites in the Pro- ject Area. Landscaping includes such materials as paving, trees, shrubs, and other plant materials, land- scape containers, plaza furniture, top soil, soil pre- paration, automatic irrigation, landscape and pedes- trian lighting, and fountains, pools or other water elements. Landscape plans shall show the relationship of Developer's landscaping to that of the public right- of-way to be provided by the Agency. Landscape plans shall include plant material, irriga- tion, and street trees for public right of way areas, with species to be in conformance with the master street tree plan of the City. All exposed duct work for heating and cool cal equipment and other roof structur screened from the direct view of adjacent buildings in a manner approved by the roofs shall be treated in terms of arch color so that roofs are aesthetically p viewed from above. Parking shall consist of those parking spa to be constructed in conformance with CUP Tustin Municipal Code, and shall be desJ proved in accordance with applicable se( Code. Surface parking spaces shall ~ drained so that storm and surface waters the Site will not cross public sidewal areas visible from streets shall be 1 necessary to prevent unsightly or barrel Parking areas shall be properly and adequ~ hated and all such lighting shall be s adjacent properties and adjoining streets. During construction of the improvements oper, the Developer shall take all reaso~ tions to minimize dust and disturbance properties caused by construction. The Agency and the Developer shall grant and permit and appropriate easements and rights for the de vehicular access, pedestrian access, parking, san~ storm drains, water, electrical power, telephone, etc.