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HomeMy WebLinkAboutCC 8 RESCO DEVELOP. 01-06-86NSENT CALENDAR FROM: COI~4UNITY DEVELOPMENT DEPARTMENT SU BJ ECT: RESCO DEYELOPHENT RECOI~ENDED ACTION: Approve the Developer Participation Agreement between the Tustin Community Redevelopment Agency, Red Hill Edinger Partnership and the city of Tustin and authorize the Mayor to execute the Agreement. BACKGROUND: The Redevelopment Agency has previously approved the plans proposed by Resco Development for the construction of 62,100 square feet of R&D office and 5,470 · square feet of restaurant use on a 4.7 acre site, located on the northwesterly corner of Red Hill and Edinger Avenues. The original development concept was amended to incorporate restaurant use, on the condition that the Redevelopment Agency contribute up to $250,000 toward the cost of public improvements necessary to support the project. An analysis of costs and revenues was completed prior to the Redevelopment Agency's approval in concept of the $250,000 public improvement contribution, which indicated that return from the project in the form of sales taxes and property tax increments would repay the Agency contribution within five years. A Development Par%icipation Agreement has been prepared between the Tusttn Community Redevelopment Agency, the city of Tustin, and the Red Hill Edinger Partnership (the limited partnership Resco has formed to carry out the development), which outlines the obligations of the Agency, the City, and the Developer. The Agreement provides that: 1) The city of Tustin will loan funds to the Tustin Community Redevelopment Agency in an amount not to exceed $250,000 for the purpose of carrying out the Agency's obligations under the Agreement. The Agency will repay the loan as soon as tax increment funds are available for that purpose. 2) If construction of the project is complete within one (1) year of the date of the Agreement, the Tustin Community Redevelopment Agency will reimburse the Developer for the actual cost of specific off-site public improvements in an amount not to exceed $250,000. C~ty Council Resco page t~o 3) Reimbursable public improvement expenditures will be those based on plans and bids approved by the city Public Works Director. The Redevelopment Agency action of April 25, 1985, approving the $250,000 public improvement contribution also contemplated the payment of Circulation Improvement Fund fees for the development. The Agency should be aware that, since the building permit for the R&D portion of the development was approved prior to the effective date of the Circulation Improvemnt Fee peogram, fees will not be collected for this portion of the development. The restaurant site will, however, be subject to Circulation Improvement fees. )4/~.ILYN W~ISENAND, Redevelopment Consul rant MW:do Community Development Department DEVELOPMENT PARTICIPATION AGREEMENT By and Between TUSTIN COM~3NITY REDEVELOPMENT AGENCY, Age n cy, REDHILL EDINGER PARTNERSHIP, A California Limited partnership Developer, and CITY OF TUSTIN, A Municipal Corporation City DEVELOPMENT PARTICIPATION AGREEMENT THIS AGREEMENT is made and entered into by and between the TUSTIN COMMUNITY REDEVELOPMENT AGENCY ("Agency"), REDHILL EDINGER PARTNERSHIP, a California Limited Partnership ("Developer"), and the CITY OF TUSTIN, a municipal corporation ("City"). The Agency, Developer and City agree as follows: [100] A. RECITAL S [101] South/Central Redevelo?ment Project Plan. as amended The City has adopted by ordinances the South/Central Redevelo~,ent Project Plan and Amendment No. 1, (hereinafter sometimes referred to as "the Plan") which ordinances, Plan and Amendment are on file with the City Clerk. B. [102] TJ3_~ Developer leases the Site which is located in the City and within the boundaries of the South/Central Redevelopment Project Plan Area, as amended. The Site is that portion of the Amended South/Central Redevelopment Project Plan Area shown on Exhibit "A", having the legal description set forth in Exhibit "B", both of which Exhibits are attached hereto and incorporated herein by this reference. C. [103] Develo_~nent of the Site Developer plans to construct a 5,470 square foot restaurant and two buildings to be used for research and development, totaling 62,100 square feet on the Site. City has determined that certain off-site public improvements, consistent with the Plan and as specified by the City Engineer, are required for development of the Site. Developer has requested reduction of Developer's cost obligations to pay for the required off-site public improvements. City and Agency have determined that Developer would be unable to proceed with development of the Site as planned if Developer had to bear the entire cost of said public improvements. D. [104] Contribution in aid of Construction The Agency wishes to make a contribution in aid of con- structing the off-site public improvements. City has determined that the public improvements to be constructed (1) are of benefit to the South/Central Redevelopment Project Area, as Amended, (2) that without a contribution in aid of construction by Agency, there are no other reasonable means of financing such public improvements available to the community, and (3) that City con- sents to the payment of a contribution in aid of construction by Agency. E. [105] Purpose of Agreement The purpose of this Agreement is to effectuate the South/Central Redevelopment Project Plan, as amended, by pro- viding for development of the Site with the required off-site public improvements. The development of the Site pursuant to this Agreement, and the fulfillment 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. F. [106] City Loan to AGency City wishes to loan to Agency and Agency wishes to borrow from City an amount up to Two Hundred Fifty Thousand Dollars ($250,000.00) to effectuate the purpose of this Agreement. II. [200] PARTIES TO THE AGREEMENT A. [201] he~ 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. B. [202] The Developer, Redhill Edinger Partnership, is a California Limited Partnership organized and existing pursuant to the laws of the State of California. The General Partners of Developer are Michael Todd, Ronald Soderling and Richard Boureston. The principal office of Developer is located at: 3355 Via Lido, Suite 205, Newport Beach, CA 92663. Wherever the term "Developer" is used herein, such term shall include any permitted nominee or assignee as herein provided. C. [203] The City The City is the City of Tustin, a municipal corporation, duly organized and existing under the laws of the State of Cal if or ni a. The principal office of the City is located at 300 Centennial Way, Tustin, California 92680. NOW, THEREFORE, in consideration of the mutual promises herein, the Parties agree as follows: III · [30O] A. DEVELOPMENT OF THE SITE [301] Development of the Site 1. [302] $¢00e of Development The Site shall be developed by the Developer in accordance with and within the limitations established therefor in the "Scope of Development" (Exhibit "C"). 2. [303] 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. 3. [304] Schedule of Performance The Developer shall promptly and diligently prosecute to completion the construction of the improvements thereon and the development thereof as provided in the Scope of Development (Exhibit "C"). The Developer shall complete all construction and development within the time specified in the "Schedule of Per- formance'' or within such reasonable extensions thereof as may be granted by the Agency. The Schedule of Performance (Exhibit "D") 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 construc- tion 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. 4. [305] Indemnification Durin~ Construction: B0~ily Iniurv 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, $1,000,000.00 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. 5. [306] City and Other Governmental Agency Permits 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 permit s. 6. [307] R~ght 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. 7. [308] 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. 8. [309] Antidiscrimination During 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. [310] 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. [311] Prohibition Aaainst Transfer 1. [312] 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 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 and City 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 Agreement may be terminated by the Agency and City 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 per- mitted transfers of partnership interests among partners and affiliates) prior to issuance of a Certificate of Completion for the Site as hereinunder provided. D. [313] SecuritY Financing: Right of Holders 1. [314] No Encumbrances Except Mortgages. Deeds of Trust Sales and Lease-Back or Other Financing for Development Notwithstanding Section 316, 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 construction of the on-site improvements, 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 promptly notify the Agency of any mortgage, deed of trust, sale and lease-back, or other form of conveyance for financing, that has been created or attached thereto prior to recordation of a Certificate of Completion, whether by voluntary act of the Devel- oper 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. [315] ~older 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 approved by City and 3. [316] Agency. Notice of Default to Mortgage. Deed of Trust or Other Security Interest ~olders: Right to Cure Whenever the Agency or City shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer under this Agreement, the Agency or City 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 or City 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 Devel- oper's obligations to the City and Agency by written agreement satisfactory to the City and 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 re- lates, 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. [317] F~ilure 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 316 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) All 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. [318] Right of the Agency to Cure Mortgage, Deed of Trust. Other Security Interest, Lease-Back or Other Conveyance for Financing 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 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. [319] Certificate of Completion Promptly after (i) completion of all construction and development to be completed by the Developer, including the off- site public improvements (see Section 400), and (ii) payment of fees by Developer as required by City, the Agency shall furnish the Developer with a Certificate of Completion. The completion of construction and the payment of fees by Developer are condi- tions precedent to Agency's obligation to furnish a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, a conclusive determination of full compliance with the construction required by this Agreement, and of full compliance with the terms hereof with respect to payment of fees required to develop the Site. 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 any covenants contained in the deed, lease, mortgage, deed of trust, contract, or other instrument of transfer which shall include the provisions of Sections 600 through 604 (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 default in or breach of any provision of this Agreement, and the respective rights and obli- gations 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 shall be in such form as to permit it to be recorded in the Recorder's Office of Orange Co unty. 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 reasons the Agency refused or failed to furnish a Certificate of Completion. The statement shall al so 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. IV. [400] A. [401] OFF-SITE PUBLIC IMPROVEMENTS Required Off-Site Improvements The off-site public improvements required for the develop- ment of the Site and their estimated cost of construction are as set forth in the Scope of Development, Exhibit "C", attached hereto and incorporated herein by this reference. B. [402] Construction and Installation In order to coordinate the development on the Site and the construction of the off-site public improvements, the Developer agrees to construct and install the off-site public improvements specified in the Scope of Development (Exhibit "C"). 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 (Exhibit "C"). The Plans shall be submitted to the Public Works Director of City for review and approval before bids are solicited by Developer as hereinafter provided. Developer shall solicit bids and award contracts for construction and installation of the improvements specified in the Scope of Development (Exhibit "C") 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 proposed change orders to contracts awarded shall be submitted to the Public Works Director of City for review and approval before they are authorized by Developer. 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, Exhibit "C". 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 California rated Grade A, or better, and Class IV, 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): A. 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. B. 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. Upon completion of construction of said off-site improvements, a final accounting shall be made to establish the cost thereof. A complete record of all monies expended or paid shall be submitted to City's Public Works Director for review. 10 Ve [500]. COST AND PAYMENT O~LIGATIONS A. [501] City Loan to Agency Subject to the provisions of Section 504 of this Agreement, City agrees to loan Agency up to and not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) for the purpose of Agency's contribution in aid of construction to Developer, pursuant to Section 503 of this Agreement, for the actual cost of construc- tion of the off-site public improvements. B. [502] Repayment bv Agency Pursuant to Health and Safety Code Section 33601, Agency agrees that the sum loaned by City to the Agency shall be repaid to City as follows: A. Simple interest on said sum shall accrue at the rate of eight percent (8%) per annum from the date of transfer of said sum to Agency until such time as said sum is repaid to City. B. The sum loaned to the Agency, as well as accrued interest thereon, shall be repaid to City by the Agency from tax increment revenues received pursuant to Health and Safety Code Sections 33670, Bt seq. C. If no funds become available to the Agency to repay said sum, the money loaned and accrued interest thereon is forgiven and need not be repaid to City. The foregoing obligation of the Agency shall constitute an indebtedness of the Agency for the purpose of carrying out the Plan for the South/Central Redevelopment Project Area, as amended, but shall be subordinate to any financial obligations assumed by Agency pursuant to the issuance of bonds. C. [503] Agency's Contribution in Aid of Subject to the provisions of Section 504, Agency agrees to pay Developer an amount up to and not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) for the actual cost of constructing the off-site public improvements. Such actual cost shall not include fees or administrative and general expenses of Developer. Said payment by Agency shall be made after the completion of construction of said improvements and the final accounting to establish the cost thereof, in accordance with Section 402. 11 D. [504] ~ilure to Complete Construction Within One Year If construction by Developer is not completed within one year after the date of execution of this Agreement, Agency shall not be obligated to pay Developer any amounts as provided in Section 503, and; City shall not be obligated to loan any amounts to Agency as provided in Section 501. VI. [600] USE OF THE SITE A. [601] 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 Exhibit "C"); and 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 (Exhibit "C") in a healthy condition. B. [602] 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. [603] ~9rm of Nondiscrimination and Nonsegregation 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: 12 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: 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." 13 D. [604] Effect and Duration of Cqvenants 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 602 and 603) shall remain in perpetuity. E. [605] ?ublic Agency Riahts 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. VII. [700] DEFAULTS, REMEDIES AND TERMINATION A. [701] Defaults-General Subject to the extensions of time set forth in Section 805, failure or delay by any 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 default. 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 707 and 708 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. 14 Except as otherwise expressly provided in this Agreement, any failure or delay by any 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 another party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. B. [702] 1. [703] Institution of Legal Actions In addition to any other rights or remedies, any 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 ac- tions may be instituted in the Superior Court of the County of Orange, State of California, or in an appropriate municipal court in that County. 2. [704] The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [705] Acceptance of Service of Process In the event that any legal action is commenced by the Developer against the City and/or Agency, service of process on the City and/or Agency shall be made by personal service upon the Chairman, Executive Director or Secretary of the Agency, or upon the City Clerk for City, 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 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 California. C. [706] Rights 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. 15 D. [7071 a/~ 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. [708] ~Decific 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. VIII. [800] GENERAL PROVISIONS A. [ 801] Notices. Demands and Communications Between the Parties Formal notices, demands and communications among City, 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 City, the Agency, and the Developer. Such written notices, demands and communications 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. [802] Conflict of Interests No member, official or employee of the City or 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. [ 803] 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 16 costs of conducting business and costs of professional services such as architects, engineers and attorneys. D. [ 804] Nonliabilty of Agency Officials No member, official or employee of the City or Agency shall be personally liable to the Developer, or any successor in in- terest, in. the event of any default or breach by the City or Agency or for any amount which may become due to the Developer or successor, or on any obligation under the terms of this Agree- me nt. E. [ 805] ~nforced Delay: 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 by City or by 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 ex- tension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only 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. [ 806] Inspection of Books and Records The City and Agency have 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. [807] Approval bv the City, Agency and the Developer Wherever this Agreement requires the Agency, City or the 17 Developer to approve any contract, document, plan, proposal, specification, drawing or other matter, such approval shall not be unreasonably withheld. IX. [900] SPECIAL PROVISIONS A. [ 901] Preference for Businesses Located Within Proiect Area The Developer agrees to provide reasonable preferences for businesses presently located within the South/Central Redevelop- ment 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 pre- ference 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. Xe [1000] ATTORNEYS' FEES A. [1001] 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. XI. [1100] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS A. [il0i] This Agreement constitutes 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. Ail waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the City, Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the City, Agency, and the Developer. 18 XII. [1200] DATE OF EXECUTION A. [1201] The date of execution of this Agreement shall be the date when this Agreement is last signed by a Party. TUSTIN COMMUNITY REDEVELOPMENT AGENCY Date: By: Chairman Date: By: Secretary CITY OF 5'JSTIN a Municipal Corporation Date: By: Mayor Date: By: City Clerk REDHILL EDINGER PARTNERSHIP a California Limited Partnership Date: By: * Date: By: * APPROVED AS TO FORM: JAMES G. ROURKE Agency General Counsel and City Attorney By: JGR:ARW :LEJ :cj s :R: 12/6/85 (la. cj p) 19 EXIt IB IT 'A' THE SITE E~IBIT mB" LEGAL ~ OF ~ The estate or interest in the land hereinafter described or referred to covered by this report is: A Fee Title to said estate or interest at the date hereof is vested in: HULLIN LURER CO., a corporation The land referred to in this report is situated in the State of California, County of Orange, City of Tustin, and is described as follows: That portion of Lot 66 in Block 10 of It-vine's Subdivision, as per ~ap recorded in Book ls Page 88 'of Hiscellaneous Haps in the office of the County Recorder of Said County, described as follows: Beginning at a point on the Southwesterly line Of the right of way of the Atchison, Topeka and Santa Pe Railway C~mpany, 100.00 feet wide, as described in the deed recorded June Ii, 1887 in;~ook 2&i, Page 223 of Deeds in the office of the County Recorder'of Los Angeles County, California, South $0 degrees l0t S0" East l~Si.?~_fset from the intersection of said Southwesterly line with the Southeasterly line of Newport' Avenue, 60.00 feet wide, aa shown on a map filed in look 34, Page 17 of record of surveys in the office of the County Recorder of said Orange County;.thence continuing South'50 degrees 10' SO" East 726.00 feet, ~ore or lees, to the Northwesterly line of Red Hill Avenue, 60.OS feet vide, as shovn on said nap; the~{~ along said Northwesterly line, South 39 degrees &8' &O~ WeeC 300.00 feet to a line parallel with and distant Southwesterly 300.00 feet from'_~aid~outhvssterly right of way linel thence along said parallel line, North' 50 degrees 10' S0" West 726.00 feec to a line parallel with said N~rthV'~sterly line of Red Nlll Avenue chat passes through the point of be&inning; thence North 39 degrees &8' lO" East 300.00 feet to the point of beginning. Except Chat portion thereof described as follows: Beginnins at the intersection of the Southwesterly 1/ns of the Northeasterly 350.00 feet of said lots with the Northwesterly line of the Southeasterly 30.00 feet of said lot; thence along said Northwesterly line, North 39 degrees 18~ 40" East 10.00 feet; thence parallel with the Northeasterly line of said lot, North 50 degrees l0t SO" West 20.00 feet; thence South 39 degrees 68' i0" Wast 20.00 feet parallel with the Southeasterly line o~ said lot; thence South 86 degrees ~8~ 39" West 28.28 feet to the intersection of the Southwesterly line of the Northeasterly 350.00 feet of said lot, with the Northwesterly line of the Southeasterly 70.00 feet o£ said lot; thence South ~0 degrees 10' 50" East 40.00 feet to the point o~ beginning. Except all oil, gas and other hydrocarbon and mineral substances lying nsc less than one hundred (100) feet below the surface of said land, provided that grantor~ his successors and assigns, shall not have the right to go upon the surface of said land for the purpose of e~tractlng said oil. sas or other hydrocarbon and mineral subs~aucss, nor for any purpose in connec~ion therewith, buc shall heys the risht co ex~ract and remova said oil, gas and other hydrocarbon and mineral substances by means of slan~-drilled wells located on nearby land, or by any ocher means which shall no~ rsquire entry upon the surface of said land, as reserved in the deed from San~a Fe Land Improvemen~ Company, a corporation, and recorded October 2, 1959. EXHIBIT "C" SCOPE OF DEVELOPMENT I. GENERAL DESCRIPTION The site contains approximately 4.7 acres in a rectangular shape which is located on the northwesterly corner of Redhill and Edinger Avenues. II. DEVELOPER'S RESPONSIBILITIES On the site the Developer shall develop and construct two (2) Research and Development buildings totalling 62,100 square feet and one (1) restaurant of 5,470 square feet on a 4.7 acre site. 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, construction 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 subject 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 development: A. Standards, Controls and Restrictions Standards, controls and restrictions regarding construction and development including, but not limited to, maximum land coverage, setbacks, and building construction shall be as required by the Tustin Municipal Code and the Handbook for Planning, Zoning and Development, 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. B. Vehicular 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. Resco Exhibit "C" page two C. Utilities .and Public Improvements 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 improvements as the Public Works Director may approve pursuant to the terms and conditions of this' Agreement: CONSTRUCTION ITEMS LIST NORTHWEST CORNER OF REDHILL AVE. AND EDINGER AVENUE Work Item Quantit¥ Grading & Demolition Paving A.C. Pavement Feather/Pavement Join Relocate gas line marker Adjust manhole to grade 1L.S. 1 L.S. 2,233 tons 1,110 s.f. 2 each 1 each e Concrete Type A-2 curb and gutter P.C.C. sidewalk Driveway apron Handicap ramp Type "A" curb and gutter Embossed concrete i L.S. 705 L.F. 6,390 s.f. 3,791 s.f. 9 each 582 L.F. 3,270 L.F. Water mai n/hydrant 10" A.C. pipe 8" A.C. pipe 6" A.C. pipe Miscellaneous fittings 1 L.S. 730 L.F. 22 L.F. 20 L.F. 1 L.S. Storm drain 36" R.C.P. 24" R.C.P. Catch basin Local depression Junction structure Brick and mortar plug 1 L.S. 86 L.F. g L.F. 1 each 1 each 1 each 1 each 5 Edison Street light standards 2" PVC street light Conduit 1L.S. 9 each glO L.F. 7. Civil Engineer 1 L.S. Resco Exhibit "C" page three Traffic signal-Agency reimbursement to pro-rata costs as follows: a. Controller b. Loops c. Stgnal standards and related work 1 L.S. 255 of actual COSt 19~ of actual cost 25~ of actual cost The Developer agrees to provide, or cause to be provided, the construction and installation of all utilities on or for the site, and all other on-site and off-site public improvements, except as specifically provided 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 of 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 specifications, 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 Loading and unloading spaces shall be provided as required 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. Signs Signs shall conform with the city of Tustin Sign Code. A master sign plan for the industrial buildings shall be submitted for review and approval by the Community Development Department. Screening All 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. Resco Exhibit "C" page four F. Landscapin~ Developer shall provide and maintain landcaping within the public rights-of-way along Red Hill Avenue and Edinger Avenue and within setback areas along all street frontages. The design for such landscaping shall be in conformance with the plans approved by the Agency. All landscaping shall be integrated with the existing or proposed landscaping for adjacent sites in the Project Area. Landscaping includes such materials as paving, trees, shrubs, and other plant materials, landscape containers, plaza furniture, top soil, soil preparation, automatic irrigation, landscape and pedestrian 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. Landscape plans shall include plant material, irrigation, and street trees for public right of way areas, with species to be in conformance with the master street tree plan of the city. H. Roofs All exposed duct work for heating and cooling, mechanical equipment and other roof structures shall be screened from the direct view of adjacent property or buildings in a manner approved by the Agency. All roofs shall be treated in terms of architecture and color so that roofs are aesthetically pleasing when viewed from above. I. Parkin9 Parking shall consist of those parking spaces necessary to be constructed in conformance with the Tustin Municipal Code, and shall be designed and improved in accordance with applicable sections of the Code. Surface parking spaces shall be paved and drained so that storm and surface waters draining from the site will not cross public sidewalks. Parking areas shall be properly and adequately illuminated and all such lighting shall be shielded from adjacent properties and adjoining streets. J. Construction During construction of the improvements by the Developer, the Developer shall take all reasonable precautions to minimize dust and disturbance to adjacent properties caused by construction. III. EASEMENTS The Agency and the Developer shall grant and permit all necessary and appropriate easements and rights for the development of vehicular access, pedestrian access, parking, sanitary sewers, storm drains, water, electrical power, telephone, natural gas, etc. EXHIBIT D SCHEDULE OF PERFORMANCE Submittal of Basic Concept Drawings. The Developer shall prepare and submit to the Agency for approval basic concept drawings and related documents for the site. Status: Completed. Execution of Agreement by the Agency. The Agency shall execute and deliver this Agreement to the Developer. Status: Within 30 days after execution of this Agreement by the Developer. Approval of Basic Concept..Drawings. The Agency shall approve or disapprove basic concept drawings and related documents for the site. Status: Completed. Submittal of Final Construction Drawings and Final Landscaptn9 Plan. The Developer shall prepare and submit to the Agency the final construction drawings and specifications and a final landscaping and finish grading plan. Status: Completed. Approve of Final Construction Drawings and Final Landscapin9 Plan. The Agency shall approve or disapprove the final construction drawings and specifications and a landscaping and finish grading plan. Status: Completed Commencement of Construction. Developer shall commence construction of improvements on the site. Status: Commenced construction. Completion of Construction. improvements on the site. Developer shall complete the construction of Status: Within 365 days after commencement of construction. Public Improvements. The Developer shall commence and complete construction of the public off-site improvement work referred to in the Scope of Development (Exhibit "B") to be performed by the Developer with respect to the site. Status: On a schedule which will coordinate with the construction schedule of the Developer for completion of construction by Developer on the site, but in no event later than one year from the date of the execution of the Development Participation Agreement.