HomeMy WebLinkAbout12 DISPOSITION & DEVELOPMENT AGMT (DDA) WITH CALATLANTIC GROUP, INC., FOR DISPOSITION PACKAGE 6B (LOT 19) AT TUSTIN LEGACYlr��Y OAGENDA REPORT
MEETING DATE: FEBRUARY 6, 2018
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: ECONOMIC DEVELOPMENT DEPARTMENT
Agenda Item 12
Reviewed:
City Manager
Finance Director
SUBJECT: DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) WITH
CALATLANTIC GROUP, INC., FOR DISPOSITION PACKAGE 6B (LOT
19) AT TUSTIN LEGACY
SUMMARY:
Request for authorization to approve the DDA between CalAtlantic Group, Inc.
(Developer) and the City for the development of the Levity for -sale residential community
consisting of 218 homes on approximately 14.5 net acres. The DDA specifies the terms
and conditions under which the City owned property, known as Disposition Package 6B
(Lot 19), will be conveyed and developed by CalAtlantic Group, Inc. The purpose of the
DDA is to implement the Reuse Plan for MCAS Tustin and the Specific Plan for Tustin
Legacy through the development and maintenance of the property.
RECOMMENDATION:
Authorize the City Manager to execute the DDA between the Developer and the City
subject to non -substantive modifications as may be deemed necessary and/or
recommended by the City's special real estate counsel or the City Attorney.
FISCAL IMPACT:
The property will be disposed of in a single phase for an initial disposition price of
$35,543,855. This price includes the Base Purchase Price for the land of $34,202,712
and the Project Fair Share Contribution of $1,341,143 to be allocated towards backbone
infrastructure improvements at Tustin Legacy. In addition to the Base Purchase Price,
the City will receive Profit Participation at a rate of 50% in the event the Developer's net
revenue exceeds 8.5%.
Negotiation costs, such as legal, third party consultants and staff costs incurred by the City
are reimbursed by the Developer in accordance with the Exclusive Negotiation Agreement
(ENA). Upon execution of the DDA, the Developer shall submit a City Costs Deposit to pay
for the City's staff costs and third party out-of-pocket expenses incurred by the City in
implementing the DDA through the close of escrow or in the event the DDA is terminated
prior to conveyance. The Developer shall replenish the City Costs Deposit as needed to
Agenda Report — DDA, CalAtlantic Group, Inc.
February 6, 2018
Page 2
cover all of the City's Transaction Expenses.
CORRELATION TO THE STRATEGIC PLAN:
This action correlates to the City's Strategic Plan for Economic and Neighborhood
Development (Goal A).
BACKGROUND:
On February 21, 2017, the City entered into an ENA with the Developer to negotiate the
conveyance and development of a for -sale, residential community on approximately 14.5
net acres consisting of 218 homes in three product types. Since then, the City Manager
has issued two extensions to the ENA making it effective until February 18, 2018.
On November 28, 2017, the Planning Commission reviewed the entitlement application
for the proposed project and recommended that the City Council approve the project. On
January 16, 2018, the City Council reviewed the subject project taking into account the
Planning Commission's recommendation and approved the project.
DDA SUMMARY:
Project Description
The Developer will improve the property with 218 for -sale residential dwelling units
comprised of three products with an average density of approximately 15 dwelling
units per acre. The three products will consist of detached cluster residences (57),
attached row townhomes (101), and motorcourt flats (60) offering from two to four
bedrooms. Common open space, a portion of which would be publicly accessible,
and amenities including a pool and pedestrian plaza are proposed to serve the
development. The community utilizes a contemporary architectural aesthetic.
Pending Merger
There is a pending merger between CalAtlantic Group, Inc. and Lennar Corporation
which would create the nation's largest homebuilder. The merger is scheduled to
close later this month. The DDA takes into account this pending merger and
provisions have been crafted accordingly to ensure financial capability and expertise
will be available to complete the project. The project will be built under the
CalAtlantic or Standard Pacific flag/brand.
License Agreement
As part of the DDA, the Developer has requested a license agreement to allow for
the construction of the horizontal improvements (grading and utility work) prior to the
close of escrow which has an outside closing date of June 28, 2018. This would
Agenda Report — DDA, CalAtlantic Group, Inc.
February 6, 2018
Page 3
allow the Developer to commence construction of the project with approved plans
from the City while both parties work to complete items required for the close of
escrow over the next few months. As collateral for the license, the Developer will
deliver an additional earnest money deposit of $4,000,000 to increase the purchase
price deposit to a total of $5,000,000, applicable to the Base Purchase Price.
Schedule of Performance
The Schedule of Performance establishes outside dates by which a particular item-
must
temmust commence or have been completed by. The Developer's project schedule
anticipates completing these items prior to the outside dates allowing for any
unanticipated events and issues. In the event of non-performance, a DDA default is
triggered. The milestone performance dates following close of escrow are as
follows:
Grading Work Commences
Model Home Construction Commences
Model Home Completion
Horizontal Improvements Complete
Project Completion
City Rights of Repurchase and Reversion
3 Months (by September 28, 2018)
12 Months (by June 28, 2019)
18 Months (by December 28, 2019)
36 Months (by June 28, 2021)
46 Months (by April 28, 2022)
One of the City's goals for Tustin Legacy is to ensure that development occurs in an
orderly manner; therefore, the City does not convey property to private parties for
land speculation. This has been addressed in the DDA by preserving the Right of.
Repurchase and the Right of Reversion for the City. These rights can only be
exercised by the City if there is a Material Default by the Developer and the
Developer fails to cure the default.
DISCUSSION:
As proposed, the development will provide needed for -sale housing opportunities within
Tustin and the region. The three product types fill a void in the Tustin Legacy residential
market by providing for -sale residential products with price points below Greenwood,
making them more accessible to a larger segment of the population. The project site is
contiguous to both the Greenwood and Anton Legacy communities which provides an
appropriate transition in the pattern of development at Tustin Legacy. In addition, the
Developer and future entity (CalAtlantic/Lennar merger) have demonstrated to staff the
financial capability and expertise to execute on the project.
Agenda Report — DDA, CalAtlantic Group, Inc.
February 6, 2018
Page 4
ohn Buchanan
mic Development Director
Y
Ryan Swiontek
Senior Management Analyst
Economic Development Department
Attachment: DDA between the City of Tustin and CalAtlantic Group, Inc.
TUSTIN LEGACY
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR DISPOSITION PARCEL 6B
by and between
CITY OF TUSTIN
and
CALATLANTIC GROUP, INC.,
A DELAWARE CORPORATION
DATED: __________________
TABLE OF CONTENTS
1.Subject and Purpose of Agreement; Parties; Applicable Requirements...........................1
1.1.Background Regarding MCAS Tustin..................................................................1
1.2.Description of Development Parcels....................................................................2
1.3.Purpose of Agreement...........................................................................................3
1.4.Parties to the Agreement.......................................................................................3
1.5.Federal Requirements Applicable to Tustin Legacy.............................................4
1.6.Local Requirements Applicable to Tustin Legacy................................................4
1.7.Not a Development Agreement............................................................................5
1.8.City Transaction Expenses and Independent Contract Consideration..................5
1.9.Definitions; Attachments......................................................................................6
2.Prohibition against Transfers and Transfer of Control.....................................................7
2.1.Importance of Developer Qualifications...............................................................7
2.2.Transfers and Transfers of Control.......................................................................7
2.3.Remedies for Improper Transfers or Transfers of Control.................................15
2.4.Changes...............................................................................................................15
3.Representations and Warranties......................................................................................16
3.1.....................................................16
3.2.Developer Covenants Regarding Representations and Warranties....................19
3.3.City Representations and Warranties..................................................................19
4.Conveyance of Property from City to Developer...........................................................20
4.1.Conveyance of Property......................................................................................20
4.2.Purchase Price.....................................................................................................22
4.3.Payment of Base Purchase Price.........................................................................23
4.4.Escrow and Joint Escrow Instructions................................................................24
4.5.-........................................................24
4.6.Covenants; Preconditions to Close of Escrow....................................................31
4.7.Guarantor Illiquidity Event.................................................................................34
5.......................................................................35
5.1.Due Diligence Period..........................................................................................35
5.2.No Financing Contingency.................................................................................35
5.3.Termination of Agreement..................................................................................35
5.4.Limited License..................................................................................................36
5.5.Indemnity............................................................................................................36
5.6.Review of Certain Records and Materials..........................................................37
5.7.Communications with City and Third Parties.....................................................37
6.Title; Survey....................................................................................................................38
6.1.Survey by Developer...........................................................................................38
6.2.Permitted Exceptions..........................................................................................38
6.3.Supplemental Title Reports.................................................................................39
6.4.ALTA Policy; Endorsements..............................................................................39
6.5.City Title Policy..................................................................................................40
7.Closing............................................................................................................................40
7.1.Time and Place of Closing..................................................................................40
7.2.Conditions Precedent to Close of Escrow...........................................................41
7.3.Additional Close of Escrow Conditions.............................................................47
7.4.Procedures for Conveyance................................................................................48
8.Development of the Property and Additional Covenants of Developer and City...........51
8.1.Scope of Development........................................................................................51
8.2.Timing and Conditions of Project Development................................................52
8.3.Land Use Matters................................................................................................53
8.4.Design Approval.................................................................................................55
8.5.Financial Status...................................................................................................57
8.6.Project Budget Statement....................................................................................58
8.7.District Fees and Other Fees and Exactions.......................................................58
8.8.Final Map............................................................................................................61
8.9.Construction of Improvements by Developer.....................................................61
8.10.Tustin Legacy Backbone Infrastructure Program...............................................63
8.11.Outside Date of Completion of Construction.....................................................63
8.12.Development Covenants.....................................................................................63
8.13.City Rights of Access..........................................................................................65
8.14.Disclaimer of Responsibility by City and Exculpation.......................................65
8.15.Local, State and Federal Laws............................................................................66
8.16.Liens, Taxes and Assessments............................................................................67
8.17.City Additional Covenants..................................................................................67
9.Certificate of Compliance...............................................................................................68
9.1.Completion; Schedule of Performance...............................................................68
9.2.Certificate of Compliance Defined.....................................................................68
9.3.Conditions Precedent for Certificate of Compliance..........................................68
9.4.Conclusive Presumption.....................................................................................69
9.5.Not Evidence.......................................................................................................69
9.6.City Obligations..................................................................................................69
9.7.Effect of Certificate of Compliance; Termination of Agreement.......................70
10.Indemnification and Environmental Provisions..............................................................71
10.1..............................................................................71
10.2.Environmental Indemnity...................................................................................72
10.3.Duration of Indemnities......................................................................................72
10.4.Claim Response..................................................................................................73
10.5.Release Notification and Remedial Actions.......................................................73
10.6.Conflict with Section 330 and Other Federal Government Obligations.............74
10.7.Insurance and Indemnification............................................................................74
10.8.Selection of Counsel and Defense Obligations...................................................75
10.9.Settlement Procedures.........................................................................................75
11.Insurance.........................................................................................................................76
11.1.Required Insurance.............................................................................................76
11.2.General Insurance Requirements........................................................................79
12.Covenants and Restrictions.............................................................................................79
12.1.Use Covenant......................................................................................................80
12.2.Maintenance Covenant........................................................................................80
12.3.Duration of Covenants........................................................................................82
12.4.Profit Participation Price.....................................................................................82
12.5.Obligation to Refrain from Discrimination.........................................................82
12.6.Deed Restrictions/Covenants Running with the Land........................................83
12.7.Priority of DDA and Special Restrictions...........................................................83
12.8.Landscape Maintenance Agreement...................................................................83
12.9.Public Access Easement.....................................................................................83
12.10.Irrevocable Offer to Dedicate; Pedestrian Bridge...............................................84
13..........................................................................84
13.1.City Approval of CC&Rs....................................................................................84
13.2.-Association................................................85
14.Potential Defaults and Material Defaults........................................................................85
14.1.Potential Defaults................................................................................................85
14.2.Material Defaults................................................................................................86
14.3.Due Diligence Information; Products.................................................................87
15.Nonoccurrence of a Condition at Close of Escrow.........................................................88
15.1.Failure of a Condition Absent a Default.............................................................88
15.2.Failure of Close of Escrow For Reasons Other than Deposit Return Event.......89
15.3.Failure to Close; Default of City.........................................................................90
15.4.Failure to Close Escrow, Deposit Return Event.................................................91
16.Remedies for Defaults After the Close of Escrow..........................................................91
16.1.General Remedies...............................................................................................91
16.2.Lien Rights..........................................................................................................91
16.3.Right of Purchase................................................................................................92
16.4.The Right of Reversion.......................................................................................95
16.5.Access and Inspection.........................................................................................98
16.6.Obligations and Release Following Repurchase or Reversion...........................99
16.7.Cooperation of Developer.................................................................................103
17.General Provisions........................................................................................................103
17.1.Applicable Law; Consent to Jurisdiction; Service of Process..........................103
17.2.Legal Fees and Costs........................................................................................103
17.3.Modifications or Amendments.........................................................................104
17.4.Further Assurances............................................................................................104
17.5.Rights and Remedies Are Cumulative; Limitation on Damages......................104
17.6.Notices, Demands and Communications between the Parties..........................105
17.7.Delay.................................................................................................................107
17.8.Conflictof Interest............................................................................................109
17.9.Non-liability of City Officials and City or Developer Employees...................109
17.10.Inspection of Books and Records.....................................................................109
17.11.Consents and Approvals...................................................................................109
17.12.No Real Estate Commissions............................................................................110
17.13.Date and Delivery of Agreement......................................................................110
17.14.Constructive Notice and Acceptance................................................................111
17.15.Survival of Covenants, Representation and Warranties...................................111
17.16.Construction and Interpretation of Agreement.................................................111
17.17.Time of Essence................................................................................................112
17.18.Fees and Other Expenses..................................................................................112
17.19.No Partnership..................................................................................................112
17.20.Binding Effect...................................................................................................113
17.21.No Third-Party Beneficiaries............................................................................113
17.22.Counterparts......................................................................................................113
17.23.Duplicate Originals, Entire Agreement and Waivers.......................................113
17.24.Confidentiality..................................................................................................114
17.25.Proprietary and Governmental Roles; Actions by Parties................................115
17.26.Performance of Acts on Business Days............................................................115
17.27.Effectiveness. ..................................................................................................115
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR PARCEL 6B
THIS DISPOSITION AND DEVELOPMENT AGREEMENT FOR PARCEL 6B(the
AgreementEffective Date
February_______, 2018
City
between the CITY OF TUSTIN (as more fully defined in Section1.4.1
CALATLANTIC GROUP, INC., a Delaware corporation(as more fully defined in Section1.4.2,
Developer
PartyParties
.The Parties agree as follows:
Subject and Purpose of Agreement; Parties; Applicable Requirements
1..
Background Regarding MCAS Tustin
1.1..
1.1.1.Pursuant to the Defense Base Closure and Realignment Act of 1990, (PartA
Base
of Title XXIX of Public Law 101-510; 10U.S.C. Section2687
Closure Law
MCAS Tustin
Air Station-
was designated as the Lead Agency or Local Redevelopment Authority for preparation of a reuse
plan for MCAS Tustin in order to facilitate the closure of MCAS Tustin and its reuse in furtherance
of the economic development of the City and surrounding region. The MCAS Tustin Reuse Plan
developed in accordance with this procedure was adopted by the City Council of the City of Tustin
Reuse Plan
on October 17, 1996 and amended in September
1.1.2.A Final Environmental Impact Statement/Final Environmental Impact
Final EIS/EIR
Monitoring and Reporting Program for the Final EIS/EIR were adopted by the City on January 16,
2001. In March 2001, a Record of Decision was issued by the United States Department of the
Navy
he Final EIS/EIR and the Reuse Plan. Subsequently, a
Supplement to the Final EIR/EIS and an Addendum to the Final EIS/EIR were approved by the
City.
1.1.3.In May 2002, the Navy and the City entered into that certain Agreement
between the United States of America and the City of Tustin, California for the Conveyance of a
Portion of the Former Marine Corps Air Station Tustin dated as of May 13, 2002 (the
Memorandum of Agreement
MCAS Tustin to the City. On May 13, 2002, a total of 977 acres, including the Development
Parcels (as definedbelow) which are the subject of this Agreement, were conveyed by the Navy
to the City by quitclaim deed in accordance with the provisions of the Memorandum of Agreement.
The additional acreage was made subject to a ground lease by the City from the Navy. The 1,153
acres of MCAS Tustin located within the City of Tustin and either conveyed by the Navy to the
City or subject to ground lease between the Navy and the City is referred to in this Agreement as
Tustin Legacy
.
1.1.4.On February 3, 2003, the City adopted an ordinance approving the MCAS
Tustin Specific Plan/Reuse Plan setting forth the zoning and entitlement framework for future
development of Tustin Legacy. Since its initial adoption, the City has approved numerous Specific
General Plan.
1.1.5.The City desires to effectuate development of Tustin Legacy through the
sale and development of such property in accordance with applicable federal and local
requirementsand the City Council has previously adopted a Disposition Strategy for the Master
Disposition Strategy
Development Footprint
Tustin Legacy consistent with all City requirements, including the Specific Plan. Pursuant to its
Disposition Strategy, the City and Developer, formerly known as Standard Pacific Corp., entered
into that certain Tustin Legacy Disposition and Development Agreement for Disposition Packages
1B & 6A dated as of March 11, 2014 as amended, for the purpose of developing a residential
community at Tustin Legacy,and pursuant to such agreement, the City conveyedapproximately
74 acres of landcomprised ofportions of Disposition Packages 1 and6,which property is currently
being .
1.1.6.Consistent with the Disposition Strategy, theCity and Developer entered
ENA
into that certain Exclusive Agreement to Negotiate (Disposition Package 6
contemplatingthe sale of certain additional propertycomprising an additional portion of
Disposition Package 6,referred to herein as Disposition Package 6B, located adjacent to the
Greenwood community, and development thereon of the Project (defined below).
Description of Development Parcels
1.2..
1.2.1.The real property that is the subject of this Agreement consists of
approximately14.45grossacres of land located in the City of Tustin, County of Orange,
Development Parcels
California, as depicted on Attachment2
Effective Date, the Development Parcels are owned in fee by the City. The Development Parcels
comprise the land described in Disposition Package 6Bconsisting of a portion ofthe land conveyed
by the Navy to the City as Parcel I-H-1 in Navy Quitclaim Deed H and a portion of Parcel II-H-9
in Navy Quitclaim Deed II-G-5 and II-H-9, as subsequently reparcelized. The Property is located
in Specific Plan Neighborhood G, Planning Area 15 and is referred to in the Navy Reuse Plan as
a portion of Parcel 27 and a portion of Carve-Out 8.
1.2.2.As part of the transactions contemplated herein, prior to the Close of
Escrow,Developer shall process a Tentative Tract Map and a FinalMap for the Development
Parcelspursuant to the Subdivision Map Act and the City Code as generally depicted on the Site
Plan attached as Attachment3,which shall provide for the division ofthe Development Parcels
into eight(8)numbered Lots(as definedbelow)for thedevelopment of two hundred and eighteen
(218)Homes (as defined below)and two(2) lettered Lots for Common Area.
Purpose of Agreement
1.3..
1.3.1.The purpose of this Agreement is (a)to effectuate the Reuse Plan and the
Specific Plan, in accordance with the terms and conditions set forth therein and in the
Memorandum of Agreement and the Federal Deed, through disposition and development of
portions of Tustin Legacy as further describedin this Agreement and (b)to provide for the sale
and conveyance of the Property (as defined below) and its maintenance and use in accordance with
the requirements of this Agreement.
1.3.2.This Agreement further provides for development by Developer on the
Development Parcels ofthefollowing Improvements: (a)the Horizontal Improvements,as further
described onAttachment8anddepicted onAttachment9;(b)thePhase Improvements;and (c)the
Vertical Improvements, generally consisting of a residential condominium project and containing
on the Development Parcels approximately two hundred and eighteen (218)Homes for sale to
Homebuyers in three product types at an average density of approximately fifteen (15)dwelling
[[686,1147,737,1204][12][B,I,][Times New Roman]],
unitsper gross acreand a completeaccompanying set of amenities, all as further described inthe
Scope of Development attached hereto as Attachment8.The Homes shall consistof approximately
one hundred and one (101)row townhomesinsixteen (16)Buildings, approximately sixty (60)
motor court flats insix(6)Buildings andapproximately fifty-seven (57)detached single family
residences developed in approximately ten (10)clusters. The proposed development of the
Property described above and as further described in this Agreement is referred to herein as the
Project
1.3.3.The Vertical Improvements,the Horizontal Improvementsand the Phase
Improvements
Improvementsby
Developer in a manner consistent with the Specific Plan, the Reuse Plan, the Approved Plans, the
Entitlements and all applicable Governmental Requirements.
1.3.4.The disposition of the Property, the development and Completion of the
Project pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital
and best interests of the citizens of the City and the health, safety and welfare of its residents, and
are in accord with the public purposes and provisions of applicable federal, state, and local laws
and requirements.
Parties to the Agreement
1.4..
City
1.4.1.. The City is a municipal corporation of the State. The City has been
recognized as the Local Redevelopment Authority by the Office of the Secretary of Defense for
City
the former Marine Corps Air Station, Tustin, for purposes of the Base Closu
rights, powers and responsibilities, provided, however, that in the event the City exercises such
right to assign any of its proprietary obligations, such assignment shall not relieve the City of any
responsibility for its obligations, if any, under this Agreement. The City Council shall have the
right, in its sole and absolute discretion, to assign its rights and obligations to any agency or
instrumentality of the City. The principal office of the City and mailing address is 300Centennial
Way, Tustin, California 92780.
Developer
1.4.2.. Developer isCalAtlantic Group, Inc., a Delaware corporation.
Developer
greement, such term shall have the meaning set
forth in Attachment1. The principal office of CalAtlantic Group, Inc. and its mailing address is
15360 Barranca Parkway, Irvine, California 92618.
Relationship of City andDeveloper
1.4.3.. It is hereby acknowledged that the
relationship of the City andDeveloper is neither that of a partnership nor that of a joint venture.
Notwithstanding any provision of this Agreement, Developer is not, and shall not be deemed to
be, the agent of the City for any purpose, and shall not have the power or the authority to bind the
City to any contractual or other obligation. Prior to the Close of Escrow, Developer may only
characterize itself to third parties as the prospective purchaser and/or developer of the Property.
Developer shall not at any time hold itself out to the City or to any other third party as an agent of
the City, and shall not, by any act or omission, mislead any third party into believing, or allow any
third party to continue in the mistaken belief, that Developer is an agent of the City or has the
power or authority to bind the City to any contractual or other obligation.
Federal Requirements Applicable to Tustin Legacy
1.5..
1.5.1.The Parties acknowledge and agree that this Agreement is entered into as
part of an economic development conveyance of Tustin Legacy to the City pursuant to the Base
Closure Law, the Memorandum of Agreement and the terms and conditions of the Federal Deeds,
including the Environmental Restriction pursuant to California Civil Code Section1471contained
therein. Notwithstanding any provision to the contrary contained in this Agreement, this
Agreement is and shall be subject to the terms and conditions of the Memorandum of Agreement
and the Federal Deedsand the rights, obligations and remedies of the Federal Government
thereunder, and nothing contained in this Agreement shall be construed in a manner that is
inconsistent with the rights, obligations and remedies of the Federal Government thereunder.
1.5.2.Notwithstanding anything in this Agreement to the contrary, if any
provision of thisAgreement contradicts, modifies or in any way changes the terms of the
Memorandum of Agreement or the Federal Deeds, the terms of the Memorandum of Agreement
and Federal Deedsshall prevail and govern.
Local Requirements Applicable to Tustin Legacy
1.6..
ThisAgreement is subject to all Governmental Requirements, including the General Plan,
the Specific Plan, the City Code, the Reuse Plan and any redevelopment plan applicable to the
Property, provided, however, that the City acknowledges that, prior to the Closing, City and
Developer shall enter into a Development Agreement pursuant to Government Code
DA
Section65864[[598,2498,736,2555][12][,I,][Times New Roman]]et seq [[710,2498,760,2555][12][,,][Times New Roman]].
requiring Developer or the Property to comply with any Governmental Requirements imposed by
the City relating to entitlements or development of the Property shall be subject to the terms of the
DA and in the event of any inconsistency between such Governmental Requirements and the DA,
the Governmental Requirements required to be imposed pursuant to the DA shall control.
Not a Development Agreement
1.7..
This Agreement is not a development agreement as provided in Government Code
Section65864and, as further set forth inSection8.3.3, isnot a grant of any entitlement, permit,
land use approval, or vested right in favor of Developer, the Project or the Property. The City shall
use good faith efforts, within applicable legal constraints and consistent with applicable City
policies, to take such actions as may be necessary or appropriate to effectuate and carry out this
Agreement in a timely and commercially reasonable manner.
City Transaction Expenses and Independent Contract Consideration
1.8..
ENA Transaction Expenses
1.8.1.. Pursuant to the ENA, Developer has paid to
the City (a)a deposit of One HundredTwenty Five Thousand Dollars ($125,000) as supplemented
ENA Deposit
used by the City
third party predevelopment costs, including third party consultants, outside
counsel and other expenditures required in connection with the drafting, negotiation and execution
of this Agreement or the termination of the ENA, including any and allCity third party fees and
ENA Transaction
ExpensesStaff Costs Deposit
and (b)
Staff Costs
to offset City staff c.
After deducting from the ENA Deposit all ENA Transaction Expensesand after deducting from
the Staff Costs Deposit all Staff Costsincurred by the City with respect to the period ending on
the Effective Date, the City shall return the remaining ENA Deposit and the remaining Staff Cost
Deposit to Developer. Notwithstanding the termination of the ENA pursuant to Section17.23.2,
if the amount of ENA Transaction Expenses to the Effective Date exceeds the amount of the ENA
Deposit, Developer shall pay the City such outstanding amounts due within thirty (30) calendar
days following receipt of an invoice from the City therefor.
City Costs Deposit
1.8.2.. Upon the Effective Date and as a condition precedent
to the effectiveness of this Agreement, Developer shall deliver to the City a new deposit of $50,000
City Costs Deposit
in a bank or trust company selected by the City. If any interest is paid on such account, such
interest shall accrue to any balances in the account for the benefit of Developer and as additional
security for Developer obligations hereunder. One Hundred Dollars ($100) of the City Costs
Deposit s.From and after the
Effective Date, the remainder of the City Costs Deposit shall only be used by the City to pay the
staff costs andthird party out-of-pocket costsincurred by the Cityincluding third party fees
and costs incurred for legal counsel, financial, engineering and other consultants and any other
expenditures required in connection with the implementation of this Agreement or the termination
thereof, commencing with the Effective Date through the earlier of the conclusion of the
transaction associated with the Close of Escrow or termination of this Agreement (collectively, the
City Transaction Expenses
and for the purposes set forth in Section1.8.3, and the City Costs
Deposit will be depleted accordingly. If at any time the amount of funds in the City Costs Deposit
account is depleted below Twenty-Five Thousand Dollars ($25,000), Developer shall be required
to pay to the City each time an additional Twenty-Five Thousand Dollars ($25,000) which shall
be credited to the City Costs Deposit. Each such payment shall be deposited by the City into the
City Costs Deposit account and shall be applied to City Transaction Expenses in accordance with
the provisions of this Section1.8.2.Following the Close of Escrow or earlier termination of this
Agreement, the City shall be entitled to deduct from the City Costs Deposit the payment of all City
Transaction Expenses incurred with respect to the transactions described by this Agreement, and
any remaining City Costs Deposit shall be promptly returned by the City to Developer. In the
event that the City Costs Deposit is insufficient to cover the City Transaction Expenses, Developer
shall promptly pay to the City the outstanding amounts due.
Payment of City Transaction Expenses; Exclusions from City
1.8.3.
Transaction Expenses
. From and after the Effective Date, the City Costs Deposit may be used
by the City to pay the City Transaction Expensesand any ENA Transaction Expensesremaining
unpaid after the time period established for payment thereof in the last sentence of Section1.8.1.
Determination of costs, expenses, and fees constituting ENA Transaction Expenses and/or City
Transaction Expenses shall be made by the City in its reasonable discretion andDeveloper shall
upon request be entitled to receive summary notices from the City setting forth amounts
constituting ENA Transaction Expenses and/or City Transaction Expenses and related non-
confidential documents evidencing such expenses. Notwithstanding anything to the contrary in
this Agreement, the City and Developer hereby acknowledge and agree that neither the ENA
Transaction Expenses nor the City Transaction Expenses include: (a)any fees or deposits required
of Developer for processing entitlement applications; (b)any fees or costs for complying with
provisions of CEQA or its State CEQA implementing regulations; (c)any costs to review or
approve any applications or submittals by Developer to the City in connection with the Project;
(d)the Project Fair Share Contributionor any other development impact fees, exactions or other
costs imposed as conditions of approval with respect to the Entitlements or pursuant to the Other
Agreements or(e)any other matters in this Agreement that expressly require Developer to pay, at
its sole cost, for the expenses in connection with such matters, other than as expressly set forth in
this Section1.8. The obligation of Developer to pay for the ENA Transaction Expenses and the
City Transaction Expenses pursuant to this Section1.8
obligation to pay for any of the costs in the preceding sentence.
Definitions; Attachments
1.9..
1.9.1.Capitalized terms used in this Agreement, including in the Attachments
attached hereto, unless otherwise defined in this Agreement, shall have the respective meanings
specified in the Glossary of Defined Terms attached hereto as Attachment1. Unless otherwise
indicated, references in this Agreement to sections, paragraphs, clauses, exhibits, attachments and
schedules are to the same contained in or attached to this Agreement and all attachments and
schedules referenced in this Agreement are incorporated inthis Agreement by this reference as
though fully set forth in this Section.
1.9.2.
form of document, is consistent in all material respects, and none of the modifications in the
determined by the Party for whose benefit the condition is written, in its sole discretion.
Prohibition against Transfers and Transfer of Control
2..
Importance of Developer Qualifications
2.1..
Developer represents and agrees that its undertakings pursuant to this Agreement are for
the purpose of development of the Project and not for speculation in land holding. The Parties
further recognizeand agreethat the qualifications and identity of CalAtlantic Group, Inc. which is
a publicly traded company listed on the New York Stock Exchange(CalAtlantic Group, Inc.and
specifically excluding anyTransferee,successor or assign thereof, is referred to herein as the
Initial Developer
,and Initial Developer(a)that it has the financial capacity to
construct the Project without encumbering the Property with a Mortgageand(b)to remain fully
liable under this Agreementand the Other Agreements unless specifically releasedby the City
pursuant to Section2.2.3(c),Section9orSection16.6of this Agreement are of particular concern
to the City and community and in light ofthe following:
(i)The importance of the development of the Development Parcels and Tustin
Legacy to the general welfare of the community;
(ii)The fact that a Transfer of Control is for practical purposes a transfer of
rights and obligations under this Agreement or the Property; and
(iii)That it is because of the qualifications and identity of Initial Developer and
its Key Employees that the City is entering into the Agreement with Developer.
Transfers and Transfers of Control
2.2..
Restrictions on Transfers and Transfers and Control
2.2.1..
(a)For the reasons set forth in Section2.1, Developer, on behalf of itself
each Successor Owner and each and every Person claiming by, through or under Developer
or any Successor Owner(but specifically excluding any End Users), acknowledges and
agrees that, prior to the execution and Recording by the City of the Certificate of
Compliance:
(i)Any Transfer or Transfer of Control in contravention of this
Section2shall be a Material Default under this Agreement in accordance
withSection14.2.3.
(ii)Except as set forth in Section2.2.2, no Transfer or Transfer
ofControl shall be valid or have any force or effect unless the City shall
(iii)No Person shall acquire any rights or powers under this
Agreement except as set forth in this Section2.
(b)Notwithstanding any Transfersand/or Transfers of Control, Initial
Developer on behalf of itself, each Successor Owner and each and every Person claiming
by, through or under Developer or any Successor Owner(but specifically excluding any
End Users)agrees that:(i)Developer shall not be released with respect to matters for
which it remains liable pursuant to Section2.2.2(a), (b)and(c),and (ii)unless it is
released by the City as setforth inSection2.2.3(c),Section16.6or otherwise by the City
in writing,each Developershall remain fully liable forthe obligations of Developer under
this Agreement and the Other Agreements for such period as it is Developer under this
Agreement and for such longer period as may be applicableto it during the Additional
Liability Periodand that Developer shall remain liable with respect to terms of this
Agreement surviving such termination for the period described herein.
(c)In no event shall a Transfer or Transfer of Control be a Permitted
Transfer under this Agreement if it would have the result thatFive Point Holdings, LLC, or
itswholly or partially owned subsidiaries orother entities under its Control or itskey
FivePoint
management personnel (individually and would have any
ownership,management rights or management responsibilities with respect to the Project
or the Property, or that FivePoint would be the Controlling Person or exercise Control over
Developer.
(d)Notwithstanding any other provision of this Agreement to the
contrary, with respect to any Transfer occurring following the Close of Escrow, the
Transferee shall assume the obligation to pay all sums due under the Profit Participation
Agreementnot yet paidand accordingly shall include in the calculation of Gross Sales Price
(as defined in the Profit Participation Agreement) all consideration received by any
Developer or any Transferee for sale of Homes to members of the home-buyer public,
including any Premiums and prices for Options and Upgrades (each as defined in the Profit
Participation Agreement), whether such consideration was received by Developer or any
Transferee prior to orfollowing the date of the Transfer.
Permitted Transfers and Transfers of Control
2.2.2.. The following Transfers
PermittedTransfers
written consent or otherwise subject to the requirements of Section2.2.3, provided that in the case
ofclauses(a)or(b)below,theResponsible Developer, Responsible Personor the Responsible
Controlling Person, as applicable,shall provide the City with
notice of such transaction within ten (10) calendar days after its occurrence,which notice shall
include a certification that all of the applicable conditions set forth in the applicable portionof this
Section2.2.2have been satisfiedand where applicable, shall affirm the ongoing obligationsof the
Responsible Developer or Responsible Person, as applicable, under this Agreement
notwithstanding such Permitted Transfer:
(a)Except as set forth in Section2.2.1(c),(x)following the Merger(but
not including aTransfer pursuant to aMerger, which is governed by Section2.2.2(b)),any
Transfer by theResponsible Person to a Developer Affiliate or (y)following Cancellation
of the Merger, any Transfer by a Responsible Developer to a Developer Affiliate,in each
case of the entirety of DevelintheProject; provided that:
(i)the City shall be entitled to look totheResponsible Person,
following the Merger,orto the Responsible Developer, following
Cancellation of the Merger, as applicable,prior to such Transfer to fully
comply with this Agreement, and to cause the Developer Affiliate to comply
with this Agreement, as though there had not been a Transfer; and such
Responsible Person,following the Merger,or Responsible Developer,
following Cancellation of the Merger, as applicable, shall remain fully
liable under this Agreement and shall not bereleased from its obligations
under the Agreement;
(ii)Responsible Person,following the Merger,or Responsible
Developer, following Cancellation of the Merger, as applicable,is the
Controlling Person of the Developer Affiliate that is the Transferee;
(iii)Responsible Person,following the Merger,or Responsible
Developer, following Cancellation of the Merger, as applicable,shall not be
in Potential Default or Material Default under this Agreement at the time of
such Transfer;
(iv)Transferee at the time of the Transfer shall have expressly
assumed for itself and its SuccessorOwners, successorsand assigns,and
for the benefit of the City, by Assignment Agreement substantially in the
form and substance of the instrument attached hereto as Attachment16or
otherwise in a form acceptable to the City in its sole discretion,
acknowledged and Recorded, all the rights and obligations of Developer
under this Agreement and the Other Agreements arising from and after the
date of such Transfer,and the Transferee shall agree to assume and to be
subject to all the conditions and restrictions to whichDeveloper is subject
by reason of this Agreement and the Other Agreements;
(v)Transferee shall, as further set forth in the Assignment
Agreement,certify in writing for the benefit of the City as to the truth and
correctness, as of the effective date of the assignment, of the representations
and warranties set forth in the Assignment Agreement to the knowledge of
its specified Developer Knowledge Partiesand shall provide a certificate
meeting the requirements of Section4.6.6;
(vi)Transferee shall provide information to the City concerning
its proposed Guarantor and the then-current Net Worth and LiquidAssets
and the Net Worth and Liquid Assetsanticipated at the time at which the
Guaranty would be given to assure that the Guarantor meets the Minimum
Liquidity Standards
provided, if at all, at and as a condition to the Close of Escrow);and
(vii)With respect to the Guaranty or Equity Funding Certificate,
provide the documents required by clause (A)below, as applicable, unless
the existing Guaranty shall remain in effect as described in clause(B):
(A)Prior to or concurrently with the Transfer, (1)if such
Transfer occurs following the Close of Escrow,Developer shall cause the
Guarantorapproved by the Citytodeliver to the City fully executed
originals of: (x)aGuaranty, and (y)a legal opinion in the form and
substance of the Legal Opinion attached hereto as Attachment28as the
same may be required to be modified to reflect the state of formation of
Legal Opinion
Guarantor if such Transferoccurs prior to the
Closeof Escrow, Transferee shall cause its equity investor to deliver to the
City a fully executed original certificate in the form and substance of the
Equity
certificate attached to this Agreement as Attachment32
FundingCertificate
chief financial officeror other
appropriate authorized officer.Transferee shall cause the Guarantyor the
Equity Funding Certificate, asapplicable, tobeexecuted by a Person with
assets meeting the requirements of the City and sufficient, in the
determination of the City in its sole discretion(but only to the extent the
Guarantor is different than Lennar Corporation),to secure the development,
construction and maintenance obligations of Developer under this
Agreement, which shall be in the form and substance of the instrument
attached hereto as Attachment27orAttachment32,as applicable, or
otherwise in a form acceptable to the City in its sole discretion and meeting
the requirements of Sections4.6.7, 4.6.8,4.6.9 and 4.7.1, as applicable;
provided that Transfereeshall not be obligated to provide a Guaranty at the
time of the Transfer unless the Guaranty would otherwise then be required
to be provided pursuant to this Agreement,or
(B)Ifpreviously executed,the Guaranty shall remain in
full force and effect following such Transfer without any defaults
thereunder and without any modifications thereto other than modifications
that have been consented to by the City in its sole discretion.
(b)A Transfer of Control by or with respect to Initial Developer pursuant
to the Merger provided that:
(i)Lennar Corporation, a publicly traded company on the New
York Stock Exchange, at the time of the Transfer of Control, is the sole
(100%) owner of the New Entity into which Initial Developer is merged,
andthereafter remains the Controlling Person;
(ii)theNew Entity,substantially concurrently with the Merger,
shall certify in writing for the benefit of the City as to the truth and
correctness, as of the effective date of the Merger, of the representations and
warranties set forth in the Assignment Agreement to the knowledge of the
specified Developer Knowledge Parties of the New Entity;
(iii)prior to or concurrently with the Merger, (1)if such Merger
occurs following the Close of Escrow, or at the Close of Escrow if such
Merger occurs prior to the Close of Escrow, LennarCorporation, as
Guarantor,shalldeliver to the City fully executed originalsof:(A)a
Guaranty,and (B)aLegal Opinion and (2)if suchMerger occurs prior to
the Close of Escrow, Lennar Corporation shall deliver to the City an Equity
Funding Certificateexecuted by its chief financial officeror other
appropriate authorized officer of Lennar Corporation.
(iv)theNew Entity shall have expressly assumed for itself and
its SuccessorOwnersandsuccessorsand assigns,and for the benefit of the
City, by instrument substantially in the form and substance of the
Assignment Agreement attached hereto as Attachment16or otherwise in a
form acceptable to the City in its sole discretion, acknowledged and
Recorded, all the rights and obligations of Developer under this Agreement
and the Other Agreements regardless of the date they arise, and the New
Entity shall agree to assume and to be subject to all the conditions and
restrictions to whichDeveloper is subject by reason of this Agreement and
the Other Agreementsand shall provide a certificate meeting the
requirements of Section4.6.6;
(v)and provided further that (A)ifclause(i)of this Section is
not true and correct as of the date of the Merger, the Transfer and/or
Transfer of Control shall not be a Permitted Transfer hereunder and shall
instead be subject to the review and approval of the City in its sole discretion
pursuant to Section2.2.3and (B)if(1) delivery of either theEquity Funding
CertificateortheGuaranty isrequired prior to or concurrently with the
Merger pursuant to this Section2.2.2and are not timely delivered by Lennar
Corporation (and, if the Guaranty, with the Legal Opinion delivered by
s counsel), or (2) Five Point would have any ownership,
management rights or management responsibilities with respect to the
Project or the Property, or would be the Controlling Person or exercise
Control over Developer, the Project or the Property, then theTransfer and/or
Transfer of Control shall be a Material Default under this Agreement and
City shall have the right, in its sole discretion, to terminate this Agreement
and retain the Purchase Price Deposit in full;
(vi)and providedfurther that the City shall be provided with
each and every item of documentation required by Section4.6with respect
to the New Entity; Guarantor and Persons providing the EquityFunding
Certificate.
(c)Any Transfer described by Section2.2.7to a Homebuyer or a
Association;
(d)Any transfer of portions of the Property to the City and/or grants of
easements affecting the Development Parcels to the City, to any public or quasi-public entity
or to any utility, as necessary or desirable for the development thereof, or to a homeowners
association in accordance with the CC&Rs, except that the CC&Rs shall be subject to
review and approval by the City as set forth in Section13; and
(e)Any temporary license or other temporary grant of access rights to
the Development Parcels to the City and/or to any otherthird party, as necessary or desirable
for the development of the Property.
Provisions Applicable to Transfers and Transfers of Control Other
2.2.3.
than Permitted Transfers
. Prior to Recording of a Certificate of Compliance, with respect and
as a condition precedent to every Transfer orTransfer of Controlthat is not a Permitted Transfer
pursuant to Section2.2.2, Developer shall comply with the requirements of this Section2.2.3and
any Transfer(including any Transfer of Control)pursuant to this Section2.2.3shall require the
prior written consent of the City in its sole discretion. The following shall apply withrespect to
Transfers , the Projectand the Property
and to Transfers of Control by Developer(it being acknowledged and agreed by Developer that,
except for Permitted Transfers described in Section2.2.2,Developer shall have no right to Transfer
under this Agreement without the prior written approval of the City in its sole discretion):
(a)In order to provide the City with information necessary to inform its
right to consent to a Transfer or Transfer of Control pursuant to this Section, Developer
shall provide to the City at least twenty (20) Business Days prior to the date of any proposed
Transfer or Transfer of Control: (i)the name(s)of the proposed Transfereeand its Key
Employees,principalsandnew Controlling Person, as applicable; (ii)all of the material
proposed terms of the Transfer or Transfer of Control; (iii)in the case of a Transfer, current
audited financial statements of the proposed Transferee (or financial statements certified by
an officer or authorized representative of theproposed Transferee, if the proposed
Transferee does not have audited financial statements); (iv)in the case of a Transfer of
Control, current audited financial statements of the proposed new Controlling Person (or
financial statements certified by an officer or authorized representative of the proposed new
Controlling Person, if the proposed new Controlling Person does not have audited financial
statements); (v)the names of all Persons who Control the proposed Transferee or the new
Controlling Person, as applicable; (vi)in the case of Transfer, a certificate of the proposed
Transferee describing other real estate projects developed by, leased by, or sold by the
proposed Transferee in California over the preceding five (5) year period, the dates of
involvement by the proposed Transferee with such projects and the success of the projects,
such certificate to be made by the manager, president or other Person with appropriate
authority from the proposed Transferee to do so; (vii)in the case of a Transfer ofControl, a
certificate by the proposed new Controlling Person describing other real estate projects
developed by, leased by, or sold by the proposed new Controlling Person in California over
the preceding five (5) year period, the dates of involvement by the proposed new Controlling
Person with such projects and the success of the projects, such certificates to be made by
the manager, president or other Person with appropriate authority from the proposed new
Controlling Person to do so; and (viii) such other relevant information as the City may
request in its sole discretion in connection with its consent rights under this Agreement
(including as described in Sections4.6.1,4.6.2,8.5.1,8.5.2,8.5.3and8.6of this
Agreement), which may include evidence that the proposed Transferee or proposed new
Controlling Person has sufficient financial capacity to perform the obligations of Developer
under this Agreement, without utilizing a Mortgage.
(b)in
this Agreement, the proposed Transferee at the time of the Transfer shall have expressly
assumed for itself and its Successor Owners, and prior to Close of Escrow, its successors
and assigns, and for the benefit of the City, by instrument substantiallyin the form and
substance of the Assignment Agreement attached hereto as Attachment16, or otherwise in
a form acceptable to the City in its sole discretion, acknowledged and Recorded, all the
rights and obligations of Developer under this Agreement and the Other Agreements arising
from and after the date of such Transfer and the proposed Transferee shall agree to be subject
to all the conditions and restrictions to which Developer is subject by reason of this
Agreement and the Other Agreementsand shall provide a certificate meeting the
requirements of Section4.6.6and a Guaranty or Equity Funding Certificate, as applicable,
meeting the requirements of Section2.2.3(c)(B)below;
(c)
this Agreement pursuant to this Section2.2.3,and subject to the provision by the Transferee
of the items listed in clauses (A)and(B)of this subsection, Developer shall be released
from any of its obligations under this Agreement and the Other Agreements arising from
and after the date of such Transfer; provided that, in the event of the Merger, such release
shall not apply, it being the intent of the Parties that the Initial Developer not be released in
order that such release not extend to the New Entity into which the Initial Developer is
merged (such that the New Entity shall assume all rights, obligationsandliabilities of the
Initial Developeras though such New Entity had been the Initial Developer ab initio)and
provided further that such release shall not extendto the following:(i)matters or
circumstances (includingany payment obligations) which relate to or arose during the
period that such transferor was Developer hereunderand for the Additional Liability Period
as applicable;(ii)the releases set forth in Section4.5.2(f)or in the Other Agreementsor the
indemnities set forth in Sections5.5,8.12(e),8.15,8.16,10.1,10.2and17.12.1for matters
Accruing during the period that such transferor was Developer hereunder and for the
Additional Liability Period asapplicable,and (iii)
Agreement or the Other Agreements to the extent that the same arise prior to the transfer
date or subsequently if arising due to the acts or omissions of Developer and/or any
Developer Affiliate or Developer Representative; and further, the Transfer of any Home to
a Homebuyer shall not release Developer from any of its obligations under this Agreement:
(A)the assumption in writing by a Transferee of all
obligations under this Agreement and the Other Agreements inaccordance with
Section2.2.3(b), and
(B)A Guaranty made by a Person meeting the
requirements to be a Guarantor under this Agreement and with such Guaranty sufficient, in
the determination of the City in its sole discretion, to secure the development, construction
and maintenance obligations of Developer under this Agreement, which shall be in the form
and substance of the instrument attached hereto as Attachment27or otherwise in a form
acceptable to the City in its sole discretion and meeting the requirements of
Sections4.6and4.7.1; or if such Transfer occurs prior to the Close of Escrow, an Equity
Funding Certificate in the form and substance of the certificate attached as Attachment32
as further described in Section4.6.9.
No Mortgages or SaleLeasebacks without Consent
2.2.4.. Prior to the
Recording by the City of the Certificate of Compliance, neither Developer nor the
Association shall encumber the Property with any Mortgage without the prior written consent of
the City as set forth inSection2.2.1which approval may be granted or withheld in the sole and
absolute discretion of the City. Any encumbrance of the Development Parcels, or any portion
thereof, in violation of this Section2shall be a prohibited Transfer or Transfer of Control and a
Material Default by Developer, subject to the provisions of Section14.2.3. The City shall have no
right to approve or disapprove a Mortgage after the issuance of the Certificate of Compliance.
Developer shall not assign the Development Parcels or any portion thereof to a third party for
purposes of a sale-leaseback transaction. The provisions of this Section shall not apply with
respect to any Home that has been sold by Developer to a Homebuyer.
Bankruptcy
2.2.5.. The following shall be considered Transfers or Transfers of
Control which are prohibited without consent from the City, which may be granted or withheld in
Developer Insolvency Event
(a)If Developer is or becomes bankrupt or insolvent or if any
involuntary proceeding is brought against Developer (unless, in the case of a petition filed
against Developer, the same is dismissed within ninety (90) calendar days), or Developer
makes an assignment for the benefit of creditors, or institutes a proceeding underor
otherwise seeks the protection of federal or State bankruptcy or insolvency laws, including
the filing of a petition for voluntary bankruptcy or instituting a proceeding for reorganization
or arrangement;
(b)If a writ of attachment or execution is levied on this Agreement or on
the Development Parcels, or on any portion thereof, where such writ is not discharged within
ninety (90) calendar days; or
(c)If, in any proceeding or action in which Developer is a party, a
receiver is appointed with authority to takepossession of the Development Parcels, or any
portion thereof, where possession is not restored to Developer within ninety (90) calendar
days.
City Estoppel
2.2.6.. From time to time (but in no event more often than annually
or in connection with a Permitted Transfer, or a Transfer or Transfer of Control consented to by
of a written request therefor, the City shall execute and deliver to Developer and any Transferee,
a City Estoppel, substantially in the form and substance of the City Estoppel attached hereto as
Attachment5
the accurateness of the statements made therein.
Restrictions and Permitted Sale of Homes and Transfer of Property to
2.2.7.
Homebuyers andHomeowners
. Notwithstanding anything to the contrary set forth
in this Agreement, recognizing that the Development Parcels will bedeveloped with the intent to
sell individual residential Homes to Homebuyers and toTransferthe Common Areaand the
Common Area Improvementsortoasub-association created
pursuant to Section13.2establishedpursuant to the laws and regulations of the Statefor the
HomeownersAssociation
), thegeneral
prohibition against Transfer outlined herein shall not be applicable to (a)the sale of individual
Homes to Homebuyers, or(b)the transfer sociationoftheCommon Area
andCommon Area Improvements; provided, however, that sale or transfer of any Home to a
Homebuyer or the conveyance of any Common Area shall not be
permitted unless and until such Home is authorizedfor sale or such Lot and/or portion thereof is
authorized for transfer pursuant to State law, including regulations promulgated by theCalifornia
BRE
and the Transfer of any Lot or any other portion of the Property,
including anyCommon Areato a Association,shall not be permitted unless and
until the Improvements proposed to be constructed thereon pursuant to the Scope of Development,
theApproved Plans and the CC&Rs have been Completed.
City Costs
2.2.8.. Developer sha
out of pocket third party expenses, including legal fees, and staff costs incurred with respect to the
review, consideration, analysis and response to any of the matters required to be reviewed or
consented to by the City pursuant to this Section2.2orSection2.4,including with respect to
(a)any request for consent or approval of a Guarantor, Transferee, Transfer or Transfer of Control
and (b) review, consideration, preparation and delivery of each City Estoppel; provided that with
respect to this clause(b)only, such expenses, fees and costs shall not exceed $5,000with respect
to any single City Estoppel.
Remedies for Improper Transfers or Transfers of Control
2.3..
Without limiting the generality of the foregoing, a failure (a)by Developer to comply with
the requirements of this Section2with respect to any Transfer or Transfer of Control or (b)by any
Transferee to execute the Assignment Agreement required by Section2.2, if applicable, shall in
each case be a Material Default under this Agreement, subject to the provisions of Section14.2.3,
but with no extension on account of Force Majeure Delay and, in such event, the City shall have
all remedies available to it at law and in equity, including those specified in this Agreement and
specifically including the right to exercise the Right of Purchase and/or the Right of Reversion, as
applicable, in accordance with Section16of this Agreement.
Changes
2.4..
Developer shall promptly notify the City in the event that any of the following Persons
cease to be involved with the development of the Project: (a)any of the Key Employees,
(b)William Hezmalhalch Architects,the Project Architect, (c)BrightView Design Group,the
landscapearchitect, or (d)Hunsaker and Associates,the Project engineer. Following any Transfer,
Transfer or Control or Merger, Transferee or New Entity, as the case may be, shall provide the
City with a list of its Key Employees and City shall have the right to notify Developer if it considers
any of such individuals unsatisfactory, in which event such individual(s) shall be removed as Key
Employees. In the event of a Merger, the New Entity shall retain at least one (1) of the Key
Employees of the Initial Developer listed in Attachment1.
Representations and Warranties
3..
3.1..
As an inducement to the City to enter into this Agreement and to perform its obligations
hereunder, Developer represents and warrants to theCity as follows:
3.1.1.Developer has the necessary expertise, experience, financial experience,
financial capacity and qualifications and legal status necessary to perform as Developer pursuant
to this Agreement and to construct and Complete the Projectas contemplated by this Agreement,
and, without limiting the foregoing, Developer is experienced in the development, management,
and sale of residentialcondominiumprojects of the size and type described in this Agreement and
understands the process and requirements associated with projects such as the Project described
herein.
3.1.2.
other undertakings pursuant to this Agreement are for the purpose of timely development of the
Project upon the Property in accordance with the Schedule of Performance attached to this
Agreement and not for speculation or land holding.
3.1.3.Developer isacorporation, duly incorporated, and validly existing and in
good standing under the laws of the State of Delaware, isduly qualified to do business and in good
standing in the State and in each other jurisdiction where the operation of its business or its
such qualification necessary.
3.1.4.Subject to all of the conditions set forth in this Agreement for the benefit of
Developer, Developer has (or will have prior to the date by which a particular step is required to
be taken or performance of a particular obligation is required to be commenced pursuant to this
Agreement or any Other Agreements) all requisite power and authority required to enter into this
Agreement and the instruments referenced in this Agreement, to consummate the transaction
contemplated hereby and to take any steps contemplated thereby or hereby, and to perform its
obligations hereunder and thereunder.
3.1.5.Developer has obtained (or will have obtained prior to the date by which a
particular step is required to be taken or performance of a particular obligation is requiredto be
commenced pursuant to this Agreement or any Other Agreements) all required consents in
connection with entering into this Agreement and the instruments and documents referenced in
this Agreement to which Developer is or shall be a party and the consummation of the transactions
contemplated hereby.
3.1.6.The individuals executing this Agreement and the individuals that will
execute the instruments referenced in this Agreement on behalf of Developer have, or will have
upon execution thereof, the legal power,right and actual authority to bind Developer to the terms
and conditions hereof and thereof.
3.1.7.This Agreement has been duly authorized, executed and delivered by
Developer and all documents required in this Agreement to be executed by Developer pursuant to
this Agreement shall be, at such time as they are required to be executed by Developer, duly
authorized, executed and delivered by Developer and are or shall be, at such time as the same are
required to be executed hereunder, valid, legally binding obligations of and enforceable against
Developer in accordance with their terms, except as enforceability may be limited by bankruptcy
3.1.8.Neither the execution or delivery of this Agreement or the documents
referenced in this Agreement, nor the incurring of the obligations set forth in this Agreement and
the certificates, declarations and other documents referenced in this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance with the terms
of this Agreement and the documents referenced in this Agreement, will violate any provision of
law or any order of any court or Governmental Authority to which Developer is subject or conflict
with or result in the breach of any terms, conditions, or provisions of, or constitute a default under
any bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of
trust, loan,partnership agreement, lease or other agreements or instruments to which Developer,
or to the extent applicableto any non-publicly traded Transferee, one of its owners, membersor
partners are a party and which affect the Property or the transactions contemplated by this
Agreement.
3.1.9.No attachments, execution proceedings, assignments of benefit to creditors,
knowledge, threatened against Developer, or to the extent applicableto any non-publicly traded
Transferee, one of its owners, membersor partners.
3.1.10.Except for those representations and warranties of the City expressly set
forth ininSections3.3and17.12.2, Developer is relying solely upon its own inspections and
investigations in proceeding with this Agreement and the transactions contemplated hereby, and
is not relying on the accuracy or reliability of any information provided to it by the City, on any
oral or written representation or on any facts or conclusions of law made by the City, or any of its
elected and appointed officials, officials, employees, agents, attorneys or representatives made in
connection with this Agreement. In making such investigation and assessment, Developer has
been provided access to any persons, records or other sources of information which it has deemed
appropriate to review and it has thereafter completed such investigation and assessment. Without
limiting the generality of the foregoing provisions, Developer acknowledges that the City has not
made and will not make any representations or warrantiesconcerning the condition of theProperty,
the compliance or non-compliance of the Property or any portion thereof with Environmental Laws
or the existence or non-existence of HazardousMaterials in relation to the Property or any portion
thereof or otherwise (except for those representations and warranties of the City set forth in
Sections3.3and17.12.2).
3.1.11.Attachment4, there are
no adverse conditions or circumstances, no pending or threatened legal proceedings or litigation
against Developer, nogovernmental action, and noother condition which could prevent or
or to develop the
Property and the Project as contemplated by the terms of this Agreement.
3.1.12.Except as set forth in this Agreement, the DAand the ENA, Developer has
not paid or given, and will not pay or give, any third Person any money or other consideration for
obtaining this Agreement, other than the normal cost of conducting business and cost of
professional services such as architects, engineers and attorneys.
3.1.13.All reports, documents, instruments, information and forms of evidence
delivered by Developer to the City concerning or related to this Agreement and the transactions
complete at the time of submission to give the City true and accurate knowledge of the subject
matter, and do not contain any material misrepresentation or omission.
3.1.14.As of the Close of Escrow, Developer will have the equity capital and
financial capacity required for Completion of the Development without requirement of third party
financing.
3.1.15.Developer does not have any contingent obligations or any other contracts
the performance or nonperformance of which could adversely affect the ability of Developer to
carry out its obligations hereunder.
in this Section3.1(or in the case
where the Merger or any other Transfer occurs prior to the Close of Escrow, the representations
and warranties made by the New Entity or Transferee, as applicable,in the applicable Assignment
Agreement)shall be deemed to be restated at the Close of Escrow, and shall survive the Close of
Escrow until the earlier to occur of the following (a)termination of this Agreement or (b)issuance
of the Certificate of Compliance, and shall not be merged with the Quitclaim Deed. As used in
Section3.1and3.2present
knowledge oftheDeveloper Knowledge Partiesas of the Effective Date,ineach case without any
duty of inquiry; provided, however, that in the event any of the Developer Knowledge Parties are
unavailable at the time these representations and warranties set forth in this Section3.1are restated
at the Close of Escrow, Developer may specifically identify
Parties,Notwithstanding anything to the contrary
contained herein, (i)none of the Developer Knowledge Parties shall be personally liable for any
inaccuracy or breach by Developer of the representations and warranties contained in Section3.1
or elsewhere in this Agreement and/or any of the Other Agreements, and (ii)the City shall not be
had disclosed in writing facts to the City indicating that the applicable representation and warranty
was incorrect prior to(A)the execution of this Agreement and the City proceeded with the
execution of this Agreement, or (B)the Close of Escrow and the City proceeded with the Close of
Escrow, in either case in spite of such inaccuracy.
Developer Covenants Regarding Representations and Warranties
3.2..
Developer shall promptly advise the City in writing if any of the Developer Knowledge
Parties becomes aware (without any duty of inquiry) that any representation or warranty made by
Developer in Section3.1or in any Assignment Agreement is or becomes untrue in any material
respect prior to the Close of Escrow.
City Representations and Warranties
3.3..
As an inducement to Developer to enter into this Agreement and perform its obligations
hereunder, the City represents and warrants to Developer as follows:
3.3.1.The City is a municipal corporation incorporated within and existing
pursuant to the laws of the State.
3.3.2.Subject to all of the conditions set forth in this Agreement for the benefit of
the City, the City has (or will have prior to the date by which a particular step is required to be
taken or performance of a particular obligation is required to be commenced pursuant to this
Agreement or any Other Agreements) all requisite power and authority required to enter into this
Agreement and the instruments referenced in this Agreement, to consummate the transaction
contemplated hereby and to take any steps contemplated thereby or hereby, and to perform its
obligations hereunder and thereunder.
3.3.3.The City has obtained (or will have obtained prior to the date by which a
particular step is required to be taken or performance of a particular obligation is required to be
commenced pursuant to this Agreement or any Other Agreements) all required consents in
connection with entering into this Agreement and the instruments and documents referenced in
this Agreement to which the City is or shall be a party and the consummation ofthe transactions
contemplated hereby.
3.3.4.The individualsexecuting this Agreement and the individualsthat will
execute the instruments referenced in this Agreement on behalf of the City have, or will have upon
execution thereof, the legal power, right and actual authority to bind the City to the terms and
conditions hereof and thereof.
3.3.5.This Agreement has beenduly authorized, executed and delivered by the
City and all documents required in this Agreement to be executed by the City pursuant to this
Agreement shall be, at such time as they are required to be executed by the City, duly authorized,
executed and delivered by the City and are or shall be, at such time as the same are required to be
executed hereunder, valid, legally binding obligations of and enforceable against the City in
accordance with their terms, except as enforceability may be limited by bankruptcy laws or other
3.3.6.Neither the execution or delivery of this Agreement or the documents
referenced in this Agreement, nor the incurring of the obligations set forth in this Agreement, and
the certificates, declarations and other documents referenced in this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance with the terms
of this Agreement and the documents referenced in this Agreement, will violate any provision of
law, any order of any court or Governmental Authorityto which the City is subject or conflict with
or result in the breach of any terms, conditions, or provisions of, or constitute a default under any
bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust,
loan, partnership agreement, lease or other agreements or instruments to which the City is a party
and which affect any of the Property or the transactions contemplated by this Agreement, except
as set forth on Attachment4.
3.3.7.There are no legal proceedings either pending or, to the knowledge of the
City Representatives, threatened, to which the City is or may be made a party, or to which the
Property, is or may become subject, which has not been disclosed in the documents submitted to
Developer and that could materially affect the ability of the City to carry out its obligations
hereunder or that would affectthe Property after the Close of Escrow.
TheSection3.3shall be deemed to
be restated at the Close of Escrow, and shall survive the Close of Escrow until the earlier to occur
of the following: (a)termination of this Agreementor(b)issuance of the Certificate of Compliance
and shall not be merged with the Quitclaim Deed. As used in Section3.3 and 3.4
knowledge
present knowledge of Jeffrey Parker, David
City Representatives
Kendig, John Buchanan and Ryan Swiontek
inquiry. Notwithstanding anything to the contrary contained herein, (i)none of the City
Representatives shall be personally liable for any inaccuracy or breach by the City of the
representations and warranties contained in Section3.3or elsewhere in this Agreement, any of the
Other Agreements, and (ii)Developer shall not be entitled to make a claim for a breach of the
indicating that the applicable representation and warranty was incorrect prior to (a)the execution
of this Agreement and Developer proceeded with the execution of this Agreement, or (b)Close of
Escrow and Developer proceeded with the Close of Escrow, in either case in spite of such
inaccuracy.
City Covenants Regarding Representations andWarranties
3.4..
The City shall promptly advise Developer in writing if any of the City Representatives
becomes aware (without any duty of inquiry) that any representation or warranty made by the City
inSection3.3is or becomes untrue in any material respectprior to the Close of Escrow.
Conveyance of Property from City to Developer
4..
Conveyance of Property
4.1..
Subject to the terms and conditions set forth in this Agreement, including the satisfaction
of the Closing Conditions set forth in Section7or elsewhere in this Agreement, the City agrees to
sell to Developer and Developer agrees to purchase from the City the Development Parcels,
together with all existing improvements, if any, presently located on the Development Parcels, all
appurtenances pertaining to the Development Parcels, all permits, licenses, approvals and
authorizations issued by any Governmental Authority relating to the Development Parcelsfor
development of the Improvements andthe right to construct up totwo hundred and eighteen(218)
Homes, as further described in Section4.1(a)(iii),
and arising out of the Intangible Property (subject to the exclusions and modifications to the
definition thereof described in clauses (a) and (b)below, collectively referred to in this Agreement
Property
of its rights to enforce the Navy Responsibilities against the Navy shall be made to Developer on
a non-exclusive basis and the City and Developer may each enforce the Navy Responsibilities as
their interests may appear.Notwithstanding the foregoing, nothing set forth in this Agreement
shall preclude the City or any insurer, on a non-exclusive basis,from enforcing the Navy
Responsibilities against the Navy with respect to Tustin Legacyother than the Propertyor,with
respect to the Property for matters Accruing prior to Close of Escrow.At the Close of Escrow, the
City shall convey to Developer by Quitclaim Deed fee title to the Property. Notwithstanding the
foregoing:
Property
(a)
which shall be explicitly reserved to the City:
(i)Any and all oil, oil rights, minerals, mineral rights, natural
gas, natural gas rights and other hydrocarbon by whatsoever name known,
geothermal steam and all products derived from any of the foregoing, that
may be within or under the Development Parcels together with the perpetual
right of drilling, mining, exploring for and storing in and removing the same
from the Development Parcels or any other land, including the right to
whipstock or directionally drill and mine from lands other than the
Development Parcels, oil or gas wells, tunnels and shafts into, through or
across the subsurface of the Development Parcels and to bottom such
whipstocked or directionally drilled wells, tunnels and shafts under and
beneath or beyond the exterior limits thereof, and to re-drill, re-tunnel,
equip, maintain, repair, deepen and operate any such well or mines; but
without, however, the right to enter upon or use the surface of the
Development Parcels in the exercise of such rights or otherwise adversely
affect the use or operation of the Development Parcels as anticipated by this
Agreement or the structural integrity of any improvements on the
Development Parcels; and
(ii)Any and all water, water rights or interests therein
appurtenant or relating to the Development Parcels or owned or used by the
City in connection with or with respect to the Development Parcels no
matter how acquired by the City, whether such water rights shall be riparian,
overlying, appropriative, littoral, percolating, prescriptive, adjudicated,
statutory or contractual, together with the perpetual right and power to
explore, drill, re-drill and remove the same from or in the Development
Parcels, to store the same beneath the surface of the Development Parcels
and to divert or otherwise utilize such water, rights or interests on any other
property owned or leased by the City; but without, however, the right to
enter upon or use the surface of the Development Parcels in the exercise of
such rights or otherwise adversely affect the use or operation of the
Development Parcels as anticipated by this Agreement or the structural
integrity of any improvements on the Development Parcels; and
(iii)Those excess development rights remaining within Specific
Plan NeighborhoodG, Planning Area15after deducting the number of
residential unitsallocated to the Development Parcels (anticipatedto be two
hundred and eighteen (218)residential units)or such lesser number of units
as are described on the Recorded Condominium Planand actually
constructed by Developer prior to Recordingof the Certificate of
Compliance, and, except to the extent any of such rights were conveyed by
the City to third parties prior to the Effective Date, the City shall retain all
residential units and all development rights associated with Specific Plan
NeighborhoodG, Planning Area15in excess ofthe units shown on the
Recorded Condominium Planand constructed prior to the Recordingof the
Certificate of Compliance,and the units and development rights retained by
the City shall be freely transferable by the City throughout Tustin Legacy;
and
(b)Thereservation by the City of the rights and interests in this
Section4.1
subsurface improvements for the purpose of constructing the Project, and otherwise engage
in subsurface construction activity in order to construct the Project.
Purchase Price
4.2..
Base Purchase Priceand Project Fair Share Contribution
4.2.1.. As
consideration for the sale of the Development Parcels by the City to Developer, Developer shall
pay to the City at the Close of Escrow for the Development Parcels, the sum ofThirty Five Million,
Five Hundred Forty Three Thousand, Eight Hundred and Fifty Five Dollars ($35,543,855)
comprised of (a) ThirtyFourMillion Two Hundred TwoThousandSeven Hundred and Twelve
Base Purchase Price
Dollars ($34,202,712)as the initial purchase price in consideration
for the Property, and (b) in payment of the fees applicable to the Development Parcels under the
Tustin Legacy Backbone Infrastructure Program, the Project Fair Share Contribution in the amount
of OneMillion Three Hundred Forty-One ThousandOne Hundred Forty-ThreeDollars
($1,341,143)payable at the Close of Escrow.
Profit Participation Price
4.2.2.. As additional consideration for the sale of the
Property by the City to Developer, in addition to the Base Purchase Price, Developer shall pay a
Profit Participation
Price
rtain Profit Participation Agreement
Profit Participation Agreement
attached hereto as Attachment14Unless otherwise
agreed by the City in its sole discretion, the Profit Participation Price shall be secured by the City
Deed of Trust to be Recorded at Close of Escrow against Lots 6 and 7 as depicted on the Tentative
Tract Map (which Lots shall be reflected with the same lot numbers on the Final Map)as further
described in the Profit Participation Agreement; provided that if the Final Map is not recorded
prior to or concurrently with the Close of Escrow, the City Deed of Trust shall be recorded against
the Development Parcels.
Payment of Base Purchase Price
4.3..
Deposit
4.3.1.. As a condition to execution of this Agreement by the City,
Developer shall deliver an earnest money deposit (as the same may be increased as set forth below,
Purchase Price Deposit
theOneMillion Dollars ($1,000,000) to Escrow Holdernot later
than five (5) Business Days after the later of (a)approval by the City Council of this Agreement
or(b)approval by the City Council of the DA. The Purchase Price Deposit plus accrued interest
shall constitute security to the City for the Close of Escrow and shall be credited against the Base
Purchase Price at the Close of Escrow. The Purchase Price Deposit shall be held by Escrow Holder
inEscrow in an interest-bearing account approved by the City and Developer and disposed of in
accordance with the terms of this Agreement. As a condition precedent to execution by the City
of the License Agreement, the Purchase Price Deposit shall be increased to a total of Five Million
Dollars ($5,000,000) and Developer shall deliver an additional earnest money deposit of Four
Million Dollars ($4,000,000) to Escrow Holder,which shall upon delivery become part of the
Purchase Price Deposit. The City shall have no obligation to execute the License Agreement until
the additional funds are received by Escrow Holder.
Application of Purchase Price Deposit
4.3.2.. Unless Developer has timely
provided aDiligence Termination Notice in accordance with Section5.1, after expiration of the
Due Diligence Period, the Purchase Price Deposit shall be nonrefundable except as otherwise
expressly provided in this Agreement and shall be applied to the Base Purchase Price as set forth
inSection4.3.3, or shall be liquidated damages to the City in the event of certain Defaults by
Developer as further set forth in Sections14and15of this Agreement.
Payment of the Balance of the Base Purchase Price and Other Amounts
4.3.3.
Due at Close of Escrow
. No later than one (1) Business Day prior to the Close of Escrow,
Developer Closing Payment
which shall, be equal to: (a)the Base Purchase Price less the Purchase Price Deposit ([[1994,2226,2115,2283][12][,I,][Times New Roman]]plus [[2095,2226,2300,2283][12][,,][Times New
Roman]]accrued
interest) [[482,2283,603,2340][12][,I,][Times New Roman]]plus [[597,2283,689,2340][12][,,][Times New Roman]](b) [[668,2283,1483,2340][12][,,][Times New Roman]]the Project Fair Share
Contribution, [[1451,2283,1572,2340][12][,I,][Times New Roman]]plus [[1567,2283,1655,2340][12][,,][Times New Roman]](c) [[1634,2283,2300,2340][12][,,][Times New Roman]]such additional
amount as is
necessary to cover all outstanding ENA Transaction Expenses and City Transaction Expenses and
all closing costs to be paid by Developer pursuant to Section7.4.1(b)and(c)and Section7.4.4for
the Close of Escrow, as adjusted for any net credits or debits to the City for closing costs and/or
prorations in accordance with Section7.4.1(a)and(c)and Section7.4.4for the Close of Escrow.
Payments in Immediately Available Funds
4.3.4.. Funds delivered to the City
or Escrow Holder under this Agreement shall be in the form of cash, wire transfer (to such account
of the City or Escrow Holder as Escrow Holder
check drawn on good and sufficient funds on a federally chartered bank and made payable to the
order of City or Escrow Holder, as the case may be.
Escrow and Joint Escrow Instructions
4.4..
Upon payment of the Purchase Price Deposit, delivery of the Developer certification
providing the information required by Section4.6.6(a) through (e)and such other information as
City may reasonably request, and delivery by Developer of the insurance binder(s)required by
Section 4.6.3, each of which is a condition precedent to execution of this Agreement by the City,
theCity and Developer shall each deliver three executed original counterparts of this Agreement
to Escrow Holderwithin the time period specified in the Pre-Closing Schedule. For purposes of
Opening of Escrow
original counterparts to this Agreement signed by Developer and the City. Upon the written
acceptance of this Agreement by EscrowHolder, this Agreement shall constitute the joint escrow
Escrow
this Agreement, Escrow Holder is authorized to act in accordance with the terms of this
upon request, with such modifications thereto as Developer and the City may reasonably require;
provided, however, if there is any conflict or inconsistency between such general escrow
instructions and this Agreement, this Agreement shall control. Escrow Holder shall not prepare
any further escrow instruction restating or amending this Agreement unless specifically so
instructed by the City and Developer in writing. Any supplemental escrow instructions must be
in writing and signed by the City and Developer and accepted by the Escrow Holder to be effective.
Investigation; Property Conveyed As-Is
4.5..
Investigation
4.5.1..
(a)
investigation of the Property pursuant to Section5.1of this Agreement. If Developer
proceeds to the Close of Escrow, Developer represents and warrants to the City that
Developer will have satisfied itself that it has determined that all matters related to the
Property and the Project are acceptable to Developer, including the state of title (subject
only to the Permitted Exceptions), the physical condition thereof, the physical condition of
structures, if any, located upon the Development Parcels and, as applicable, the accessibility
and location of utilities, and all mechanical, plumbing, sewage, and electrical systems
located therein, suitability of soils, environmental and other investigations regarding the
Property. Prior to the expiration of the Due Diligence Period, Developer will have reviewed
use of the Property and Devel
by this Agreement.
(b)Developer acknowledges and agrees that, as of the Close of Escrow:
(i)Its determination to enter into this Agreement constitutes
consummating the transactions
described in this Agreement:(A)has been given the opportunity to inspect
the Property and to review the information and documentation provided by
the City to Developer and affecting the Property, including the
environmental condition of the Property, or otherwise obtained by
Developer in connection with its due diligence of the Property, and is
relying solely on its own investigation of the Property, including such
investigation prior to execution of this Agreement, and review of such
information and documentation in determining the physical, economic and
legal condition of the Property, and not on any information, representation
or warranty providedby the City or any agents or representatives of the
City; (B)has performed its own assessment of the Property, including the
environmental condition of the Property, the presence of Hazardous
Materials on the Property, the suitability of the soil for improvements to be
constructed, the implications of land use restrictions on the development
plan for the Project and the Property and the consequences of any
subsequently discovered contamination on or adjacent to the Property, and
(C)has been provided withaccess to all information in the possession of
the City which it has requested.
(ii)Information provided to Developer by or on behalf of the
City with respect to the Property was obtained from a variety of sources and
that the City has not made any independent investigation or verification of
such information and makes no representations as to the accuracy or
completeness of such information; and Developer is satisfied with the
nature and extent of its permissible investigation of the physical condition
and other matters relating to the Property and is willing to consummate the
transactions described by this Agreement.
(iii)Without limiting the generality of the foregoing, Developer
acknowledges and agrees that (A)it has been provided with access to (x)all
environmental reports and statements listed on Attachment10Aand all
reports either attached to or referenced in the Memorandum of Agreement
and Federal Deeds, (y)the FOST and (z) the Environmental Baseline
EBS
by reference;
(B)it shall perform its own assessment of the environmental condition of
the Property, the presence of Hazardous Materials on the Property, the
suitability of the soil for improvements to be constructed, the implications
of the land use restrictions on the development plan for the Project and the
Property and the consequences of any subsequently discovered
contamination on the Property; (C)it shall review the Navy produced or
identified documentation, including that listed on Attachment10A,
Propertyand (D) Developer has previously entered into the license
agreements related to construction of Greenwood described on
Attachment10Band pursuant to such license agreements has undertaken
the work described therein and on Attachment10B.
AS-IS; WHERE-IS
4.5.2..
No Representations or Warranties
(a). Developer recognizes that the
City would not sell
basis, and Developer acknowledges that the City has made no representations or warranties
of any kind whatsoever (excepting only those representations and warranties of the City
expressly set forth in Section3.3of this Agreement), either express or implied in connection
with any matters with respect to the Property or any portion thereof.
Acknowledgement
(b)
t that Developer, in consummating the
any. Without limiting the generality of the foregoing provisions, Developer further
acknowledges and agrees that, except as otherwise specifically provided in
Sections3.3,8.10and17.12.2of this Agreement, City makes no representations, warranties,
assurances or guaranties of any kind or character in connection with the transaction
contemplated by this Agreement, whether express or implied, oral or written, past, present
or future, whether by the City or any of its agents, elected or appointed officials,
representatives or employees, of concerning or with respect to:
(i)the value of the Property or the income to be derived from
the Property;
(ii)the existence or nonexistence of any liens, easements,
covenants, conditions, restrictions, claims or encumbrances affecting the
Property(including any of the foregoing arising from or related to the
Entitlements or any of the Other Agreements);
(iii)the suitability of the Property for any and all future
development, uses and activities which Developer or any Homebuyer or
may conduct thereon, including the development
of the Project described in this Agreementand the Other Agreements;
(iv)except as set forth in Section8.10,the ability of the City or
any third party to complete, or likelihood of the completion of, any of the
improvements and infrastructure described by the General Plan, the Reuse
Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program
or any other plan or policy of the City or any other Governmental Authority;
(v)the compliance with or enforcement by the City or any third
party of the Reuse Plan, the General Plan, the Specific Plan, the Special
Restrictions applicable to the Property or the special restrictions or other
covenants and agreements applicable to other propertyat Tustin Legacy, the
CC&Rs, the Tustin Legacy Backbone Infrastructure Programor any other
agreement or governmental restriction or plan affecting Tustin Legacyby
the City or any third party;
(vi)the habitability, merchantability or fitness for a particular
purpose of the Property;
(vii)the manner, quality, state of repair or lack of repair of the
Property;
(viii)the nature, quality or condition of the Property including
water, soil and geology;
(ix)the compliance of or by the Property and/or its operation in
accordance with anyof the Entitlements orany Governmental Requirement,
including the National Environmental Policy Act, CEQA and the
Americans with Disabilities Actof 1990;
(x)the manner or quality of the construction or materials, if any,
incorporated into the Property;
(xi)the presence or absence of Hazardous Materials, including
asbestos or lead paint at, on, under, or adjacent to the Propertyor any other
portion of the Development Parcels or Tustin Legacy;
(xii)the content, completeness or accuracy of the information,
documentation, studies, reports, surveys and other materials delivered to
Developer in connection with the review of the Property and the
transactions contemplated in this Agreement;
(xiii)the conformity of the existing improvements on the Property
and/or at Tustin Legacy, if any, to any plans or specifications therefor;
(xiv)compliance of the Property with past, current or future
Governmental Requirements relating to zoning, subdivision, planning,
building, fire, safety, health or Environmental Matters and/or covenants,
conditions, restrictions or deed restrictions;
(xv)the deficiency of any undershoring or of any drainageto on
or from the Development Parcelsor any other portion of Tustin Legacy;
(xvi)the condition of any adjoining land owned by the City,
including any property and improvements covered by theLandscape
Maintenance Agreement;
(xvii)the fact that all or a portion of the Property may be located
on or near an earthquake fault line or falls within an earthquake fault zone
established under the Alquist-Priolo Earthquake Zone Act, California
Public Resources Code Sections2621-2630 or within a seismic hazard zone
established under the Seismic Hazards Mapping Act, California Public
Resources Code, Sections2690-2699.6 and Sections3720-3725;
(xviii)the existence or lack of vested land use, zoning or building
entitlements affecting the Property;
(xix)the construction or lack of construction of Tustin Legacy or
if constructed, the construction of Tustin Legacy in accordance with design
guidelines, plans and specifications previously or to be prepared therefor;
(xx)the conditions, covenants and restrictions imposed or to be
imposed upon the Property or any portion thereof under this Agreement, the
Other Agreements or the Entitlements;
(xxi)the contents of the Memorandum of Agreement, the Federal
Deeds, the Base Closure Law and the FOST; and
(xxii)any other matters.
Environmental Condition of the Property; Restrictions
(c). Without
limiting the generality of the foregoing provisions, the City makes no representation or
warranty as to the environmental condition of the Property or any portion thereof, the
adequacy or accuracy of any environmental report that has been rendered. Developer
acknowledges and agrees that (i)there may be some residual contamination onthe Property
as a result of Navy historic activities; (ii)the Navy has agreed to accept certain limited
responsibility for any contamination it caused, including any contamination discovered after
transfer from the Navy, in accordance with existing Governmental Requirements including
the National Defense Authorization Act For Fiscal Year 1993 as amended (Public Law No.
102-434) Section330 and Section120(h) of the Comprehensive Environmental Response,
Navy Responsibilities
Compensation, and Liability Act, 42 U.S.C. § 9620(h)
(iii)based on that certain Covenant to Restrict Use of Property Environmental Restriction
between the Navy, DTSC and the California Regional Water Quality Control Board, Santa
Ana Region, Recorded on July 20, 2006, as Instrument Number 2006000483641, the deed
restrictions contained in the Federal Deedsare binding upon Successor Owners of the City
(and therefore, shall be binding upon Developer with respect to the Property upon its
acquisition of the Property) and are enforceable by DTSC pursuant to a conveyed property
right from the Navy to DTSC.
Federal Deedsand Memorandum of Agreement
(d). Developer
acknowledges and agrees that the purchase of the Property is subject to the terms and
conditions expressly set forth in the Memorandum of Agreement, the Federal Deedsand the
Permitted Exceptions. From and after the Close of Escrow, Developer agrees to assume
and faithfully perform any covenants running with the land acquired and all obligations set
forth in the Federal Deedsas o
.
No Unauthorized Representations
(e). No Person acting on behalf of
the City is authorized to make, and by execution hereof, Developer acknowledges that no
Person has made, any representation, agreement, statement, warranty, guarantee or promise
regarding the Property, the Project or the transactions contemplated in this Agreement or
the past, present or future zoning, land use entitlements, construction, physical condition,
presence or extent of Hazardous Materials or other status of the Property except as may be
expressly set forth in thisAgreement or in any of the Other Agreements. No representation,
warranty, agreement, statement, guarantee or promise, if any, made by any Person acting
on behalf of the City that is not contained in this Agreement or in any of the Other
Agreements will be valid or binding on the City. Nothing in this Section is intended to
affect in any manner the validity of the Entitlements and Development Permits obtained by
Developer with respect to the Property.
Release
(f).Developer, on behalf of itself, each Successor Owner and
each and every Person claiming by, through or under Developer or any Successor Owner
Developer
andincluding,without limitation, each End User (each, including Developer,
Releasing Party
es to waive, as of the
Close of Escrow, the right of each Developer Releasing Party to recover from, and fully and
irrevocably releases, the City Released Parties from any and all Claims thatany Developer
Releasing Party may now have or hereafter suffer or acquire arising from or related to:
(i)any Due Diligence Information, (ii)any condition of the Property or any current or future
improvement thereon, known or unknown by any Developer Releasing Party or any City
Released Party,including as to the extent or effect of any grading of the Development
Parcels; (iii)any construction defects, errors, omissionsor other conditions, latent or
otherwise;(iv)economic and legal conditions on or affecting the Property or any
improvements thereon; (v)Environmental Matters,including the existence, Release,
threatened Release, presence, storage, treatment, transportation or disposal of any
Hazardous Materials at any time on, in, under, or from, the Property or any current or future
improvement thereon or any portion thereof; (vi)Claims of or acts or omissionsto act of
any Governmental Authority or any other third party arising from or related to any actual,
threatened, or suspected Release of a Hazardous Material on, in, under, or fromorabout the
Property or any current or future improvement thereon, including any Investigation or
Remediation at or about the Property or any current or future improvement thereon; and/or
(vii)arising from the Tustin Legacy Backbone Infrastructure Program, any community
facilitiesdistrict, service districtorassessment district the cost or extent thereof, or the
amount of the Project Fair Share Contribution or any community facilities district, service
districtor assessment district assessment against the Development Parcels described in this
Agreementorthe DA; provided that the foregoing release by the Developer Releasing
Parties shall not extend to the extent of (A)any breach by the City of any of the
representations or warranties of the City set forth in Sections3.3or17.12.2of this
Agreement, (B)any breach by the City of any of the covenants or obligations set forth in
this Agreement or any Other Agreement, (C)any Claim that is the result of the gross
negligence, willful misconduct or fraud of theCity Released Parties,(D)any actions of the
City Released Parties which occur following the Close of Escrow with respect to the
Property, or (E)any other Claims against City relating to or arising out of tort Claims
brought by third parties against Developer, to the extent such claims are based upon the
Active Negligence of the City Released Parties and Accruingprior to the Close of Escrow;
provided that the exceptions in clauses(C)and(E)above shall not apply with respect to any
matter for which the City is indemnified pursuant to Section5.5orSection10.2. This
release includes Claims of which Developer is presently unaware or which Developer does
not presently suspect to exist which, if known by Developer, would materially affect
City Released Parties. Developer specifically waives the
provision of California Civil Code Section1542, which provides as follows:
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
In this connection and to the extent permitted bylaw, Developer on behalf of itself, and the other
Developer Releasing Parties hereby agrees that (x)it realizes and acknowledges that factual
matters now unknown to it may have given or may hereafter give rise to Claims or controversies
which are presently unknown, unanticipated and unsuspected;(y)the waivers and releases in this
Section4.5.2(f)have been negotiated and agreed upon in light of that realization and
(z)Developer, on behalf of itself and the other Developer Releasing Parties, nevertheless hereby
intends to release, discharge and acquit the City Released Parties from any such unknown Claims
and controversies to the extent set forth above.
BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES
THAT (A)IT HAS READ AND FULLY UNDERSTANDS THE
PROVISIONSOF THIS SECTION, (B)IT HAS HAD THE
CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS
MEANING AND SIGNIFICANCE, AND (C)IT HAS
ACCEPTED AND AGREED TO THE TERMS SET FORTH IN
THIS SECTION.
_____________________________________________
D
From and after the acquisition of the Development Parcels by Developer, this
release shall run with the land for the benefit of the City and its GovernmentalSuccessorsand
burdening the Development Parcels and Developer and the Successor Owners owning all or any
portion of the Development Parcels and all Persons claiming by, through or under Developer or
any Successor Owner of the Development Parcels or such portion thereof, including each End
User,and to further evidence its effectiveness with respect to Developer and the Successor Owners
of the Development Parcels, shall be included in its entirety in the Quitclaim Deed.
The provisions of this Section4.5.2shall survive the Close of Escrow and the
termination of this Agreement and shall not be merged with the Quitclaim Deed.
Covenants; Preconditions to Close of Escrow
4.6..
The following are covenants of Developer and conditions precedent to the Close of Escrow
for the benefit of the City as further described in this Section and in Section7.2.2(k),and shall be
satisfied by Developer not later than the times specified for such conditions inthePre-Closing
Schedule. Only the City has the right to waive any ofthe conditions in this Section4.6.
Financing Plan
4.6.1.. On or before the Effective Date, Developer shall provide
the City with a financing plan demonstrating the financial feasibility of the Project that includes:
a)revised overall cost and revenue estimates, (b) Project cost and revenue data including
business offer and economic feasibility of the proposed development; (c)an updated
comprehensive Project proforma demonstrating the feasibility of the Project, including a static
analysis and a cash flow analysis by quarter that shall reflect City comments to the preliminary
site plan;(d)a sources and uses table identifying the proposed use of each source of funding for
the Project;and(e)evidence reasonably satisfactory to the City that Developer has sufficient
additional funds available and is able to commit such funds to cover the difference, if any, between
costs of development of the Project and the amount available to Developer from external sources
Financing Plan
Additional Assurances
4.6.2.. At least thirty (30) calendar days prior to Close of
Escrow, Developer shall submit an update of the Financing Plan to the City, for the purposes of
confirming that Developer has sufficient funds for construction of the Project and for its operation
consistent with the terms of this Agreement and without a Mortgage. If the City is not reasonably
satisfied with the financial status of Developer following review of the Financing Plan, the City
shall be entitled to obtain such otherfinancial information as the City may request to demonstrate
nt.
Such information shall be subject to the confidentiality provisions of Section17.24.If Developer
is not a publicly traded company, and if the City is not reasonably satisfied with the financial status
of Developer following review of the updated Financing Plan, the City shall be entitled to obtain
the financial information of other members, ownersand/or partners of the proposed development
entity, if any,and their respective members, partners, shareholders and/or other owners at each tier
until substantial assets acceptable to the City in its sole discretion are identified.
City Approvals
4.6.3.. Developer shall have applied for and obtained all
Entitlements.Developer's application for the Entitlements shall be consistent with the Scope of
Development and the terms and conditions of this Agreement.
Insurance
4.6.4.. Within the time period required by Section11.2.3,Developer
shall have obtained and delivered to the City a binder or certificate evidencing the insurance
required by Section11, which insurance shall be effective upon the mutual execution of this
Agreement by Developer and the City.
Declaration of Ownership; Additional Documentation
4.6.5.. Prior to or
concurrently with the execution of this Agreement by Developer, Developer shall have delivered
to the City a declaration certified by the general counselof Developer,that the following
documentation submitted by Developer to the City prior to the Effective Date is true and correct:
copies of (a)a certificate of incorporation, California foreign entity registration, and a fully
executed bylaws (including any amendments thereto) of Developer; (b)copies of all resolutions
or other necessary actions taken by such entity to authorize the execution of this Agreement and
any other documentsor instruments required by this Agreement; (c)certificates of good standing
issued by the Delaware Secretary of State and by the California Secretary of State within thirty
(30) calendar days of the Effective Date; and (d)a copy of any Fictitious Business Name Statement
if any, as published and filed with the Clerk of Orange County.
Transferee
4.6.6.. When required by this Agreement, Transferee (including the
New Entity) shall deliver a certification in favor of the City from the chief financial officer or other
appropriate authorized officer of the Transfereein the form and substance of the certificate
Transferee/New EntityCertificate
attached as Attachment29Transfereehas
sufficient funds to fund the development of theProject, including all Developer Costsand
certifying as to the accuracy and correctness of and attachingthe following:
(a)A certificate of formation and California foreign entity registration
(if applicable) forTransferee;
(b)Evidence of authority of the individual(s) executing the Certificate to
bindTransfereeand to execute the Assignment Agreement;
(c)Copies of all resolutions or other necessary actions, if any, taken by
Transfereeto authorize the execution of the AssignmentAgreement; and
(d)Certificates of good standing issued within thirty (30) calendar days
of the date of delivery of the Assignment Agreement to the City, by the Secretary of State
of the state in which Transferee is formed and by the California Secretary of State (if
registration is required by applicable law).
Guaranty of Developer Obligations
4.6.7.. Unless Developer is a publicly
traded company, it shall be a requirement prior and as a condition precedent to the Close of Escrow
for the benefit of the City,and upon each subsequent Transfer,thatDeveloper shall identify a
Guarantor acceptable to the City in its sole discretion and shall cause such Guarantorto deliver in
accordance with and meeting the requirements ofthis Section4.6.7andSection4.7.1:
(a)afully executed and effective Guaranty which shall remain in effect
until the Recordingby the City of the Certificate of Complianceand shall guarantee, among
other things, (i)payment of all Development Costs for the Completion of the Improvements
for such Phase, including, for avoidance of doubt, (A) Completion of the Horizontal
Improvements and the Vertical Improvements, (B) the indemnities, releasesand other
obligations of Developer pursuant to Sections4.5.2(f), 5.5, 8.8, 8.9, 8.11, 8.12, 10.1, 10.2,
11.1(including payment of all deductible amounts),and Section17.12.1of this Agreement;
and (C) the indemnities and obligations arising during the Additional Liability Period for
which Developer remains liable under this Agreement; (ii)the costs and expenses incurred
by the City, if any, in enforcement by the City of its rights and/or remedies under this
Agreement with respect to non-performance by Developer of its obligations of Developer
under this Agreement and the Other Agreements, including the exercise by the City of the
Right of Purchase or Right of Reversion with respect thereto, but excluding the Repurchase
Price applicable to any Reacquired Property actually acquired by the City pursuant to the
Right of Purchase; provided that the City shall be entitled to retain the Reacquired Property
so acquired in its entirety, notwithstanding any contribution or payment made by Developer,
or by any Guarantor; and (iii)a
with the enforcement of the Guaranty; and
(b)A declaration certified by the chief financial officer or other
appropriate authorized officer of the applicable Guarantor in the form and substance ofthe
Guarantor Certificate
certificate attached as Attachment30rtifying as to the
execute the Guaranty and to the accuracy and correctness of and attaching the following for
the applicable Phase and Guaranty and attaching copies ofthe following: (i)a certificate of
formation and California foreign entity registration (if required by applicable law) for
Guarantor; (ii)evidence of authority of the individual(s) executing the Guaranty to bind
Guarantor and to execute the Guaranty, (iii)copies of resolutions or other necessary actions
taken by Guarantor to authorize the execution of the Guaranty, if any; and (iv)certificates
of good standing issued by the Secretary of State of the state in which Guarantor is formed
and by the California Secretary of State (if required by applicable law), within thirty (30)
calendar days of the applicable Close of Escrow.
Guaranty in Transfer Context
4.6.8.. In the event of a Transfer by Developer
of all of its interests in this Agreement,the obligations imposed upon any Guarantor hereunder
under any Guaranty shall, as a condition to such Transfer, be either retained in full by such
Guarantor or be assumed by a replacement Guarantor approved by the City in its sole discretion.
Upon each subsequent Transfer to a Developer prior to the issuance of a Certificate of Compliance
for which a Guaranty is required or for which Developer desires to replace its existing Guaranty
or Guarantor as permitted by this Agreementapproval,
in its sole discretion, of the proposed guarantors and proposed Guaranty, Developer shall cause
the proposed guarantors to deliver evidence of the financial capacity of the proposed guarantors,
authority of the proposed guarantors to provide the Guaranty, and copies of all documents
evidencing formation, good standing and authority requested by the City. If the City is notsatisfied
with the financial status of the proposed guarantor, then the Cityshall be entitled to obtain the
financial information of other members and/or partners of the proposed development entity (and
their respective members, partners, shareholders and/or other owners at each tier until substantial
assets are identified) and such other financial information as the City may request to demonstrate
this Agreement.
Pre-Close of Escrow Assurances of Equity Funding
4.6.9..In the event of a
Transfer by Developer of all of its interests inthis Agreementprior to the Close of Escrow, the
Transferee shall provide or shall cause its equity investors to provide an Equity Funding Certificate
in the form and substance of the certificate attached as Attachment32or as otherwise approved by
the City in its sole discretion which shall be executed by the chief financial officer or other
authorized officer of the Person providing equity funding for the Projectand shall provide
assurances to the City of the capacity of Transferee, acting on its own behalf or through such equity
investors, to fully fund the development of the Project and all Development Costs.
Guarantor Illiquidity Event
4.7..
Net Worth and Liquid Assets
4.7.1.. Developer shall cause each Guarantor, as
may be required by this Agreement,to maintain sufficient Net Worth and Liquid Assets to fully
discharge its obligations under the Guaranty executed by such Guarantor and to provide
adequate to fully discharge its obligations under such Guaranty. Without limiting the foregoing,
Developer shall cause Guarantor to agree, in writing, to the following Net Worth and Liquid Assets
standards for the benefit of the City:
(a)Unless otherwise agreed by the City in its sole discretion, Guarantor
shall maintain, untilexecution andRecording by the City of the Certificate of Compliance,
a Net Worth of not less than Two Hundred Fifty Million Dollars ($250,000,000) and Liquid
Assets of (i)with respect to Lennar Corporation, not less thanFifty Million Dollars
($50,000,000) at the Close of Escrow and Twenty-Five Million Dollars ($25,000,000)
thereafter,and (ii)in all other cases, unless otherwise agreed by the City in its sole
Minimum
discretion, not less than Seventy-FiveMillion Dollars ($75,000,000)
Liquidity Standards
(b)Developer, Guarantor and the City shall enter into a written
agreement upon terms approved by City,in its reasonable discretion, establishing the
procedures by whichGuarantor shall furnish specified financial reports to the City on a
regular basis, but not more often than quarterly, to assure that the Minimum Liquidity
Standards are met and that none of the events or actions described in Section2.2.5with
respect to the Guarantor have occurred (the failure of any such standard being, a
Guarantor Illiquidity Event
and
(c)In the event of a Guarantor Illiquidity Event, within thirty (30)
calendar days following the notice from the City of a Guarantor Illiquidity Eventto
Developer and Guarantor, Guarantor shall supplement its Net Worth and Liquid Assets to
meet the Minimum Liquidity Standards or Developer shall be required to provide the City
with additional security satisfactory to the City by (i)providing the City with a Guaranty
from a replacement or supplemental guarantor or guarantors acceptable to the City in its
sole discretion, or (ii)furnishing the City with another form of security such as a pledge of
specified assets or completion bond, in each case in a manner meeting the requirements of
the City in its sole discretion.
Default
4.7.2.. The failure of Developer to deliver or cause others to timely
deliver the financial reporting information to the City as required bySection4.7.1(b)when due
shall be a Potential Default of Developer under this Agreement. Notwithstanding any other
provision of this Agreement, the failure of Developer to provide(a)evidence of meeting the
Minimum Liquidity Standards;(b)a Guaranty from a replacement or supplemental Guarantor or
Guarantorsapproved by the City in its sole discretion,or (c)substitute security for the Guaranty
within the time period set forth in Section4.7.1(c), without extension for Force Majeure Delay,
shall constitute a Material Default under this Agreement.
5..
Due Diligence Period
5.1..
Developer acknowledges that while the City has been negotiating this Agreement with
Developer, Developer has had extensive access to the Property within which to undertake such
physical inspections and other investigations of, and inquiries concerning, the Property as may be
necessary to allow Developer to evaluate the physical characteristics of the Property, as well as
such other matters as may be deemed by Developer to be reasonably necessary to generally
redevelopment of the Property with the Project. In addition to the due diligence investigation
previously conducted by Developer, Developer shall have an additional period of time as identified
herein to undertake specific additional inspections and investigations as are necessary and
specifically permitted herein to allow Developer to continue to evaluate the feasibility and
satisfaction
the results of such inspection, examination and other due diligence with regard to the Property and
its suitability for construction of the Project as Developer may elect to conduct during the period
commencing on the Effective Date and ending on the date which is sixty (60) calendar days
Due Diligence Period
acknowledges and agrees that the Due Diligence Period is adequate time to complete such
investigation. As further described in Section5.3of this Agreement, Developer may give City
Diligence Termination Notice
Period stating whether Developer elects to terminate this Agreement or waive its due diligence
contingency and proceed to the Close of Escrow, subject to the other terms and conditions set forth
in this Agreement.
No Financing Contingency
5.2..
Developer represents and warrants that it has examined its ability to purchase the Property
ability to finance such construction without the
requirement for any Mortgage. Accordingly, Developer acknowledges and agrees that
respect to either private or public financing and that its acquisition of third party financing for the
ability to fund construction of the Project.
Termination of Agreement
5.3..
If Developer fails to give the Diligence Termination Notice on or before the end of the Due
Diligence Period, then Developer will be deemed to have disapproved the Due Diligence matters
and shall be deemed to have elected to terminate this Agreement pursuant to Section5.1.If
Developer elects to terminate this Agreement on or before the end of the Due Diligence Period (or
is deemed to have elected to terminate this Agreement upon the expiration of the Due Diligence
Period) pursuant to its termination rights set forth in Sections5.1or6.3, this Agreement shall
automatically terminate on the date of such election or deemed election,as applicable, and
thereafter, and in accordance with Section15.1.3, neither Party shall have any further obligations
under this Agreement (subject to the provisions that expressly survive the termination of this
Agreement); provided that Escrow Holder shall return the Purchase Price Deposit to Developer,
w Holder and outstanding
ENA Transaction Costs and City Transaction Costs to the extent not covered by the City Costs
Deposit, if any.
Limited License
5.4..
The City grants to Developer for use by Developer and its officers, directors, employees,
agents, representatives, contractors, and other Persons accessing the Development Parcels by,
Developer
Representatives
Parcels for
purposes of (a)(b)obtaining data and
making surveys and tests necessary to carry out this Agreement, provided that, prior to the
effectiveness of such license, Developer shall: (i)deliver to the City written evidence that
Developer has procured the insurance required under Section11.1;(ii)give the City twenty-four
(24) hours telephonic, electronic mail or written notice of any intended access which involves work
on the Development Parcels or may result in any impairment of the use of the Property or any
portion thereof or any adjacent property by any then-current owners, occupants, or contractors;
(iii)access the Property in a safe manner; (iv)conduct no environmental testing, sampling,
invasive testing, or boring without the written consent of the City(and, in all cases, Developer
shall not carry out any environmental testing, sampling, invasive testing, or boringon the
DevelopmentParcels prior to the effective date of the environmental insurance policydescribed
inSection11.1.4);(v)allow no dangerous or hazardous condition to be created or caused on the
Property; (vi)comply with all Governmental Requirements and obtain all permits required in
connection with such access; (vii)conduct inspections and testing during normal business hours
limited license shall commence on the Effective Date, may be revoked by the City during the
continuation of any Default by Developer, or upon termination of this Agreement by any Party,
and shall be automatically revoked and terminated upon the earlier to occur of a delivery by
Developer of a Diligence Termination Noticeor the Close of Escrow.
Indemnity
5.5..
Developer hereby agrees to protect, indemnify, defendand hold harmless the City
Indemnified Parties from and against any and all Claims to the extent arising from or related to
(a)the actsor omissions to act of Developer or the Developer Representatives arising from the
presence,activities or work on or use of the Development Parcels or from the exercise of the
license provided in Section5.4by Developer or the Developer Representatives, including with
respect to any inspections, surveys, tests, Investigations and studies carried out by Developer or
the Developer Representatives on the Development Parcelsprior to the Close of Escrow,(b)entry
onto the Development Parcels by Developer or the Developer Representatives in connection with
this Agreement, and (c)bodily injury to or death of any person (including any employee or
contractor of the City Indemnified Parties) or damage to or loss of use of property resulting from
such acts or omissions of Developer or any , and in each case whether
occurring prior to or following the Effective Date; provided that the foregoing indemnity shall not
apply to the extent of (i)the gross negligence, willful misconduct or fraud of City or any City
Indemnified Party,(ii)Hazardous Materials existing on the Development Parcels prior to Close of
Escrow unless such Hazardous Materials condition is exacerbated by, or any Release causedby,
negligent acts, or (iii)the Active Negligenceof
the City or the Cityarising from the presence,activities or
work on or use of the Development Parcelsprior to the Close of Escrow.Developer shall keep
the Development Parcels free and clear of anyand all Construction Liens
inspection and/or Investigation of the Property. Subject to Section9.7of this Agreement, the
indemnification by Developer set forth in this Section5.5shall survive (A)the Close of Escrow
and shall not be merged into the QuitclaimDeed, and (B)any termination of this Agreement prior
to Close of Escrow.
Review of Certain Records and Materials
5.6..
The City shall, within ten (10) Business Days of the Effective Date, provide Developer
with copies of all City-produced plans, reports, studies, investigations and other materials the City
may have in its possession that are pertinent to the Property and/or development of the Projectand
not previously delivered; provided that the City makes no representation, warranty or guaranty
regarding the completeness or accuracy of such plans, reports, studies, investigations and other
materials, including the right to examine those books, records and files of the City relating to the
environmental and other condition of the Property which the City determines in its sole discretion
are not subject to attorney-client privilege or other privilege or disclosure rules. The City agrees
accountants, and other representatives at City Hall any time during business hours on Business
Days upon reasonable notice from Developer.
Communications with City and Third Parties
5.7..
From and after the Effective Date, communications with the City by Developer and the
Developer Representatives shall be directly with the City Manager, who shall be the administrator
of this Agreement on behalf of the City, and such other employees, consultants, and attorneys of
the City from time to time as the City Manager may designate. In addition, Developer shall have
the right to communicate with staff of other public agencies; and with third parties to all
agreements affectingthe Property in connection with Developer
Propertyand development of the Project. The City staff shall have the right, but not the obligation,
to attend and participate in any and all meetings with other public agencies, with regard to the
Project. Upon request of the City, Developer shall promptly provide the City with a copy of each
material item of correspondence (including emails, letters, facsimiles, and any enclosures and
attachments) sent to or received by Developer from third parties in connection with entitlement,
community, or governmental approval of the Project, provided, however, that Developer shall not
be obligated to deliver any such materials that based upon advice of counsel are determined to be
subject to attorney-client or other privilege.
Title; Survey
6..
Survey by Developer
6.1..
Developer, prior to the end of the Due Diligence Periodand
Survey
Surveyor
Company. The Survey shall depict: (a)the boundaries of each of the proposed Development
Parcels, (b)the location of all existing improvements (if any), existing perimeter improvements (if
any), and easements, roads, rights-of-way and encroachments located within twenty (20) feet of
the boundary of the Development Parcels, (c)all other Permitted Exceptions susceptible to
depiction on a map or survey identified by reference to the recording information applicable to the
documents creating them, and (d)any portion of the Development Parcels lying within a flood
hazard area.
Permitted Exceptions
6.2..
Title Company to prepare
and deliver to Developer and the City with respect to the Development Parcels the preliminary title
report attached as Attachment4and may cause the Title Company to issue additional preliminary
Preliminary Title Reports
ALTA Policy
and such additional amounts as Developer may request of Title Company. During the Due
Diligence Period, Developer shall review the Preliminary Title Reports and the other relevant
documents referenced below, and may object to matters set forth in the Preliminary Title Reports
and request that the Title Company remove from the ALTAPolicy those exceptions to title
Permitted Exceptions
shall include the following: (a)as of the last day of the Due Diligence Period, all matters set forth
on the Preliminary Title Reports, set forth on the Survey, and not otherwise deleted from the
Preliminary Title Reports nor endorsed over by the Title Company; (b)the Other Agreements that
are to be recorded pursuant to Section7.4.6(b);(c)the District, and (d) all covenants, restrictions
and encumbrances, liens, exceptions, leases, restrictions, deed restrictions and qualifications
expressly set forth in or permitted or contemplated by this Agreement or the Other Agreements.
Notwithstanding anything to the contrary in this Agreement, the City shall deliver the Property to
Developer free and clear of all monetary liens other than(i) liens for real property taxes that are
not yet delinquentand (ii)Construction Liens and/or other liensor costs arising from or in
connection with (A) thelimited license granted pursuant to Section5.4;(B) the License Agreement
and/or (C)the acts or omissions to act of Developer or the Developer Representatives with respect
towork on or use of the Property or adjoining property owned by the City pursuant to the License
Agreement prior to the Close of Escrow.
Supplemental Title Reports
6.3..
If, after the end of the Due Diligence Period, the Title Company discloses additional
mattersthat affect title to the Development Parcels, then within ten (10) calendar days after
Supplemental Title Report
upplemental
on such Supplemental Title Report not previously included in the Preliminary Title Reports and
Disapproved Exception
suggested cure thereof; provided, that Developer shall not have the right to disapprove any item or
exception specifically consented to by Developer, including all exceptions arising pursuant to this
Agreement and all matters appearing on the Preliminary Title Report. Failure of Developer to
disapprove any item or exception shown on any such Supplemental Title Report on or before the
expiration of such ten (10) calendar day period shall be deemed to be an approval of the matters
set forth in such Supplemental Title Report. If Developer designates a Disapproved Exception,
Developer shall specify in writing its reason for such disapproval, and the City shall have the right,
but not the obligation, to (a)remove or cure the Disapproved Exception to the reasonable
satisfaction of Developer, or (b)subject to the last sentence of Section6.2, elect not to cure such
cure such Disa
Disapproved Exception. If the City elects or is deemed to have elected not to cure anysuch
(i)to accept such
Disapproved Exception and proceed to take title to the Property in the manner set forth in this
Agreement and without either deduction or offset to the Base PurchasePriceor the Profit
Participation Price, and waive such Disapproved Exception without cause of action hereunder
against the City, or (ii)to provide written notice to the City within five (5) calendar days after the
Escrow, in which case the Purchase Price Deposit, to the extent previously paid by Developer,
shall be refunded to Developer in accordance with Section5.3
City w
ction not to terminate
this Agreement under the foregoing clause(ii). In the event Developer shall not have terminated
this Agreement under clause(ii)of the preceding sentence, then all matters and exclusions or
exceptions from title insurance coverageshown in such Supplemental Title Report which
Developer shall have accepted (or been deemed to have accepted) pursuant to this Section6.3
(other than those which the City has agreed to cure as provided in this Section6.3), together with
Permitted Exceptions
all Permitted Exceptions described in Section6.2.
ALTA Policy; Endorsements
6.4..
Company issue the ALTA Policy with policy amount equal to the Base Purchase Price and subject
Original ALTA Coverage
ity
in its reasonable discretion. Developer shall have the right, at its sole expense, to request and
obtain additional ALTA coverage for the value of the development cost of the Project
Additional ALTA Coverage
deems necessary (the
Developer Title Endorsements
Coverage and the Developer Title Endorsements shall not delay the Close of Escrow and shall not
be a condition precedent to the Close of Escrow. At the Close of Escrow, the City shallpay the
City Premium and the Developer shall pay all other costs associated with issuance of the ALTA
Policy, including costs of the ALTA Policy,Developer Title Endorsements and the cost of a
urance, if any.
City Title Policy
6.5..
Company issue the City Title Policy subject only to the Permitted Exceptions.Developer shall
acceptable to Developer in its reasonable discretion. At the Close of Escrow, Developer shallpay
the premium for the City Title Policy.
Closing
7..
Time and Place of Closing
7.1..
Close of Escrow
7.1.1.. Unless otherwise mutually agreed by the Parties in
writing, the Close of Escrow shall take place on that date which is ten (10) Business Days following
the last to occur of the satisfaction,or the waiver thereof by the Party for whose benefit the
condition applies, of the Developer Closing Conditions set forth in
Sections7.2.1(d),(e),(f),(g)and(l)and the City Closing Conditions set forth in
Closing Date
Sections7.2.2(c),(d),(e),(f),(g),(h),(j),(k)and(n);provided that in no
event shall Developer beobligated to close Escrow unless it has received at least five(5) Business
of such City
Closing Conditions and provided, further, that the Close of Escrow shall in no event be later than
Outside Closing Date
June 28,2018,and provided further that if the provisions of
Section7.1.3apply, the Closing Conditions set forth in Sections7.2.1(g)and7.2.2(e)shall be
deemed to be excluded from the foregoing listof conditions required to be satisfied prior to
establishment of the Closing Date. The Close of Escrow shall be subject to the satisfaction of the
conditions set forth in Sections7.2and7.3, and shall take place at the offices of Escrow Holder,
or at such other place that the City selects. Notwithstanding the foregoing, if on or before the
TUSD
Outside Closing Date either:(a) the City and Thave not
enteredinto a TUSD Agreement pursuant to which TUSD has agreed,upon receipt of payment in
full of an agreed-upon sum from the City at the Close of Escrow, to either release the lien of the
TUSD CFD or to provide other evidence demonstrating payment in full of the TUSD CFD as to
the Property at Close of Escrowas described in Section8.17.4,or(b)the City shall nothave
formedthe District,in accordance with Section8.7.3, withsuch formation Finally Approved,then
in either case, theCity shall have the right, in its sole discretion, but not the obligation, to extend
the Outside Closing Date for a period not to exceed three (3) months at no cost to theCityin order
to continue to achieve the TUSD Agreement and the Final Approval of the District; provided that
the failure of TUSD to remove the lien of the TUSD CFD and the failure of the City to enter into
the TUSD Agreement or to approve the District for any reason shall not be a Default by the City
under this Agreement.
Extension of Closing Dates
7.1.2..The Closing Date (and Outside Closing Date)
may be extended upon mutual written agreement of the Parties. In the event that the Close of
Escrow does not occur on or prior to the Outside Closing Date (as such date may be automatically
extended pursuant to Section7.1.1), then, subject to the provisions of Section15or any agreement
by the Parties (in their sole and absolute discretion) to extend the Outside Closing Date, this
Agreement shall terminate at the end of the Business Day on the Outside Closing Date.
Closing on Metes and Bounds Description
7.1.3..If all Closing Conditions are
satisfied other than those set forth in Sections7.2.1(g)and7.2.2(e), and the sole reason that the
foregoing conditions are not satisfied is that the County has received a form of Final Map approved
by the City but the County has not approved the Final Map for Recordingand therefore the Final
Map is not Recorded,(a) Developer shall cause to be prepared, at its sole cost and expense, a metes
and bounds legal description for(i)theProperty,(ii)the areasaffected by the Public Access
Easement,and(iii)allrequired easement and dedication areasshown on the Tentative Tract Map,
which such metes and bounds legal descriptionsshallbe used as legal descriptions for documents
to be Recorded at the Close of Escrow,(b)upon approval thereof by the City and Developer and
provision by Developer of all Performance Bonds andsuch other security for construction of the
Improvements in accordance with the Approved Plans and the Entitlements as the City may request
in its sole discretion, the Parties shall waive the recording of the Final Map as a condition to Close
of Escrow and utilize such metes and bounds description in order to cause the CloseofEscrow,
and (c) Developer shallpromptly pursue the Recording of the Final Map, including making all
revisions requested by the County for the authorization of the Recording of the Final Map, and
shall cause the Final Map to be Recorded on or before the date set forth for such Recording in the
Schedule of Performance.
Conditions Precedent to Close of Escrow.
7.2.
Developer Closing Conditions
7.2.1..
Property and to complete all requirements for the Close of Escrow is subject to and conditioned
upon the satisfaction o
Developer Closing Conditions
(a)Document Deliveries. Not later than two (2) Business Days prior to
the Close of Escrow, the City shall have executed and delivered to Escrow Holder the
following documents, in each case (where applicable) substantially in the form and
substance of the instruments attached as Attachments to this Agreement, unless otherwise
agreed by the Parties, each intheir sole discretion:
(i)if not previously Recorded, the Memorandum of DDA,
acknowledged and in Recordable form;
(ii)the Special Restrictions, acknowledged and in Recordable
form;
(iii)a Quitclaim Deed for the Property, acknowledged and in
Recordable form;
(iv)if not previously recorded, the DA,acknowledged and in
Recordable form;
(v)theProfit Participation Agreement;
(vi)the Landscape Maintenance Agreement,acknowledged and
in Recordable form;
(vii)the Public Access Easement,acknowledged and in
Recordable form;
(viii)
(ix)
Form 593-C;
(x)A bill of sale for of all City-owned utility systems previously
owned by the military on the Development Parcels and providing for
removal and abandonment of those systems for construction of
Improvements, which shall includean assignment by the City to Developer
Bill of Sale
of all Intangible Property
(xi)
set forth in Sections3.3and17.12.2,in substantially the form and substance
of the certificate attached hereto as Attachment17,which reaffirmation
shall identify any representation or warranty which is not, or no longer is,
true and correct and explaining the state of facts giving rise to the change.
In no event shall the City be liable to Developer for, or be deemed to be in
Default under this Agreement by reason of,any breach of representation or
warranty which results from any change that (A)occurs between the
Effective Date and the date of Close of Escrow, and (B)is expressly
permitted under the terms of this Agreement or is beyond the reasonable
control of the City to prevent;
(xii)
into this Agreement and consummate the transactions contemplated hereby,
and such proof of the power and authority of the individual(s) executing
and/or delivering any instruments, documents or certificates on behalf of
the City to act for and/or bind the City as may be reasonably required by
Title Company and/or Developer; and
(xiii)if and only ifthe Final Map is not Recorded prior to or
concurrently with the Close of Escrow, the Request for Partial
Reconveyance, in substantially the form and substance of the instrument
attached hereto as Attachment33A, to which shall be attached the Partial
Reconveyancein substantially the form and substance of the instrument
attached hereto as Attachment33B;
(xiv)such other documents or instruments as Escrow Holder may
reasonably request to consummate the transaction contemplated in this
Agreement.
(b)Title Policy. The Title Company shall be in a position to issue the
ALTA Policy to Developerfor the Development Parcels in the amount of the Base Purchase
Priceand subject only to the Permitted Exceptions.
(c)Pre-Existing Obligations. Except with respect to the License
Agreement or as otherwise approved by Developer in writing or constituting a Permitted
Exception, there shall exist no leases, contracts or rights of occupancy or other agreements
or contracts with respect to the Property (but excluding the provisions of the Federal Deeds
and the Memorandum of Agreement) entered into by the City that shall survive the Close
of Escrow.
(d)Entitlements. Developer shall have timely applied for and shall have
been granted all Entitlements required for development of the Project and all applicable
appeal and statute of limitations periods relating thereto shall have expired without the filing
of any appeal or legal challenge or any such appeal or legal challenge shall have been
resolved in favor of Developer and the Project.
(e)Design Review. Developer shall have timely applied for and shall
have been granted approval of the Basic Concept Plan for the Project, which shall be
substantially in conformance with the Site Plan and the Scope of Development.
(f)Permits.Developer shall have timely applied for and the City shall
be prepared to issue all grading permits for the Grading Work.
(g)Final Map. Developer shall have timely applied for and processed,
and if timely applied for andprocessed,theCityshall have approved the Final Mapandthe
County shall have approved the Final Map and the Final Map shall have been Recorded;
provided, however, that, in the event the provisions of Section7.1.3apply, the Final Map
need not have been approved by the CountyandRecorded.
(h)No Casualty or Condemnation. There shall not have occurred any
material casualty or condemnation with respect to the Property and no material
condemnation shall be threatened with respect to the Property.
(i)No Litigation. No litigation shall be threatened or pending which
seeks to prevent the development or operation of the Project, or any part thereof,according
to the terms of this Agreement and the Other Agreements.
(j)Representations and Warranties
warranties set forth in in Sections3.3and17.12.2shall be true and correct as of the Close
of Escrow, provided, in no event shall the City be liable to Developer for, or be deemed to
be in Default under this Agreement by reason of, any breach of representation or warranty
which results from any change that (i)occurs between the Effective Date and the date of the
Close of Escrow, and (ii)is expressly permitted under the terms of this Agreement or is
beyond the reasonable control of the City to prevent. The occurrence of a change in a
representation and warranty shall, if materially adverse to Developer or the Property, as
determined by Developer -
fulfillment of the condition set forth in this Section7.2.1(j), unless such matter is cured at
least one (1) Business Day prior to the Close of Escrow. If, despitechanges or other matters
representations and warranties set forth inSections3.3and17.12.2shall be deemed to have
been modified by all statements made in such certificate.
(k)Default. The City shall not be in Default of any covenant or
agreement to be performed by the City under this Agreement.
(l)TUSD Agreement. The City and TUSDshall have entered into the
TUSD Agreement in form acceptable to the City in its sole discretion.
City ClosingConditions
7.2.2.
Deed for the Property and to complete all requirements for the Close of Escrow is subject to and
cond
City Closing Conditions
(a)Developer Closing Payment. Not later than one (1) Business Day
prior to the Close of Escrow, Developer shall deliver to Escrow (i)the Developer Closing
Payment and (ii)any other costs explicitly set forth in this Agreement as costs to be paid by
Developer at the Close of Escrow, including the master marketing program fee described in
Section8.7.4.
(b)Document Deliveries. Not later than two (2) Business Days prior to
the Close of Escrow, Developer shall have executed and delivered to Escrow Holder the
following documents, in each case (where applicable) substantially in the formand
substance of the instruments attached as Attachments to this Agreement, unless otherwise
agreed by the Parties, each in their sole discretion:
(i)if not previously executed and Recorded, the Memorandum
of DDA, acknowledged and in Recordable form;
(ii)an Acceptance of the SpecialRestrictionsacknowledged and
in Recordable form;
(iii)an Acceptance of the Quitclaim Deed, acknowledged and in
Recordable form;
(iv)if not previously recorded, the DA,acknowledged and in
Recordable form;
(v)the Profit Participation Agreement;
(vi)the Landscape Maintenance Agreement,acknowledged and
in Recordable form;
(vii)the Bill of Sale;
(viii)the Public Access Easement acknowledged and in
Recordable form;
(ix)if required pursuant to this Agreement, a Guaranty executed
by Guarantorapproved by the City in itssole discretion, which Guaranty
shall be in substantially the form and substance of that attached hereto as
Attachment27or as otherwise agreed by Guarantor and the City each in its
sole discretion and a Legal Opinionexecuted by legal counsel to Guarantor;
(x)
warranties set forth in Section3.1(as the samemay be modified pursuant
toSection3.2)and Section17.12.1(or in the case where the Merger or any
other Transfer occurs prior to the Close of Escrow, the representations and
warranties made by the New Entity or Transferee, as applicable, in the
applicable Assignment Agreement) in substantially the form and substance
of the certificate attached hereto as Attachment18,which reaffirmation
shall identify any representation or warranty which is not, or no longer is,
true and correct and explaining the state of facts giving rise to the change;
(xi)a declaration certified by an officer of Developer in the form
and substance ofthe certificate attached hereto as Attachment18that the
documentation submitted by Developer to the City pursuant to Section4.6.5
prior to the Effective Date is true and correct as of the Close of Escrow
together with certificates of good standing of Developer, issued by the State
ofDelaware and by the California Secretary of State within thirty (30)
calendar days of the Closing Date;
(xii)
enter into this Agreement and consummate the transactions contemplated
hereby, and such proof of the power and authority of the individual(s)
executing and/or delivering any instruments, documents or certificates on
behalf of Developer to act for and/or bind Developer as may be reasonably
required by Title Company and/or the City;
(xiii)the City Deed of Trust acknowledged and in recordable form
in favor of the City and to be recorded against Lots 6 and 7, or if the Final
Map is not then Recorded, to be recorded against the entirety of the
Development Parcels;and
(xiv)such other documents or instruments as Escrow Holder may
reasonably request to consummate the transaction contemplated in this
Agreement.
(c)Entitlements. Developer shall have timely applied for and shall have
been granted all Entitlements required for development ofthe Project and all applicable
appealand statute of limitations periods relating thereto shall have expired without the filing
of any appeal or legal challenge or any such appeal or legal challenge shall have been
resolved in favor of Developer and the Project.
(d)Design Review. Developer shall have timely applied for and shall
have been granted approval of the Basic Concept Plan for the Project, which shall be
substantially in conformance withthe Site Plan and the Scope of Development.
(e)Final Map and Performance Bonds. The Final Map shall have been
approved by the City andthe County shall have approved the Final Map and the Final Map
shall have been Recorded, provided, however, that, in the event the provisions of
Section7.1.3apply, the Final Map need not have been approved by the County and
Recorded;if not previously delivered in connectionwith such Recording or required
pursuant to then effective Subdivision Improvement Agreement, Developer shall have
provided one or more Performance Bonds in favor of the City as obligee securing
(f)Permits. Developer shall have timely applied for and the City shall
be prepared to issue all grading permitsfor the Grading Work.
(g)DistrictFormation. The City shall have formedthe District,in
accordance with Section8.7.3,andsuch formationshall be Finally Approved.
(h)CC&Rs. Developer shall have submitted for City review a first draft
of the CC&Rsas specified in Section13.1, which shall have been approvedby the City
pursuant to Section13.1.
(i)Insurance. Developer shall have provided to the City evidence of
insurance as and to the extent required by Section11.
(j)Financial Capability. Developer shall have satisfied the conditions
precedent to Close of Escrow set forth in Section4.6.1to the satisfaction of the City in its
sole discretion, including delivery to the City of evidence as required by such provisions
demonstrating (i)the availability of funds,without third party financing or Mortgage of any
kind,sufficient to pay all costs relating to acquisition of the Property and development of
the Project on the Property, including sufficient equity capital to design, construct and
operate the Project (ii)no material adverse change in the financial capacity or condition of
Developer or its financial or organizational relationships from that presented to the City as
of the Effective Date, (iii)that the Financing Plan remains in full force and effect, or as
modified, is satisfactory to the City in its solediscretion, and (iv)that the Project budget for
the Improvements remains a reasonable budget.
(k)Additional Conditions. Developer shall have satisfied the conditions
precedent to Close of Escrow set forth in Sections4.6.1through4.6.5of this Agreement
and shall be in compliance with the requirements of Section8.5.2.
(l)Representations and Warranties
warranties set forth in Sections3.1and17.12.1(or in the case where the Merger or any other
Transferoccurs prior to the Close of Escrow, the representations and warranties made by
the New Entity or Transferee, as applicable, in the applicable Assignment Agreement) shall
be true and correct as of the Close of Escrow, provided, in no event shall Developerbe liable
to City for, or be deemed to be inDefault under this Agreement by reason of, any breach of
representation or warranty which results from any change that (i)occurs between the
Effective Date and the date of the Close of Escrow, and (ii)is expressly permitted under the
terms of this Agreement or is beyond the reasonable control of Developer to prevent. The
occurrence of a change in a representation and warranty shall, if materially adverse to City,
as determined by City in iness judgment, constitute the non-fulfillment
of the condition set forth in this Section7.2.2(l), unless such matter is cured at least one (1)
Business Day prior to the Close of Escrow. If, despitechanges or other matters described
representations and warranties set forth in Sections3.1and17.12.1(or in the case where the
Merger or any other Transfer occurs prior to the Close of Escrow, the representations and
warranties made by the New Entity or Transferee, as applicable, in the applicable
Assignment Agreement) shall be deemed to have been modified by all statements made in
such certificate.
(m)Default. Developer shall not be in Default of any covenant or
agreement to be performed by Developer under this Agreement.
(n)TUSD Agreement. The City and TUSDshall have entered into the
TUSD Agreement in form acceptable to the City in its sole discretion.
(o)City Title Policy.The Title Company shall be in a position to issue
the CityTitle Policy to the City for the portions of the Development Parcels securing the
City Deed of Trust and subject only to the Permitted Exceptions.
Additional Close of Escrow Conditions
7.3..
In addition to the provisions of Section7.2, the Close of Escrow shall be conditioned upon
the following Closing Conditions, which shall be for the benefit of each Party:
(a)Closing Cost Statement. Escrow Holder shall have delivered at least
seven (7)Business Days prior to the Close of Escrow a statement of costs to each Party and
at least two (2) Business Days prior to the Close of Escrow each of the Parties shall have
approved such statement as being consistent with the provisions of Section7.4.
(b)Closing Certificate. Each Party shall submit to Escrow Holder a
certificate stating that all Closing Conditions for its benefit have been satisfied or waived.
Procedures for Conveyance
7.4..
Costs and Expenses
7.4.1.. The costs and expenses of the Close of Escrow shall
be allocated as follows:
(a). The City shall pay (i)theCityPremium;(ii)one-half
(1/2) of all Escrow fees and costs; (iii)all documentary transfer taxes, if any; and (iv)the
(b). Developer shall pay (i)the entire cost of the
ALTA Policy, along with the costof any other title insurance coverage,in excess of the City
Premiumand all other costs associated with issuance of the ALTA Policy, Developer Title
,(ii)the entire cost
of the Survey and any additional land surveys obtained by Developer in connection with the
foregoing; (iii)document recording charges for the Special Restrictions, the Quitclaim
Deed, the Memorandum of DDA and all other Recorded documents; (iv)one-half (1/2) of
all Escrow fees and costs; and (v)
fees of all consultants and employees (including lawyers and environmental, engineering
and land use consultants) engaged by it.
(c)Other Costs. All costs and expenses related to the Close of Escrow
and the transfer of the Property to Developer not otherwise allocated in this Agreement shall
be allocated between the Parties in accordance with the customary practice in Orange
County, California.
Possession
7.4.2.. The City shall deliver possession of the Property at the Close
of Escrow.
Deliveries to Developer Upon Close of Escrow
7.4.3.. The City agrees to deliver
to Developer, on or prior to the Close of Escrow, outside of Escrow, the following items with
respect to the Property:
(a)Records and Plans
or copies of records and plans that will affect the Property after the Close of Escrow.
(b)Licenses and Permits
originals or copies of all licenses and permitsaffecting the Propertyother than the License
Agreement.
Prorations
7.4.4..
(a)General. Rentals, revenues and other income, if any, from the
Property shall be prorated on a cash basis as of 11:59 P.M. Pacific Time on the day
preceding the Close of Escrow. Tax payments shall be prorated in accordance with
Section7.4.4(b).
(b)Taxes. Except as set forth in Section7.4.4(c),Developer shall be
responsible for all taxes, assessments, fees and charges imposed by any Governmental
Authority with respect to the Property conveyed to it and all existing and future
improvements thereon from and after the Close of Escrow. If, after the Close of Escrow,
any real estate taxes or possessory interest taxes are assessed against any conveyed parcel
pertaining to the period prior to the Close of Escrow, the City agrees to contact the
applicable taxing authority and seek recognition and enforcement of its tax exemption. The
provisions of this clause(b)shall survive the Close of Escrow and shall not merge into the
QuitclaimDeed.
(c)TUSD CFD. At the Close of Escrow, and provided that TUSDand
City have entered intoaTUSD Agreement pursuant to which TUSD has agreed, upon
receipt of payment in full of an agreed-upon sum from the City at the Close of Escrow, to
either release the lien of the TUSD CFD or to provide other evidence demonstrating
payment in full of the TUSD CFD as to the Property at Close of Escrow, City shall be
responsible to pay in full the lien of the TUSD CFD upon the Property from the Base
Purchase Price
Method of Proration
7.4.5.. All prorations shall be made in accordance with
customary practice in Orange County, except as otherwise expressly provided in this Agreement.
Developer and the City agree to cause a schedule of prorations to be prepared prior to the Close of
Escrow. Such prorations, if and to the extent known and agreed upon as of the Close of Escrow,
shall be paid by Developer to the City (if the prorations result in a net credit to the City) or by the
City to Developer (if the prorations result in a net credit to Developer) by increasing or reducing
the cash to be paid by Developer at the Close of Escrow. Any such prorations not determined or
not agreed upon as of the Close of Escrow shall be paid by Developer to the City, or by the City
to Developer, as the case may be, in cash as soon as practicable following the Close of Escrow. A
copy of the schedule of prorations as agreed upon by Developer and the City shall be delivered to
Escrow Holder at least three (3) Business Days prior to the Close of Escrow. All prorations
provided for in Section7.4.4and this Section7.4.5
hundred sixty-five (365) day year.
Disbursements and Other Actions by Escrow Holder
7.4.6.. At the Close of
Escrow, and subject to the satisfaction or waiver by the benefited party of the conditions to Close
of Escrow described in Section7.2, Escrow Holder shall promptly undertake all of the following
in the manner indicated below:
(a)Funds. Debit or credit all matters addressed in Section7.4.1and
prorate all matters addressed in Section7.4.4and disburse to the City the Base Purchase
Price (as adjusted by the foregoing debits, credits and prorations).
(b)Recording. Cause to be Recorded against the Development Parcels,
in the following order: the Memorandumof DDA, the Special Restrictions, the Quitclaim
Deed, thePublic Access Easement, the Landscape Maintenance Agreement,the City Deed
of Trust, and thereafter, other documents that Developer and the City may mutually direct,
or that may be required by the terms of this Agreement to be Recorded, obtain conformed
copies thereof and distribute same to Developer and the City.
(c)Title Policy. Direct the Title Company to issue the ALTA Policy to
Developer in the amount of the Base Purchase Price and subject only to the Permitted
Exceptionsa
CityTitle Policy
Dollars ($4,000,000)and subject only the Permitted Exceptions.
Concurrently with the issuance of the ALTA Policy, the Title Company shall provide the
Developer Title Endorsements, provided that the issuance of such Developer Title
Endorsements shall not be a condition to Close of Escrow, except for those endorsements
that the City agreed to obtain in order to cure any disapproved title exceptions or survey
matters.Concurrently with the issuance of the City Title Policy, the Title Company shall
provide to the City the endorsements requested by City; provided, however, that the costs
of any such endorsements shall be paid for bythe City.
(d)Delivery of Documents to Developer and City. Deliver to each Party
original counterparts (and conformed copies, if applicable) of the DA(if not previously
recorded), theSpecial Restrictions, the Memorandum of DDA (if not previously recorded),
theQuitclaimDeed, the Profit Participation Agreement, thePublic Access Easement, the
Landscape Maintenance Agreement, the City Deed of Trust, theBill of Sale, theFIRPTA
Affidavit, the California Form 593-W and any other documents (or copies thereof)
deposited into Escrow by Developer or the City pursuant hereto, and deliver to the Parties
a certified copy of their respective Escrow closing statements.
(e)City Deed of TrustPartialReconveyance. If the same is delivered by
the City, retain the Request for Partial Reconveyancewith respect to the City Deed of Trust
until such time as Escrow Holder is instructed by the terms of the Request for Partial
Reconveyanceand Section 4.4.8of this Agreementto Record the Partial Reconveyance,
and then, and only then, to cause the Title Company to execute the Partial Reconveyance
and to cause the Partial Reconveyanceto be Recorded.
(f)Other Actions. Take such other actions as the Parties direct pursuant
to mutually executed supplemental Escrow instructions.
Notice
7.4.7..All communications from the Escrow Holder shall be directed to
the addresses and in the manner established in Section17.6for notices, demands and
communications between the Parties.
Partial Reconveyance
7.4.8.. In the event the Final Map is not Recorded prior to
or concurrently with the Close of Escrow, the executed Request for Partial Reconveyance
delivered to Escrow by the City in accordance with Section 7.2.1(a)(xiii)shall be held by Escrow
Holder until such time as the Final Map is Recorded. Immediately following the Recordation of
the Final Map, but in no other circumstance, First American Title Insurance Company, as trustee
of the City Deed of Trust, shall execute and deliver to Escrow Holder the Partial Reconveyance,
in substantially the form and substance as attached hereto as Attachment 33B, and Escrow Holder
shall immediately Record such Partial Reconveyance, without further instruction from the Parties.
This provision shall survive the Close of Escrow.
Development of the Property and Additional Covenants of Developer and City
8..
Scope of Development
8.1..
Requirement to Develop the Project
8.1.1.. The Scope of Development attached
to this Agreement as Attachment8sets forth the overall plan for the Project and development of
the Development Parcels, including design, development, and construction of the Improvements
as may be required by each Entitlement approval. Until the issuance of the Certificate of
Compliance and except as otherwise permitted by Section2.2, no Person shall be permitted or
authorized to undertake the construction of any improvements on the Development Parcels or any
portion thereof (including the Improvements) unless such Person is Transferee pursuant to a
Permitted Transfer or has been approved by the City as a Transferee pursuant to Section2.2and
in any such case has assumed in writing all obligations of Developer under this Agreement and the
Other Agreements, pursuant to an Assignment Agreement.The provisions of this Section shall
survive termination of this Agreement.
Control of Site Development
8.1.2.. Developer shall have control over the
design and layout of the Improvements (including height, shape and location of the Vertical
Improvements and special landscaping and art features) and over the special uses to be
incorporated therein, subject to (a)the Approved Plans, Development Permits and Entitlements,
including any conditional use permit necessitated by particular proposed uses or design features
and (b)the design approval provisions set forth in Section8.4for the benefit of the City, which
are undertaken by the City in its Proprietary Capacity.
Project Development Costs
8.1.3.. Within the time set forth in the Pre-Closing
Schedule and the Schedule of Performance, as applicable, Developer shall design and construct
bsidy of
any kind, unless otherwise agreed in writing by the City in its sole discretion. Without limiting
the generality of the foregoing, Developer hereby agrees that all costs associated with planning,
designing and constructing the Project, preparing the Property and constructing all Improvements
(whether on-site or off-site) required in connection with the Project, including all hard costs, soft
costs, the cost of services, fees,exactions, dedications, cost overruns, profit, overhead, marketing
fees,
fees, wages required to be paid to any person employed by Developer, any Transferee, contractor
or subcontractor, and the costs of the Project Fair Share Contribution (collectively, the
Development Costs
City.Developer will be responsible for all costs of any necessary in-tract improvements, including
those identified for the Property on Attachment9.
Compliance with Governmental Requirements and Other
8.1.4.
Requirements
. Developer shall develop the Project and the Development Parcels in the manner
described in and consistent with the Scope of Development, the Site Plan attached as Attachment3,
and in accordance with the Schedule of Performance, the Approved Plans and all Governmental
Requirements, as further described below, including the Specific Plan, the Entitlements, the
Development Permits, the Memorandum of Agreement and the Federal Deeds.
Timing and Conditions of Project Development
8.2..
Pre-Closing Schedule and Schedule of Performance
8.2.1.. The Pre-Closing
Schedule sets forth the schedule for the period prior to the Close of Escrow. The Schedule of
Performance sets forth the post-closing schedule for submissions, approvals and actions, including
the design and development of the Project and construction of the Improvements. The Parties
acknowledge and agree that, subject to Section17.7.4, time is of the essence with respect to the
dates set forth in thePre-Closing Schedule and theSchedule of Performance. Following
conveyance of the Property to Developer, Developer shall promptly begin and thereafter diligently
prosecute to completion all steps required by the Schedule of Performance including design,
construction and development of the Improvements for the Project within the time specified in the
Schedule of Performance. Subject to Section17.7, the City may, in its sole discretion and upon
written request from Developer,
the Schedule of Performance. Any such agreed upon changes shall be within the limitations of the
Specific Plan, the Entitlements, the Development Permitsand all other Governmental
Requirements. To be effective, any extensions shall be requested in writing by Developer and
evidenced by written notice from the City Manager or designee.
Completion of Improvements
8.2.2.. Immediately after Close of Escrow,
Developer shall promptly begin and thereafterdiligently prosecute to Completion the
Improvements in accordance with the requirements of and within the time periods established by
this Agreement, including the Schedule of Performance, the Approved Plans, the Entitlements, the
Development Permits, theSpecific Plan, and all other Governmental Requirements, as well as all
requirements of private utility purveyors. Developer shall Complete the Improvements on or
before the date set forth for performance of such work in the Schedule of Performance.
License Agreement for Construction
8.2.3.. From and after the Initial
Satisfaction Date and provided that (a)all of the representations and warranties of Developer set
forth in Sections3.1and17.12.1(or in the case where the Merger or any other Transfer occurs
prior to the Close of Escrow, the representations and warranties made by the New Entity or
Transferee, as applicable, in the applicable Assignment Agreement) are true and correct as of such
Initial Satisfaction Date and (b)Developer has deposited with Escrow Holder the additional
Purchase Price Deposit amount described in Section4.3.1,Developer shall have the right, at its
sole cost and expense, and pursuant to alicense agreement to be entered into by and between the
City and Developer in substantiallythe form and substance of theLicense Agreement attached
License
hereto as Attachment22or as otherwise approved by each in its sole discretion
Agreement
, to enter upon the Development Parcels prior to the Close of Escrow for purposes of
carryingouttheHorizontal Improvements.Prior tothe effective date of the License Agreement
License Agreement Effective Date
, Developer shall, at its own expense, cause to be procured
and maintained the policies of insurance required pursuant to Section11.1. Specifically, Developer
shall obtain insurance meeting the requirements in Sections11.1.3and11.1.4[[1847,2801,1897,2858][12][,I,][Times New Roman]]; [[1876,2801,2300,2858][12][,,][Times New Roman]]provided
however,
that notwithstanding the provisions of Section11.1.4,the PLL policy may not contain exclusions
from coverage relating to unknownpre-existing conditionsand/or conditions that are discovered
during the Grading Work or construction of the Horizontal Improvements[[1807,358,1857,415][12][,I,][Times New Roman]]. [[1852,358,2093,415][12][,,][Times New Roman]]Developer [[2075,358,2300,415][12]
[,,][Times New Roman]]shall not
rely upon or have rights to claim for reimbursement, payment, or coverage under any pollution
legal liability insurance presently maintained by City. In addition, to the extent the contractor
performing the Grading Work and/orconstruction of theother Horizontal Improvements on behalf
of the Developer has or obtains a Contractor Pollution Liability policy with respect to the Grading
Workand the other Horizontal Improvements, Developer shall use commercially reasonable
efforts to have the contractor cause its policy tobe primary and the PLL policy to be
noncontributory with respect to matters covered bythe Contractor Pollution Liability policy.
Developer shall be responsible for all self-insured retention or deductible amounts due under the
PLL policy.
Development Flag
8.2.4..Unless otherwise agreed by the City in its sole
discretion, with respect to all Homes developed by Developer or any SuccessorOwner Controlled
by LennarCorporation,the registered seller shall utilizethed/b/a of
Land Use Matters
8.3..
Required Entitlements
8.3.1.. Developer shall, at its sole cost and expense,
process, obtain, and maintain all Entitlements to assure that the design, construction, use,
operation, maintenance, repair and replacement of the Improvements is carried out in accordance
with the provisions of this Agreement, and is permitted by the Entitlements and all other
Governmental Requirements. Development of the Project shall be subject to the following
Entitlement review processes of the City: [[1215,1658,1265,1715][12][,I,][Times New Roman]]( [[1231,1658,1303,1715][12][,,][Times New Roman]]a) [[1282,1658,1738,1715][12][,,][Times New
Roman]]the Design Review [[1714,1658,1925,1715][12][,,][Times New Roman]]approval [[1914,1658,2300,1715][12][,,][Times New Roman]](Design Review
application 2017-4;(b)Tentative Tract Map approval (Tentative Tract Map No 18125);and
(c)Development Agreement approval (application 2017-01)and any other approvals to the extent
required by the City Code to permit the uses contemplated in the Site Plan or Approved Plans.
Without limiting the foregoing, in developing and constructing the Project, Developer shall ensure
that the Project complies with all applicable development standards in the Specific Plan, the City
Code and with all building codes, landscaping, signage and parking requirements, except as may
be permitted through variances and modifications.
Development Permits
8.3.2.. Developer, at its sole cost and expense shall
process, obtain, and maintain all Development Permits required for the construction, use,
operation, maintenance, repair and replacement of the Improvements.
Agreement Does Not Grant Entitlements
8.3.3.. Nothing in this Agreement
shall be construed or interpreted as committing the City to approve or undertake any action or
review process or activities that require the independent exercise of discretion by the City in its
Governmental Capacity, including any approval of any Entitlement or Development Permit
application for which Developer applies after the Effective Date. This Agreement does not
(a)grant any land use entitlement to Developer, (b)supersede, nullify or amend any condition
which may be imposed by the City in its Governmental Capacity in connection with approval of
the Project, (c)guarantee to Developer or any other party any profits from the development of the
Property, or (d)amend any Governmental Requirements of the City. The issuance or approval of
any Entitlement not issued or approved on or prior to the Effective Date or any Development
Permit described in this Agreement shall be done by the City in its Governmental Capacity.
Nothing contained in this Agreement shall be deemed to waive the right of the City to act in its
Governmental Capacity with respect to the consideration and approval of the Entitlements and all
otherpermits, licenses and approvals requested by Developer from time to time in connection with
the Project nor shall it entitle Developer to any Entitlement, Development Permit or other City
approval necessary for the development of the Project, or to the waiver of any applicable City
requirements relating thereto, and the failure of the City to issue or approve any Entitlement
described in this Agreement, including to certify or approve any CEQA document, to approve any
tentative tract map, design review, conditional use permit or other Entitlement or Development
Permit shall not be a default of the City under this Agreement.
Cooperation of City
8.3.4.. Consistent with this Agreement, the City agrees,
without cost or other liability to the City or any commitmentof the City to approve or conditionally
approve any Entitlements required for the full implementation of this Agreement, to assist and
cooperate with Developer in its efforts to process the Entitlements and Development Permits. The
City will use good faith efforts to expedite review of applications for the Entitlements and the
Development Permits that are to be issued by the City and other submissions made by Developer
where reasonably appropriate in order to meet the deadlines set forth in the Schedule of
Performance and will assist and cooperate with Developer in its efforts to process such
Development Permits, Entitlements and other submissions.
CEQA Requirements
8.3.5.. The Parties acknowledge and agree that CEQA is
applicable to discretionary actions associated with the development of the Project.Developer
acknowledges that the City shall prepare any supplemental environmental information, if any, as
may need to be completed in order to effect compliance with CEQA, as determined by the City in
its sole discretion, and Developer shall be responsible to pay all costs incurred by the City to
prepare or to cause to its consultants to prepare such environmental documents and shall enter into
such agreements to pay such costs as the City shall require. Developer agrees to cooperate with
the City in obtaining information to determine the environmental impact of the Project, if any.
Entitlement Conditions
8.3.6.. Developer acknowledges and agrees that the City
in its Governmental Capacity may require satisfaction of certain conditions and dedication of
certain property in connection with approval of any Entitlements.
Payment of Fees
8.3.7.. Without limiting any other provision of this Agreement,
Developer shall pay (a)all fees, costs and deposits normally charged by the City or other
Governmental Authority in connection with application for and review and approval of
Development Permits and Entitlements, (b)any fees or costs incurred by the City or any other
Governmental Authority in complying with CEQA or the State CEQA implementing regulations;
(c)any costs to review or approve any Entitlement or Development Permit applications or
submittals by Developer to the City or any other Governmental Authority in connection with the
Project.
Design Approval
8.4..
Design Review
8.4.1.. It is understood and agreed to by Developer that the
quality, character and uses proposed for the Project are of particular importance to the City. In
furtherance of the development of the Project and the foregoing, the City, acting in its
Governmental Capacity, shall require Design Review approval as part of the Entitlements. In
addition, in its Proprietary Capacity as the current owner of the real property that is the subject of
this Agreement and of substantial portions of Tustin Legacy, the City will require review and
approval of the Basic Concept Plan for the Project as further set forth in this Section8.4. Review
of design documents by the City in its Proprietary Capacity only shall be subject to time periods
set forth below.
Plan Development and Cost
8.4.2.. All plans and specifications for the Project
requirements set forth in this Section8.
Process for Governmental Review
8.4.3.. The Parties acknowledge that the City
shallhave the right to review all plans, specifications and submissions, including any changes
therein, through its normal plan review and Entitlement process and that the City may exercise its
governmental discretion in its Governmental Capacity in review of any of the plans, specifications
and submissions. Within the timeframe shown in the Schedule of Performance, Developer shall
submit for approval by the City in its Governmental Capacity, final design drawings and related
documents conforming to the requirements of the City Code, the Specific Plan and all other
Entitlements and conditions of approval. The Community Development Department is authorized
pursuant to City Code to approve minor changes to building plans after approval by the City
provided such changes do not significantly reduce the quality of the development concept or the
design and materials to be used in enhancing the architecture and aesthetics of the Improvements.
Coordination
8.4.4.. Developer and the Project Architect shall meet with
representatives of the City to review and come to a clear understanding of the planning and design
criteria required by the City. During the preparation of all plans and specifications for the Project,
staff of the City and Developer shall hold regular progress meetings to coordinate the preparation,
submission and review of such plans. The staff of the City and Developer shall communicate and
submittals.
Proprietary Review
8.4.5.. Prior to the Effective Date, Developer has caused the
Basic Concept Planto be prepared and submitted to the City for approvaland the City has reviewed
and approved the Basic Concept Plan in its Proprietary Capacity, including with respect to
landscape plans, exterior elevations, exterior materials (including selections and colors) and the
size, and floor plans for all Homes and Buildings and the product mix. Developer acknowledges
sponsible for reviewing the
working drawings and issuing recommendations with respect to the appropriate Entitlementsand
has approved the Basic Concept Plan. In addition to its submittal of same to the Community
Development Department, Developer shall submit any modifications to the Basic Concept Planto
The exercise by the
documents for development of the Project: (a)
Capacity and not its Governmental Capacity; (b)shall not constitute an approval by the City of
any Entitlements;(c)shall not constitute a determination by the City of the engineering or
structural design, sufficiency or integrity of the improvements contemplated by such plans,
drawings and related documents, and (d)shall not constitute a determination by the City of the
compliance of such plans, drawings and related documents with any applicable building codes,
safety features and standards. Any inspection or approval of plans and drawings made or granted
pursuant to this Agreement shall not constitute an inspection or approval of the quality, adequacy
or suitability of such plans, specifications or drawings, nor of the labor, materials, services or
equipment to be furnished or supplied in connection therewith. Developer acknowledges and
agrees that the City in its Proprietary Capacity may approve or disapprovethe Basic Concept Plan
and design review plansand any modifications thereto
promote the sound development and redevelopment of land, to promote a high level of design that
will impact development surrounding the Project, and to provide an environment for the social,
economic and psychological growth and well-being of the citizens of the City and that the City is
not constrained or limited to act solely within its governmental discretion, authority, or capacity.
conditional approval, or failure to approve or disapprove theBasic Concept Planor any
modification thereto inits Proprietary Capacity.
Process for Proprietary Review
8.4.6.. If Developer desiresto modify the Basic
Concept Plan, Developer shall submit two sets of the modifications to the Basic Concept Planfor
the Improvements to the City. Such sets of theBasic Concept Planshall be submitted in writing
over the signature of Developer or a representative duly authorized by Developer in writing. If
the City approves such modifications, the City Manager or designee shall endorse its approval on
one set of such Basic Concept Planand return them to Developer. The City, in its Proprietary
Capacity only,shall conclusively be deemed to have disapprovedsuch modifications to the Basic
Concept Planunless,within
modifications, the City gives written notice of approval to Developer.Developer shall make
or deemed disapproval and resubmit such
Basic Concept Planto the City for review and approval in accordancewith the provisions of this
Section8.4.6)If the
City disapproves, or is deemed to have disapproved any proposed modification of the Basic
Concept Plan and such delay adversely
Performance which are impacted by the City delay
approval has been given to such modification.
Approved Plans
8.4.7.. Upon (a)approval by the City in its Governmental
Capacity of the Entitlements as described in this Section8,(b)approval by the City in its
Proprietary Capacity of the Basic Concept Plan under this Section8.4, and (c)approval of
construction level drawings by the City in its Governmental Capacity, then such approved plans
Approved Plans
on the Property. In addition to any other rights to approve or disapprove the construction level
drawings in its Governmental Capacity, the City may disapprove such documents in its Proprietary
Capacity if such documents are not consistent with the Entitlements and the Basic Concept Plan
previously approved, do not represent a logical or commercially reasonable implementation
thereof, and/or do not provide for construction of the same square footage as set forth therein.
Developer shall not construct any Improvements on the Property and shall not conduct any
Grading Work on the Property unless the same are shown in the Approved Plans or unless the prior
written consent of the City in its Proprietary Capacity and, if necessary, the approval of the City
in its Governmental Capacity are obtained to any modification thereof. To the extent of any
inconsistencies between the plans identified in the Scope of Development or the Site Plan and the
Approved Plans, the Approved Plans shall govern and control as to the development of the
Property.
Financial Status
8.5..
Financial Capability
8.5.1.. After the Close of Escrow, and thereafter until
issuance of the Certificate of Compliance, Developer shall continue to be responsible for
demonstrating to the City the financial capacity of Developer and the capability of Developer to
perform its obligations under this Agreement. In addition to the requirements set forth in
Sections4.6.1and4.6.2, during the period commencing on the Close of Escrow and ending on the
issuance of the Certificate of Compliance for the Project, Developer shall submit annually, on the
anniversary of the Closing Date, a date-down of the Financing Plan. If Developer is not a publicly
traded company, and if the City is not reasonably satisfied with the financial status of Developer
following review of the updated Financing Plan, the City shall be entitled to obtain the financial
information of other members, ownersand/or partners of the proposed development entity, if any,
and their respective members, partners, shareholders and/or other owners at each tier until
substantial assets acceptable to the City in its sole discretion are identified.
No Mortgage
8.5.2.
Section3.1(or, if applicable, any Assignment Agreement executed by Developer as Transferee),
Developer hereby waivesits rights:(a)to require or utilize third party financing with respect to
the acquisition of the Property or development of the Improvements on the Development Parcels
or any portion thereof prior to issuance of the Certificate of Compliance for the Project and (b)to
Transfer the Property or any portion thereof or to Transfer Control of Developer to a Mortgagee
or to record a Mortgage against the Property prior to the issuance of the Certificate of Compliance
unless otherwise agreed by the City in its sole discretion. The covenants of Developer pursuant to
this Section and the representations in Section3.1or any such Assignment Agreement represent
material consideration to the City.
Additional Information
8.5.3.. Developer understands and agrees that the City
reserves the right at any time to reasonably request in writing from Developer additional
information, including information, data and commitments,to ascertain the depth of the capability
and desire of Developer or other equity participants, to develop the Project expeditiously.
Guaranty
8.5.4.. Developer, on behalf of itself and each Successor Owner,
hereby agrees that any Guaranty provided pursuant to the requirements of this Agreement (or, if
applicable, any replacement Guaranty provided toand approved by the City pursuant to this
Agreement) shall not be amended, modified or terminated prior to issuance of a Certificate of
Compliance without the prior written consent of the City in its sole discretion.
Project Budget Statement
8.6..
Developer understands and agrees that the City reserves the right to reasonably request at
any time prior to the issuance of the Certificate of Compliance for the Project (but not more
frequentlythan quarterly) that Developer provide a Project Budget Statement. If requested by the
City, Developer shall submit such Project Budget Statement within thirty (30) calendar days
erefor and the expiration
of the applicable quarter. Notwithstanding the foregoing, the delivery of such Project Budget
Statement shall be for informational purposes only and in no event shall the City be entitled to
declare a Potential Default or Material Default, or exercise any of its remedies pursuant to this
Agreement, based on the contents of such Project Budget Statement absent an actual Potential
Default or Material Default under one of the other covenants or obligations of Developer set forth
in this Agreement. All Project Budget Statements submitted by Developer in response to request
by the City shall be subject to the confidentiality provisions set forth in Section4.6or
Section17.24.
District Fees and Other Fees and Exactions
8.7..
Developer Acknowledgements
8.7.1.. Developer acknowledges and agrees that:
(a)the development of the Project, together with the development of the remainder of Tustin
Legacy, will contribute to the need for Tustin Legacy backbone infrastructure located off of the
Development Parcels, including Tustin Legacy roadway improvements; traffic and circulation
mitigation to support the Tustin Legacy project; domestic and reclaimed water; sewer; telemetry;
storm drains and flood control channels; utilities backbone (electricity, gas, telephone, cable,
Tustin
Legacy Backbone Infrastructure Program
(b)theBasePurchase Price does not include
Developerfair share contribution to development by the City of the Tustin Legacy Backbone
Infrastructure Program on behalf of the Project, as further described below; (c)Developer has had
an opportunity to review the budgets, plans and projections developed by the City in connection
with the Tustin Legacy Backbone Infrastructure Program and the studies prepared by the City in
connection therewith; (d)there is an essential nexus between the imposition on the Project of the
Project Fair Share Contribution and a legitimate governmental interest; and (e)the Project Fair
Share Contribution is roughly proportional to and reasonably and rationally related to the impacts
that will be caused by development of the Project.
Project Fair Share Contribution
8.7.2..Developer is responsible to pay its fair
share of thecosts of theTustin Legacy Backbone Infrastructure Program. It is acknowledged that
the Base Purchase Price does not include the fair share contribution of Developer,which amount
due from Developerisagreed by the Parties to be equal to One Million Three Hundred Forty-One
Project Fair
Thousand One Hundred Forty-ThreeDollars and Zero Cents ($1,341,143)
Share Contribution
. Except as described above, no further obligation shall be imposed on
Developer in connection with the Project Fair Share Contribution or the Tustin Legacy Backbone
Infrastructure Program. Developer waives its right to fund all or any portion of such contribution
pursuant to a community facilities district, including pursuant to any special tax for the
development of facilities within the Tustin Legacy Backbone Infrastructure Program or pursuant
to other community facilities district. Developer acknowledges and agrees that its development
plan for the Project will not require use of community facility district proceeds and that neither
assessment district nor community facilities district proceeds will be used to reimburse Developer
for its Development Costs, including Project Fair Share Contribution or Project specific
infrastructure costs.Developer, on behalf of itself and itsSuccessor Owners,waives its right to
fund all or any portion of the development of the Project pursuant to a Community Facilities
District.
DistrictFormation
8.7.3.. Developer, on behalf of itself and itsSuccessor
Owners, agrees to theimposition of a community facilities district (the
District
. If established, the District shall be a tax and lien upon the Property in accordance with
the terms of theinstruments governing the District and the requirements ofthis Agreement.The
police and fire protection, ambulance and paramedic services, recreation programs and services,
street sweeping, traffic signal maintenance andthe maintenance of City-owned parks, parkways
and open spaces, lighting, flood control and storm drain services and other City services and
facilities at Tustin Legacy. Unless otherwise agreed by the City and Developer, each in its sole
discretion, the following shall apply to any District formed by the City:
(a)The term of component or any equivalent service
assessment District imposed upon the Development Parcels and theImprovements shall be
perpetual and shall not be time limited in any manner unless determined by the City in its
sole discretion.
(b)At the Closing Date, the annual property tax burden on each Home
including all general and special taxes and assessments from any existing assessment district
and assessments resulting from the District shall not exceed the amount shown on
Maximum Tax Burden Schedule
Attachment24Thereafter, taxes
and assessments imposed pursuant to any District may be adjusted upward at a rate of not
less thantwo percent (2%) per year and not more than four percent (4%) per year,subject
to and as further described in the rate and method of apportionment.
(c)Intentionally Omitted.
(d)At the solediscretion of the City,theDistrictmay be structured such
that assessments shall be due and payable with respect to the DevelopmentParcels without
consideration for whether or not Homes have been Completed thereon(i.e., such that all
Homes shall be assessed as improved or developedproperty); provided however, the
Districtassessment on unimproved land or undeveloped portions of the Property shall be at
an undeveloped property assessment rateof Zero Dollarsuntila date established by the City,
but in no event earlier than the commencement of the 2018/2019tax year.
(e)The City will provide Developer with the opportunity to review and
provide input on all documents and budgets relating to the formation of the District
(including any funding and acquisition agreement and the rate and method of allocating the
Districtassessments)at least thirty (30)calendar days prior to the date on which the
formation documents are expected to be submitted for the agenda package for the first public
hearing related to the formation of the District.
(f)The City and Developer agree that any Districtassessments are
imposed by the City in its Proprietary Capacity as seller under this Agreementand not in its
Governmental Capacity and that such assessments,shall additionally be a Public Benefit
(as such term is defined in the DA)under the DA made applicable to the Property and the
Improvements thereon and shall be a tax and lien upon the Property in accordance with the
terms of the instruments governing the Districtand the requirements of the DA.The
agreement of Developer to imposition of the Districton the terms set forth above and the
payment of such proceeds to the City constitutes additional and material consideration to
the City under this Agreement. In addition to the requirements in this Agreement, the
establishment of the Districtand assessments imposed thereby and the proceeds of any
bonds issued in connection therewith shall be payable to the City as Public Benefits under
the DA.In addition to the remedies imposed pursuant to this Agreement in favor of the
City, nothing herein shall restrict the right of the City to exercise its remedies under the DA
and to withhold buildingpermits with respect to the Project pursuant to the DA if Developer
fails totimely comply with its obligations withrespect to the District.
(g)Developer will not oppose a determination by the City to form the
District,includinga determination to subjectall or any portion of the Development Parcels
andthe Improvements thereon to such assessment,provided that the City, the Districtand
such assessments comply with clauses(b),(d)and(e)above.For the avoidance of doubt,
nothing in the foregoing shall prevent Developer from complying in all material respects
ons under federal securities laws (i.e., Developer shall
have the right to require that disclosures be included within offering memorandum or other
disclosure documents when such disclosures are intended to comply with federal securities
laws).
(h)The City shall not be prohibited by the terms of this Agreement from
subjecting the Development Parcels and the Improvements thereon to any increase in ad
valorem real property tax pursuant to a City of Tustin-wide election, provided that nothing
herein shall be construed to constitute a waiver by Developer of its right or ability to dispute
or oppose passage of a City of Tustin-wide bond, the proposed formation of any special
district or taxing authority in connection therewith, or the imposition of any such tax, or its
Master Marketing Program Fees
8.7.4.. Developer acknowledges that the City
(in its Proprietary Capacity) requires that all builders within Tustin Legacy contribute a master
marketing fee towards the marketing of Tustin Legacy by the City. In complete satisfaction of
such obligation by Developer, Developer shall pay to the City through Escrow Holder at the Close
of Escrow a one-time master marketing fee of Fifty Thousand Dollars ($50,000). The City
acknowledges and agrees that this payment shall satisfy all obligations of Developer to contribute
to the master marketing program or any future master marketing program for the Project and that
Developer shall have no additional obligations on account thereof after the payment of such fee at
the Close of Escrow.
Other Fees and Assessments
8.7.5.. Developer acknowledges and agrees that in
addition to City fees, fees may be imposed by other Governmental Authorities with jurisdiction
over the Project and/or the Property and payment of any such fees and assessments shall be at
Transportation System Improvement Area (TSIA) fee, state-mandated school impact fees,
community facilities districtsand issuance of school facility bondsby TUSD, Orange County
School Facility Bonds (Measure G and Measure L), utility meter and connection fees.
NoQuimby Act Feesor Park Fees
8.7.6..Except as set forth in this Agreement
or the Other Agreements, all fees and/or dedications required in connection with the Project
pursuant to the Quimby Act, California Government Code Section66477,are included within the
Project Fair Share Contribution and Developer shall not have any additional liability on account
thereof.
Final Map
8.8..
Priorto,and as a condition to Close of Escrow,City and Developer shall have entered into
the Subdivision Improvement Agreement. In addition, the Final Map shall be Recordedas a
condition to Close of Escrowunless otherwise permitted by Section7.1.3; provided thatifthe
Close of Escrow proceeds pursuant to such Section, Developer shall cause the Final Map to be
Recorded within six (6)months following the Close of Escrow.
Construction of Improvementsby Developer
8.9..
Horizontal Improvements
8.9.1.. Developer acknowledges and agrees that it
shall be responsible for design and construction of all local infrastructureto support the
development of theProject as further described in the Schedule of Performance and the Scope of
Development, includingthe Horizontal Improvements and thePhase Improvements.Developer
shall promptly obtain permits for the Grading Work and additional Horizontal Improvementsand
begin construction thereof and thereafter shall diligently prosecute such work to Completion in
accordance with and subject to this Agreement, including theSchedule of Performance,theScope
of Development, the Approved Plans, the Specific Plan, the Tentative Tract Mapand Entitlement
conditions, Development Permitsandany other Governmental Requirements.The Landscape
Improvements shall include vegetation of a type and amount as may reasonably be required to
maintain landscaping consistent with High Quality Residential Standards.
performance of theHorizontal Improvements, prior to the Close of Escrow, Developer shall
provide one or more Performance Bonds securing its obligations to construct theHorizontal
Improvements.
Phase Improvements.
8.9.2.The Project is currently anticipated to be
implemented in twenty-five(25) Phasesas depicted on Attachment26.Developer shall construct
the Phase Improvementsin accordance with this Agreement, including the Schedule of
Performance, the Scope of Development, Approved Plans, the Specific Plan, the Tentative Tract
Map, Entitlement conditions, Development Permits and any other Governmental Requirements.
The Phase Improvements, generallycomprising those infrastructure improvements and Common
Area Improvements tobe constructed within the Phase areas depicted on Attachment26,shall be
constructed sequentially by Phase; provided, however, theswimming pooland restroomsand
pedestrian access and landscaping related to such facilities, although comprisingPhase
Improvements for Phase 3B,shall be constructed concurrently with construction of the Horizontal
Improvementsas further described in the Schedule of Performance.For each Phase, Developer
shall commence with the components of the Phase Improvements comprising infrastructure
improvements.
Vertical Improvements
8.9.3.. Developer shall construct the Vertical
Improvements for residential purposes in accordance with this Agreement,including the Schedule
of Performance, the Scope of Development, the Approved Plans, theSpecific Plan, the Tentative
Tract Map, Entitlement conditions, Development Permitsand any other Governmental
Requirements.It is acknowledged that the Vertical Improvements shall be constructed sequentially
by Phase. Developer shall also comply with the following requirements with respect to its
development of the Vertical Improvements on the Development Parcels (collectively, the
Inventory Commitment
(a)Construction of Models. Commence construction of Modelson the
Development Parcels withintwelve(12)monthsfollowing the Close of Escrow and
Complete construction of and open Modelsto the public, eighteen (18)monthsfollowing
the Close of Escrow, provided that Force Majeure Delays with respect to the foregoing
shall not exceed twelve (12) months in the aggregate. Model Home construction on the
Development Parcels to consist of three (3)Model complexes (thirteen (13)Models)
consisting of the following: five (5) detached single family residences, five (5) motor
court flats and three (3) row townhomes),representative of Homes in each of the three
product types proposed to be constructed as part of the Project. The Modelcomplexes
shall be constructed and completed prior to completion of Homes within the first area of
the Property to be developed. Each Modelcomplex shall open to the public promptly
upon completion thereof and shall remain opento the public until such time that
Developer has sold ninety-five percent (95%) of the Homes of such product type within
the Property;
(b)Initial Product Inventory.Subject to extension for Force Majeure
Delay, Complete construction of initial production home inventory within nine(9)months
following Completion oftheModels.Initial product inventoryrequirement shallconsist
ofcompletion offraming and exteriors for not less five (5) row townhomes, ten (10)
stacked flats and six (6) detached (for a total of twenty-one (21)Homes) availablefor sale
in addition to the Models;
(c)Ongoing Inventory and Production Phase Requirements.Construct,
obtain valid certificates of occupancy and offer for sale the Homes in production phases
which are based upon a reasonable analysis of market conditions and anticipated
absorption and which otherwise are in conformance with the Schedule of Performance.
Taking into consideration the market conditions and anticipated absorption, use
commercially reasonable efforts to commence construction of each subsequent production
phase of Homes not later than the close of escrow on the last Home for sale to the public
in the prior production phase.
(d)Marketing.Conduct reasonable marketing efforts in conformance
m, to sell all of the Homes;
(e)Maximum Release.Except as may from time to time be
specifically agreed in writing bytheCity, Developer shall not release for sale to the public
(i)inany one sales releasemore than the following number of units by producttype:
(A)ten(10) Homescomprising stacked flats units; (B)twelve(12) Homes comprising
townhome units and (C)twelve(12) detached Homes, provided that each of theHomes
described in clauses (A),(B)and(C)above may be released concurrently, and (ii)a
second or later sales release of Homes within thirty (30) calendar days of the immediately
prior salesrelease.
Tustin Legacy Backbone Infrastructure Program
8.10..
The City Improvements are generally depicted on Attachment19and are anticipated upon
completionto provideanortherly accesspoint forthe Project.City shall use commercially
reasonable efforts,subject to availability of funds, to construct the City Improvements so as to
allow construction access to the Property by September 1, 2018[[1588,1478,1638,1535][12][,I,][Times New Roman]]. [[1615,1478,2300,1535][12][,,][Times New Roman]]City has approved the
plans for
the City Improvements and intends to obtain permitsandconstruct and complete the City
Improvements consistent with the foregoing schedule. Notwithstanding anything to the contrary
set forth in this Agreement, Developer acknowledges that such schedule is an estimate only and
failure of the City to commence or carry out the tasks described in this Section, or to complete
construction of the City Improvementswithin the time set forth aboveor at all orfor any reason
shall not be a Default by City under this Agreement.
Outside Date of Completion of Construction
8.11..
Notwithstanding any other provision of this Agreement, Developershall be obligated to
Complete the Project (including theHorizontal Improvements,Phase Improvements, Vertical
Improvementsand all of the Homes) within the earlier of (a)thirty six (36) monthsfollowing
opening of the Models to the public, as such date may be extended for a maximum total of nine
(9)monthsfollowing thethirty six (36) monthsfor Force Majeure Delay or (b)forty six (46)
months after Close of Escrow,provided that the foregoing period to Complete may be extended
for a maximum total of nine(9) monthsfollowing the fortysix (46) monthfor Force Majeure
Delay.
Development Covenants
8.12..
With respect to construction of the Improvements and the Project, Developer hereby
covenants and agrees as follows:
(a)Developer shall maintain throughout the term of this Agreement,
sufficient equity, capital and firm binding commitments for financing necessary to (i)pay
through Completion, all costs of development, construction, marketing, sale and/or leasing,
operation and management of all the Improvements as defined in the Scope of Development
without aMortgage; and (ii)enable Developer to perform and satisfy all the covenants of
Developer contained in this Agreement and the Special Restrictions. No Successor Owner
or successor and assign(but excluding any End Users)toInitial Developer shall undertake
any additional project if it could reasonably be expected to jeopardize the sufficiency of any
equity, capital and firm and binding commitments for the purposes expressed in the
preceding sentence.
(b)The development of the Project shall be done in a professional and
competent manner. Developershall perform all work required to construct and Complete
the Improvements and the Project and related work in accordance with the Approved Plans,
Entitlements, Development Permitsand all Governmental Requirements and at the level of
quality set forth inthe Scope of Development.
(c)Developer shall be responsible for the timeliness and quality of all
work performed and materials and equipment furnished in connection with the Project,
whether the work, materials and equipment are performed and furnished by Developer or
through contractors, subcontractors (of all tiers) and suppliers.
(d)Developer shall not place, or allow to be placed, on its interests in the
Property, Improvements, or any portion thereof, any Mortgage or encumbrance of lien,
including any ConstructionLien,not authorized by this Agreement.
(e)Developer shall, within thirty (30) calendar days following receipt of
notice thereof, cause to be removed or bonded against (such bonding to be by the provision
of bonds satisfying California statutory req
notices and/or bonded stop notices that are recorded and/or served by contractors,
subcontractors (of all tiers) and suppliers in connection with the Projectincluding
construction of Improvements on the Property and on adjoining City-owned property or
performance of other workby Developerin connection
therewith, including conducting investigations or causing the foregoing to be carried out
Construction Liens
Notwithstanding the foregoing, Developer may contest the
amount, validity or application, in whole or in part, of any Construction Liens; subject to
the further requirement that neither the Property nor any Improvements nor any part or
interest in either thereof would be in any danger of being sold, forfeited, attached or lost
pending the outcome of such proceedings. If any such contest is finally resolved against
Developer, Developer shall promptly pay the amount required to be paid, together with all
interest and penalties accrued thereon. Developer hereby agrees to indemnify, defend(and
hold the City Indemnified Parties free and harmless from and against any and all Claims
arising from failure to pay for construction of Improvements or other work related to the
Project including costs to remove or bondany Construction Liens. Subject to Section9.7
of this Agreement, the indemnity set forth in this Section shall survive the termination of
this Agreement.
(f)Subject to Sections8.2.1and17.7,Developer shall, following the
Close of Escrow, commence the development of the Project promptly and shall diligently
pursue to Completion and shall Complete development of the Project and the Improvements
in accordance with the time periods in the Schedule of Performance and,in all events, on or
before the dates set forth for Completion of the Project set forth in the Schedule of
Performance.
(g)Prior to or concurrently with its submittal to BRE of any
Condominium Planand following BRE approval of any such Condominium Planand prior
to Recording thereof, Developer shall submit to the City each such Condominium Planfor
approval by the City, provided that the approval of the City shall be limited to confirming
that the number of Homes shown for each Phase on the proposed Condominium Planare
consistent with the Approved Plans, as the same may have been amended from time to time
with the approval of the City in its Governmental Capacity and its Proprietary Capacity.
City Rights of Access
8.13..
In addition to any rights it may have in its Governmental Capacity, representatives of the
City shall have the reasonable right of access to all portions of theProperty and the Improvements
(other than Improvements owned by Homebuyers), without charges or fees, at normal construction
hours during the period of construction for the purposes of this Agreement, including the
inspection of the work being performed in constructing the Improvements. The City agrees to
indemnify, defend and hold Developer harmless for any and all Claims, arising out of any such
non-governmental inspection or other activity on theProperty, the Improvements or the Project by
the City, or its agents, employees or contractors permitted pursuant to this Section8.13, except to
the extent caused by the gross negligence or willful misconduct of Developer.
Disclaimer of Responsibility by City and Exculpation
8.14..
Disclaimer of Responsibility
8.14.1.. The City neither undertakes nor assumes
nor will have any responsibility or duty to Developer, any Successor Owner, anyEnd Useror to
any other third party to review, inspect, supervise, pass judgment upon or inform Developer, any
Successor Owner, any End Useror any third party of any matter in connection with the
development or construction of Improvementsor the approval of any maps, including
Condominium Plan, whether regarding the quality, adequacy or suitability of the plans, any labor,
service, equipment or material furnished for development of the Project, any Person furnishing
same, or otherwise. Developer, any Successor Owner, End Userand all third parties shall rely
upon its or their own judgment regarding such matters, and any review, inspection, supervision,
exercise of judgment or information supplied to Developer, any Successor Owner, End Useror to
any third party by the City in connection with such matter is for the public purpose of developing
the Project, and neither Developer nor any Successor Owner, End Usernor any third party is
entitled to rely thereon.
Exculpation
8.14.2.. The City shall not be liable in damages to Developer or to
any owner, lessee, any licensee or other Person, on account of (a)any approvals or disapprovals
by the City, including by the City Manager or designee,whether made in the Governmental
Capacity or Proprietary Capacity of the City of any design documentsor maps,in connection with
the Project, the Horizontal Improvements, the Vertical Improvements, the Phase Improvementsor
any Condominium Plan, including the Approved Plans, any Basic Concept Planand grading plans
with respect to the foregoing, whether or not defective or whether or not in compliance with
applicable laws or ordinances; (b)any construction, performance or nonperformance by Developer
or any owner, lessee, licensee or other Person of any work on the Propertyor the Improvements,
whether or not pursuant to Approved Plans or whether or not in compliance with applicable laws
or ordinances; (c)any mistake in judgment, negligence, action or omission in exercising its rights,
powers and responsibilities hereunder; and/or(d)the enforcement or failure to enforce any of the
provisions of this Agreement. Every Person who makes design submittals for approval agrees by
reason of such submittal, and Developer and every Successor Owner of the Property or the
Improvements or any portion thereof agrees by acquiring title thereto or an interest therein, not to
bring any suit or action against the City seeking to recover any such damages and expressly waives
any such claim or cause of action for such damages which it would otherwise be entitled to assert.
The review of any design submittals shall not constitute the assumption of any responsibility by,
or impose any liability upon, the City as to the accuracy, efficacy, sufficiency or legality thereof
nor decrease or diminish any liability, duties, responsibilities, or obligations of Developer under
this Agreement or otherwise.
City Responsibility
8.14.3..Nothing in this Section8.14
express representations, warranties, covenants and obligations set forth in this Agreement and the
Other Agreements.
No Supervision or Control
8.14.4.. The City (whether acting in its Governmental
Capacity or its Proprietary Capacity) does not have any right, and hereby expressly disclaims any
right, of supervision or control over the architects, designers, engineers or persons responsible for
drafting or formulating of the plans, drawings and related documents of Developer.
Survival
8.14.5..The provisions of this Section8.14shall survive the termination
of this Agreement.
Local, State and FederalLaws
8.15..
Developer shall carry out the construction of the Project, including all Improvements,
subject to Section8.1.4and in conformity with all Governmental Requirements (subject to
Section1.6of this Agreement) including all applicable federal and State labor laws and regulations
and shall investigate the applicability of and, if and to the extent applicable, pay prevailing wages
meeting the requirements of such laws and regulations; provided that Developer reserves the right
to reasonably contest such laws and regulations. Developer hereby agrees that, with respect to the
Project, Developer shall be fully responsible for determining whether the foregoing wage
requirements are applicable and agrees to indemnify, defend and hold the City and its elected and
appointed officials, employees, agents, attorneys, affiliates, representatives, contractors,
successors and assignsfree and harmless from and against any and all Claims arising from or
ctors, employees, agents,
representatives, consultants and/or contractors (at every tier) in construction of the Project with
the prevailing wage requirements imposed by any applicable federal and State labor laws. The
indemnity set forth in this Section shall survive the termination of this Agreement.
Liens, Taxes and Assessments
8.16..
Developer shall pay prior to delinquency all real estate taxes and assessments assessed and
levied on or against all portions of the Property or the Improvementsduringtheperiod of
ownershipthereof by Developer. Developer shall not place, or allow to be placed, on its interests
in the Property, or any Lotor Home, or any portion thereof, any Mortgage or encumbrance of lien
not authorized by this Agreement. Developer shall remove, or shall have removed, any levy or
attachment made on itsinterests in the Property or the Improvements (or any portion thereof), or
shall assure the satisfaction thereof within thirty (30) calendar days following receipt of notice
thereof. Except as set forth in Section8.7.2and Section8.7.3(g), nothing contained in this
Agreement shall be deemed to prohibit Developer from contesting the validity or amount of any
tax or assessmentor to limit the remedies available to Developer in respectthereto.Developer
hereby agrees to indemnify, defend and hold the City and its elected and appointed officials,
employees, agents, attorneys, affiliates, representatives, contractors, successors and assignsfree
and harmless from and against any and allClaims arising with respect to payment of liens, taxes
and assessments assessed or levied against the Property and/orthe Improvements during the period
of ownership thereof by Developer. Theindemnity set forth in this Section shall survive the
termination of this Agreement.
City Additional Covenants
8.17..
Dedication and Completion of MoffettDrive
8.17.1.. Promptly following
completion of construction of Moffett Drive in the vicinity of the Project, the City shall properly
dedicate such road as apublic roadway.
Third Party Licenses
8.17.2.. At no cost to the City, the City shall assist and
cooperate with Developer to obtain from other Persons (including IRWD and the City of Irvine)
any licenses or entry permits necessary or reasonably desirable in conn
development of the Horizontal Improvements.
Release Language
8.17.3.. In connection with its sale of property at Tustin Legacy
for purposes of construction and sale of Homes, the City shall use commercially reasonable efforts
to incorporate in each disposition and development agreement and quitclaim deed or other
recorded document, release provisions substantially similar to those set forth in
Section4.5.2(f)and the Quitclaim Deed. Thefailure of the City to do so shall not relieve
Developerorany Successor Owner of its obligations to include the release provisions infuture
deedsto Homebuyers pursuant to the Quitclaim Deed.
TUSD Agreement
8.17.4..TUSD has informed the City that TUSD will accept an
advance payment from the proceeds of the sale of the Propertyto allow early payoff of the sums
TUSD CFD
due for the Property pursuant totheexisting TUSD CFD 15-. City shall use
good faith efforts to enter into the TUSD Agreementwith TUSD and if such TUSD Agreement is
entered into, the City shall use good faith efforts to cause TUSD to either remove the lien of the
TUSD CFD atthe Close of Escrowor to otherwise demonstrate that the TUSD CFD is paid in full
as to the Property, as further discussed in Section7.1.1.
Certificate of Compliance
9..
Completion; Schedule of Performance
9.1..
Subject to Section17.7, following the Close of Escrow, Developer shall construct the
Project and shall satisfy all Conditions Precedent relating to issuance of the Certificate of
Compliance for the Project when and as required by this Agreement in accordance with the
Schedule of Performance.
Certificate of Compliance Defined
9.2..
After Completion of all construction and development required to be undertaken by
Developer in conformity with this Agreement and in accordance with the Schedule of Performance
and the satisfaction by Developer of the Conditions Precedent set forth in Section9.3, the City
shall deliver to Developer or Successor Owner owning fee title to the Development Parcels a
Certificate of Compliance
be substantially in the form and substance of the Certificate of Compliance set forth on
Attachment15and in such form as to permit the Certificate of Compliance to be Recordedagainst
the entirety of the Property. Developer, on behalf of itself, each Successor Owner,and each and
every Person claiming by, through or under Developer or any Successor Owner,includingeach
End User, hereby consents to the recordation of the Certificate of Compliance against the entirety
of the Property, notwithstanding that portions orall of the Property may have been transferred
prior thereto to Successor Ownersor End Usersand confirms that no further acknowledgement or
consent by the then-owners of the Property shall be required in connection with such Recordation.
The Certificate of Compliance shall state the actual number of units constructed on the Property
as of the date of issuance thereof, and such unit count shall establish the actual number of units
allocated to the Developer by the City pursuant to Section4.1(a)(iii).
Conditions Precedent for Certificate of Compliance
9.3..
The City shall not be obligated to issue the Certificate of Compliance for the Project, unless
and until each of the following has occurred:
(a)Completion of the Improvementsand satisfactionof the obligations
of Developer under theLicense Agreement.
(b)Final inspection of the Development Parcels and the Improvements
by or on behalf of the City and determination by the City that the Project and all
Improvements have been Completed in conformancewith this Agreement, including the
Approved Plans and all Governmental Requirements;
(c)Issuance of the final certificate of occupancy by the City for all two
hundred and eighteen (218)Homes within the Projector such lesser number of Homes as
are shown on Approved Plans for the Project;
(d)Written release or bonding in accordance with California law of all
Construction Liens or rights to record liens from the general contractor and all
subcontractors(at all tiers)having served valid preliminary 20-day notices, and the statutory
period for filing liens having expiredwithout any such Construction Liens being filed;
(e)Recordation of the CC&Rs against the Development Parcels and with
respect to those Lotsor portions thereofowned by Developer or the H
Association
Compliance, confirmation thatall liensof record as of the date of the request for the
Certificate of Compliance are junior andsubordinate to the Recorded CC&Rs;
(f)Payment of the Interim Payment (as defined in the Profit
Participation Agreement) required by the Profit Participation Agreement in an amount equal
to 75% of the Estimated Total Profit Participation (as defined in the Profit Participation
Agreement) and (b)a payment bond in an amount equal to 25% of the Estimated Total Profit
Participation from a surety reasonable acceptable to City, and in form reasonably acceptable
;
(g)Payment by Developer to the City of all funds then owing to the City
under this Agreement and, if applicable, the Other Agreements; and
(h)No Potential Default or Material Default by Developer under this
Agreement or the Other Agreements shall have occurred and be continuing.
Conclusive Presumption
9.4..
The Certificate of Compliance shall be, and shall so state, conclusive determination of
satisfactory completion of the obligations of Developer pursuant to this Agreement.
Not Evidence
9.5..
Issuance by the City of a Certificate of Compliance is not notice of completion as referred
to in Section8182of the California Civil Code.
City Obligations
9.6..
The City shall not unreasonably withhold or delay issuance of the Certificate of
Compliance. If the City refuses or fails to issue such Certificate of Compliance after written
request from Developer, provided each of the conditions established in Section9.3have been
satisfied, the City shall, within fifteen (15) Business Days of the written request, provide a written
statement which details the reasons the City refused or failed to issue the Certificate of
Compliance. The statement shall also contain a statement of the actions that Developer must take
to obtain the Certificate of Compliance.The City shall cause the Certificate of Compliance to be
Recorded within five (5) Business Days after issuance.
Effect of Certificate of Compliance; Termination of Agreement
9.7..
After the Recording of the Certificate of Compliance, except as set forth below, the
DDA shall terminate and any Person then owning or thereafter purchasing, leasing, or otherwise
acquiring any interest in the Development Parcels subject to the Certificate of Compliance shall
not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability
under this Agreement with respect to such Improvements, except that theQuitclaim Deed, the
Profit Participation Agreement, the Special Restrictions, the CC&Rs,and the Landscape
Maintenance Agreement shall each remain in effect for the term specified therein. Issuance of the
Certificate of Compliance shall not waive any rights or claimsthat the City may have against any
Personfor latent or patent defects in design, construction or similar matters under any applicable
to this Agreement. The Certificate of Compliance shall be in such form as to permit it to be
Recorded. Upon execution and Recording by the City of the Certificate of Compliance, this
Agreement shall terminate, except that:
(a)the provisions of Sections4.5.2and8.14, including the releasesset
forth therein, as andto the extent set forth in the Quitclaim Deed shall survive in perpetuity,
shall run with the land and shall be binding upon Developer, its successors and assigns and
its Successor Owners, as well asHomebuyers and other End Users;
(b)the provisions of Section11.1.4shall survive until the expiration of
the time period for provision of the environmental insurance policy described thereby;and
the obligation to provide such insurance policy shall remain in effect for a period of ten (10)
years from Close of Escrow and shall (i) continue to run with the land owned by Developer,
its successors andassignsand Successor Owners,and not then conveyed to any Homebuyer
or other End User,and (ii) bind Developer, its successors and assignsand Successor Owners
and each and every prior Developer not released by the City pursuant to Section2.2.3(c),
provided that upon sale or transfer to any Homebuyer or any other End User, such obligation
shall not run with the land or survive with respect to or bind any such Homebuyer or End
User or any of their respective successors and assigns;
(c)the indemnities set forth in Sections5.5,8.12(e),8.15,8.16, 10.1,
10.2and17.12.1shall remain in effect as and to the extent set forth in Section10.3and shall
bind the Personsbound as set forth therein;
(d)any and all obligations contained in the Federal Deedsshall survive
in perpetuity to the extent set forth therein, unless such obligations are released by the
Federal Government;
(e)neither Developer, its successors and assigns (but excluding any End
Users) orany Successor Owner shall modify or terminate any prepaid environmental
insurance policy in effect as of the issuance of the Certificate of Compliance; and
(f)the provisions of Section11.1.1requiring liability insurance to be
maintained in full force and effect until issuance of the Certificate of Compliance and so
long thereafter as necessary to cover any claims of damages suffered by persons or property
prior to issuance of the Certificateof Compliance, resulting from any acts or omissions of
ltants or other
related parties, shall (A) continue to run with the land owned by Developer,its successors
and assigns(excluding any End Users)andSuccessor Owners and not then conveyed to any
Homebuyer or other End User and (B) bind Developer and its successors and assigns
(excluding any End Users) andSuccessor Owners and each and every prior Developer not
released by the City pursuant to Section2.2.3(c), provided that upon sale or transfer to any
Homebuyer or any other End User, such obligation shall not run with the land or survive
with respect to or bind any such Homebuyer or any other End User or any of their respective
successors and assigns.
Notwithstanding anything to the contrary set forth in this Agreement, the provisionsof this
Section9.7shall survive the termination of this Agreement and theexecution andRecording by
the City of the Certificate of Compliance andshall be binding uponDeveloper, itssuccessors and
assigns and Successor Ownersand each and every prior Developer (unless released by the City
pursuant to Section2.2.3(c)orSection16.6)and Successor Ownerthereof,the Development
Parcels and the Improvementsfor the term set forth above,and each such party shall be jointly and
severally liable under such provisions with respect to the entirety of the Project, the Development
Parcels and the Improvementsfor the term set forth above,but except asset forth inclause(a)of
this Section or as set forth in the Quitclaim Deed, shall not be binding on any Homebuyer or other
End User.
Indemnification and Environmental Provisions
10..
10.1..
As a material part of the consideration for this Agreement, effective upon Close of Escrow,
and to the maximum extent permitted by law, Developer shall indemnify, protect, defend, assume
all responsibility for and hold harmless theCity Indemnified Parties, from and against any and all
Claims tothe extent caused by the following:
(a)
(b)All acts and omissions of Developer in connection with the Project,
the Property, the Improvements or any portion of any of the foregoing;
(c)Any plans or designs for Improvements prepared by or on behalf of
Developer, including any errors or omissions with respect to such plans or designs;
(d)Any loss or damage to the City resulting from any inaccuracy in or
breach of any representation or warranty of Developer, or resulting from any Default,
including Material Default, by Developer, under this Agreement;
(e)the non-performance or breach by Developer or the Developer
Representatives, of any term or condition of this Agreement; or
(f)Any development or construction of Improvementsor other
structures or facilities
quality, adequacy or suitability of any labor, service, equipment or material furnished to the
Property, any Person furnishing the same, orotherwise.
Notwithstanding anything to the contrary set forth in this Section10.1, the foregoing
indemnities shall not apply to and Developer shall not be obligated to indemnify any of the City
Indemnified Parties with respect to the foregoing to the extent such Claims are a result of: (i)any
breach of any covenant or representation or warranty by City under this Agreement, (ii)the gross
negligence, willful misconduct or fraud of City or any City Indemnified Party; or (iii)any other
Claims against the City relating to or arising out of tort Claims brought by third parties against
Developer, to the extent such claims are based upon the Active Negligence of the City or any City
Indemnified Party and Accruingprior to the Close of Escrow.This indemnity shall remain in
effect for the period specified in Section10.3and shall be subject to the other terms set forth
therein.
Environmental Indemnity
10.2..
As a material part of the consideration for this Agreement, and effective as of the Close of
Escrow,Developer on behalf of itself and Successor Owners and each and every Person claiming
by, through or under Developer or any Successor Owner, hereby agrees that Developer and each
Successor Owner shall, to the maximum extent permitted by law, indemnify, protect, defend,
assume all responsibility for and hold harmless the City Indemnified Parties from and against any
and all Claims resulting or arising from or in any way connected with the existence, Release,
threatened Release, presence, storage, treatment, transportation and/or disposal of any Hazardous
Materials on, inorunder the Property, or migrating from the Property to adjacent properties
regardless whether any such condition is known or unknown now or upon acquisition and
regardless of whether any such condition pre-exists acquisition or is subsequently caused, created
or occurring; provided that neither Developer nor any Successor Owner shall be responsible (and
such indemnity shall not apply) to the extentof(a)any breach of any covenant or representation
or warranty by City under this Agreement;(b)the gross negligence, willful misconduct or fraud
of City or any City Indemnified Party;or(c)to the extent of the Active Negligence or willful
contractorsor consultants with respect to
Hazardous Materials occurring prior to the Close of Escrowwith respect to work performed by
such Persons on the Development Parcels.This indemnity shall remain in effect for the period
specified in Section10.3andshall besubject to the other terms set forth therein. This indemnity
shall not be deemed to limit in any manner the rights and/or remedies thatCity,Developer or
Successor Owners may have against the Federal Governmentas described in Section4.1.
Duration of Indemnities
10.3..
Theindemnities set forth inSections5.5,8.12(e),8.15,8.16,10.1,10.2and17.12.1shall
run with the landand shall bindDeveloper, its successor and assigns and each and every Successor
Owner, shallsurvive the Close of Escrow and the execution and Recordingby the Cityof the
Certificate of Compliance and shall not merge into the Quitclaim Deed;provided however that
upon sale or transfer of the fee interest in the Development Parcels or any portion thereof to an
End User, such indemnities shall terminate as to such End User and shall cease to run with the
land acquired by such End User or any of their respective successors and assigns. Notwithstanding
the foregoing, the obligations of Developer withrespect to each of theindemnities set forth in
Sections5.5,8.12(e),8.15,8.16,10.1,10.2and17.12.1shall(a)survive the Close of Escrow and
shallnot merge into the Quitclaim Deed;(b)survive the sale of land to each End User and the
issuance of the CertificateofCompliance;and (c)until the date that is ten (10) years following
issuance of the Certificate of Compliance, continue to bebinding upon Developer
successorsand assigns and each and every prior Developer not released by the City pursuant to
Section2.2.3(c)and each such party shall be jointly and severally liable under such provisions
with respect to the entirety of the Project and the Property,but shall not be binding on any End
User. Notwithstanding the foregoing, ifany portion of the Property issubject to revesting or
repurchase by the City, as to such portion of the Property the foregoing indemnity shall apply only
to the extent set forth in Section16.6.The provisions of Sections10.1,10.2and10.3shall survive
the termination of this Agreement.
Claim Response
10.4..
In the event that following the Close of Escrow, any Environmental Agency or other third
party brings, makes, alleges, or asserts a Claim, arising from or related to any actual, threatened,
or suspected Release of Hazardous Materials on or about the Property, including any Claim for
Investigation or Remediation on the Property, or such Environmental Agency or other third party
orders, demands, or otherwise requires that any Investigation or Remediation be conducted on the
Property, Developer shall promptly upon its receipt of notice thereof, notify the City in writing
and thereafter shall promptly and responsibly evaluate and respond to such Claim as provided in
Section10.5. Further, upon receipt of such Claim, order, demand or requirement, Developer shall
take such reasonable measures, as necessary or appropriate, to reasonably dissuade such
Environmental Agency or other third party frombringing, making, alleging, or asserting any Claim
against the City arising from or related to any actual, threatened, or suspected Release of
Hazardous Material on or about the Property, including any Claim for Investigation or
Remediation on the Property; provided that such obligation shall not apply to those excluded
Claims set forth as (a)through (c)ofSection10.2.
Release Notification and Remedial Actions
10.5..
If, after Close of Escrow, any Release of a Hazardous Material is discovered on the
Property,Developershall promptly provide written notice (or in the event of emergency,
telephonic notice, followed by written notice) of any such Release to the City. To the extent that
any Environmental Agency (other than the City) is requiring that the City Remediate such Release
and Developer acknowledges that it is obligated to assume responsibility or indemnify the City
with respect to such Release pursuant to Section10.2or there is a good faith dispute between the
City and Developer as to whether Developer is obligated to assume responsibility or indemnify
the City with respect to such Release pursuant to Section10.2, thenDeveloper shall (a)Remediate
the Release in compliance with and to the extent required by Environmental Laws and such
Environmental Agency, or if such removal is prohibited by any Environmental Laws, take
whatever action is required by any Environmental Law and such Environmental Agency; (b)take
suchother reasonable action as is necessary to have the full use and benefit of the Property as
contemplated by this Agreement; and (c)provide the City with satisfactory evidence of the actions
taken as required in this Section. To the extent that any Environmental Agency (other than the
City) is requiring that the City Remediate such Release and the City acknowledges that Developer
is not obligated to assume responsibility or indemnify the City with respect to such Release
pursuant to Section10.2or no Environmental Agency (other than the City) is requiring that the
City Remediate such Release, then (as between Developer and the City under this Agreement)
Developer may elect in its sole and absolute discretion whether to Remediate such Release and/or
pursueany rights that Developer has against any Person (including the Federal Government and
the City) with respect to such Release. The foregoing shall be without prejudice to Developer
al Government pursuant to
the Navy Responsibilities and without compromising the applicability of any insurance coverage
in regard to such Release. The City and Developerwill coordinate any action required under this
Section10.5with appropriate environmental insurance carriers so as not to compromise coverage
for the costs of such actions. Nothing set forth herein requires Developer to perform any obligation
of the Federal Government and nothing set forth herein shall be deemed to limit or impair (or take
any action that might limit or impair) in any manner the rights and/or remedies that Developeror
theCity may have against the Federal Government or any other third party.The foregoing shall
not apply to the Returned Property after acquisition thereofby the City.
Conflict with Section 330 and Other Federal Government Obligations
10.6..
Notwithstanding anything to the contrary contained in this Section10, in the event that any
actions required to be taken by Developer pursuant to this Section10could potentially result in
Developer losing rights, or are contrary to any rights, which it otherwise would have pursuant to
the Navy Responsibilities or otherwise against the Federal Government, then the City and
Developer shall meet in order to determine the proper course of action to be taken by Developer.
Legacy, while retaining for Developer its rights pursuant to the Navy Responsibilities or otherwise
against the Federal Government to the maximum extent reasonable under the circumstances.
Notwithstanding the foregoing, nothing set forth in this Section10.6relieves Developer or its
Transferees orSuccessor Owners with respect to theenvironmental responsibilities and obligations
and/orenvironmental indemnification ofDeveloper to the City in this Agreement.
Insurance and Indemnification
10.7..
Notwithstanding anything contained herein and without limiting or relieving Developer of
its obligations to indemnify, defend and hold harmless the City Indemnified Parties under this
Agreement, the City agrees that with respect to any Claims tendered by any one or more of the
City Indemnified Parties under this Agreement for which Developer has the obligation to
indemnify the City pursuant to the terms of this Agreement, the City Indemnified Parties shall,to
the extent such insurance could reasonably be determined to be applicable to the type, extent, value
and/or location of the Claim being made,tender such Claim concurrently with the insurer with
respect to the environmental insurance policy required pursuant to Section11.1.4of this
Agreement and shall thereafter use reasonable commercial efforts to prosecute its Claim for
coverage with such insurer.To the extent that insurance is determined by the City not to be
reasonably applicable to the Claim or, if after six months, despite such efforts, insurance proceeds
are not available to cover all or a portion of the Claim or if such Claim is earlier denied by the
insurance carrier, Developer shall promptly pay to the City Indemnified Parties the Claim amounts
not then covered by the environmental insurancepolicy. Developer shall assist and cooperate with
the City in its tender of Claims as required by this Section and shall pay in accordance with the
indemnity obligations of Developer, all staff and third-party costs incurred by the City pursuant to
this Section.
Selection of Counseland Defense Obligations
10.8..
Defending Party
AParty that has an obligation to defend any other Party shall be
deemed to satisfy its defense obligations under this Agreement (where applicable) by assigning
counselofits choice and reasonably acceptable to the other Party, including with all the same
attorneys, paralegals, consultants, experts, vendors and others who are defending the Defending
Party, subject to the right of theindemnified Party, the City, City Indemnified Parties, the
Developeror the Developer Representativesentitled to defense, or any of them, as applicable (the
Defended Party
to have separate counsel in the eventthat such counsel would be provided
Counsel
under cumis counsel standards applicable in the State. If during any
action in which Defending Party has defended the Defended Party, any Defended Partydetermines,
in its reasonable discretion, that separate counsel should be provided under cumis counsel
standards applicable in the State, Defending Party shall thereafter, at its own expense and through
separate counsel designated by DefendedParty and reasonably acceptable to the DefendingParty,
defend such Defended Party in such action, and the original Counsel shall continue to represent
Defending Party in that action.Each Defended Party agrees to promptly notify Defending Party
of any Claim or Action filed against the DefendedParty and to cooperate in the defense of any
such action.Failure of the Defended Party to notify the Defending Party promptly of the filing of
any Claim or Action shall offset the indemnification obligations of the Defending Party only to
the extent of any prejudice to the Defended Party caused by such failure to notify. The City retains
the option to select and employ independent defense counsel at its own expense. If both Parties
elect to defend, the Parties hereby agree to affirmatively cooperate in defending said action and to
execute a joint defense and confidentiality agreement in order to share and protect information,
under the joint defense privilege recognized under applicable law. As part of the cooperation in
defending an action, the City and Developershall coordinate their defense in order to make the
most efficient use of legal counsel and to share and protect information.
SettlementProcedures
10.9..
Except as described in this Section, neither Party shall settle any Claim or Action that is
the subject of an indemnity or obligation to defend under this Agreementwithout thepriorwritten
consent of theother Party, which consent shall not be unreasonably withheld, conditioned or
delayed. Withholding consent to a settlement proposal shall not be deemed to be unreasonable if
a settlement proposal results in an adverse impact to thePartywithholding consent; provided that
if the Defending Party presents a resolution of a whole Action, or of aclearly severable portion of
any Action,under which Defended Party has no adverse economic impact and Defended Party
declines to approve the settlement, then as to such Actions or portions of Actionsonly, the
Defended Party thereafter shall be required to defenditselfin such Action or portion of the Action
at its sole costand the liability of the Defending Party shall be capped at the proposed settlement
amount and attorneysfees incurred by the Defended Party prior to the date of the settlement offer.
Notwithstanding anything to the contrary in this Agreement, aDefending Party shall have no
obligation to indemnify any Defended Party for any settlement reached without DefendingPartys
consent; provided, however, that in the event Defending Party fails to satisfy its defense
obligations under this Agreement, any Defended Party shall have the right to settle any indemnified
Claims and Defending Party shall be bound by such settlement and obligated to pay all defense
and settlement costs associated therewith.
Insurance
11..
Required Insurance
11.1..
maintain, at its own cost and expense, and furnish or cause to be furnished to the City, evidence of
the following policies ofinsurance (complying with the requirements set forth below) naming
Developer as insured and, with respect to the general liability and environmental liability insurance
required pursuant to Sections11.1.1and11.1.4only, the City as additional insured. All insurance
required below shall be kept in force with respect to each such component of the Property, the
Projectand/or the Improvementsuntil issuance of the Certificate of Compliance with respect
thereto or for such longer period as is described below.
Liability Insurance
11.1.1.. Commencing upon the Effective Date, Developer
shall maintain or cause to be maintained commercial general liability insurance, to protect against
loss from liability imposed by law for damages on account of personal injury, including death
therefrom, suffered or alleged to be suffered by any Person or Persons whomsoever on or about
the Property, the Projectand/or the Improvementsand the business of Developer on the Property,
or in connection with the operation thereof, resultingdirectly or indirectly from any acts or
activities of Developer or anyone directly or indirectly employed or contracted with or acting for
Developer, or under its respective control or direction, and also to protect against loss from liability
imposed by law for damages to any property of any Person occurring on or about the Property, the
Projectand/or the Improvementsor related to the Project and the business of Developer on the
Property, or in connection with the operation thereof, caused directly or indirectly by or from acts
or activities of Developer or any Person acting for Developer, or under its control or direction.
Such insurance shall also provide for and protect the City against incurring any legal cost in
defending Claims for alleged loss. Such insurance shall be maintained in full force and effect until
issuance of the Certificate of Compliance and so long thereafter as necessary to cover any claims
of damages suffered by persons or property prior to issuance of the Certificate of Compliance,
suppliers, consultants or other related parties, as further set forth in Sections9.7and 10.3. The
amount of insurance required hereunder shall include comprehensive general liability and personal
injury with limits of at least Five Million Dollars ($5,000,000) and automobile liability with limits
of at least Two Million Dollars ($2,000,000) combined single limit per occurrence. The insurance
shall be issuedby a company permitted by the Insurance Department of the Stateand rated A-/VII
or better (if an admitted carrier) or A-/X (if offered by a surplus line broker), by the latest edition
. Such insurance may be providedby an umbrella insurance
policy otherwise meeting the requirements of this Section11.
An ACORDcertificate evidencing the foregoing and providing the following
endorsements signed by the authorized representative of the underwriter and approved by the City
shall be delivered within seven (7) Business Days following the Effective Date and annually (upon
request from the City) evidencing renewals of each policy until issuance of the Certificate of
Compliance for the Project. The endorsements shall provide as follows: (1) designate the City
of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency, and their
respectiveelected and appointed officials, agents, representatives and employeesas additional
insureds on the commercial general liability policies;(2) the commercial general liability insurance
coverage shall be primary, and not contribute with any insurance or self-insurance maintained by
the City and (3) a waiver of subrogation for the benefit of the City. The procuring of such
insurance and the delivery of policies, certificates or endorsements evidencing the same shall not
as set forth herein.
11.1.2..Commencing upon the Effective
compensation insurance issued by a responsible carrier authorized under the laws of the Stateto
insure employers against liability for
force in California, or any laws hereafter enacted as an amendmentor supplement thereto or in
Developer in connection with the Project and shall cover liability within statutory limits for
compensation under any such act aforesaid, based upon death or bodily injury claims made by, for
or on behalf of any Person incurring or suffering injury or death in connectionwith the Project or
the operation thereof by Developer. Notwithstanding the foregoing, Developer may, in
compliance with the laws of the Stateand in lieu of maintaining such insurance, self-insure for
deliver to the City evidence that such self-
insurance has been approved by the appropriate State authorities. Developer shall also furnish (or
cause to be furnished) to the City evidence satisfactory to the City that any contractor with whom
it has contracted for performance of work on the Property or otherwise pursuant to this Agreement
signed by an authorized representative of the underwriter, shall contain a waiver of subrogation
for the benefit of the
to the Tustin Community Redevelopment Agency, and their respective elected and appointed
officials, agents, representatives and employe. The insurance provided for under this
Section11.1.2shall be issued by a company rated B-/VIII or better or from the State
Compensation Fund.
11.1.3.. Commencing upon the commencement of
construction by Developer of any Improvements and continuing until such time as the City delivers
a Certificate of Compliance, Developer shall obtain, or shall cause its contractor to obtain, and
comparable coverage through a property policy. Such insurance shall be maintained in an amount
not less than one hundred percent (100%) of the full insurable value of the Improvements. The
insurance provided for under this Section11.1.3shall be provided byinsurer(s) permitted to do
business in the State
Environmental Insurance
11.1.4..Commencing upon the earlier of the Close of
Escrow or the License Agreement effective date (as established in the License Agreement),
Developer shall obtain and shall thereafter maintainenvironmental and pollution legal liability
insurance coverage for the Property, including coverage for loss, remediation expense and legal
defense expenses, and
Community Redevelopment Agency, and their respective elected and appointed officials, agents,
at the Property
PLL
;provided that notwithstanding anything to the contrary set forth herein, the City
acknowledges and agrees that such insurance may contain exclusions from coverage relating to
conditions that are discovered during development on the Development Parcels.Such policy shall
comply with the following requirements:
(a)The policy shall be written by the insurance company selected by
Developer and approved by the City, which approval shall not be unreasonably withheld,
and which insurer(s) shall have a Best-/VII or better;
(b)The policy shall provide Five Million Dollars ($5,000,000) in
coverage, subject to a maximum One Million Dollar ($1,000,000) deductible per claim, to
protect against Claims and loss from liability relating to known and unknown conditions on
the Property for a 10-year term;and
(c)The policy shall be paid for in full at the time of issuance and shall
be endorsed as non-cancelable by Developer without the written consent of the City in its
sole discretion to such cancellation and, to the extent available, shall contain a waiver of
subrogation for the benefit of the Cityof Tustin and the Successor Agency to the Tustin
Community Redevelopment Agency, and their respective elected and appointed officials,
agents, representatives and employees
environmental insurance pursuant to this Section 11.1.4shall survive the termination of this
Agreement following the Close of Escrow for the term required for such insurance policy
pursuant to Section11.1.4(b).
(d)Developer shall name the City as an additional insured with respect
to any additional environmental and pollution legal liability insurance coverage Developer
acquires for the Property, the DevelopmentParcels or any portion thereof and to the extent
such policy is prepaid, shall not modify or terminate such policy following the termination
of this Agreement.
(e)The policy shall permit (by the terms of the policy or by
endorsement)transferof the policyto Successor Owners and successors and assigns of
Developer (but excluding any End Users) and, if this Agreement terminates and the Close
of Escrow does not occur, to the City.
Developer shall not carry out any environmental testing, sampling, invasive testing, or
boringon the Development Parcels prior to the effective date of the environmental insurance
policy.The provisions of this Section11.1.4shall survive the termination of this Agreement.
General Insurance Requirements
11.2..
11.2.1.For all policies or certificates, the insurer endorsements (or a copy of the
policy binder, if applicable) shall specifically identify this Agreement and shall provide evidence
that either (a)Developerhas paid for its premium in full for any policy that is currently in place,
or(b)that said insurance shall not be cancelled except if the City is given at least thirty (30)
calendar days advance written notice of any cancellation or termination of insurance by the insurer.
full insurable value
11.2.2.Section11shall mean the
cost determined by mutual agreement of the Parties (excluding the cost of excavation, foundation
and footings below the lowest floor and without deduction for depreciation) of providing similar
Improvements of equal size and providing the same habitability as the Improvements immediately
before such casualty or other loss, but using readily-available contemporary components, including
the cost of construction, architectural and engineering fees, and inspection and supervision.
11.2.3.All insurance provided under this Section11shall be for the benefit of the
Parties. Developer agrees to timely pay all premiums for such insurance and, at its sole cost and
expense, to comply and secure compliance with all insurance requirements necessary for the
maintenance of such insurance. Developer agrees to submit certificates evidencing insurance
required by Sections11.1.1 and 11.1.2to the City on an ACORDform within five(5) Business
Days following the Effective Date. Upon request by the City, within seven (7) calendar days, if
practicable, after expiration of any such policy, certificates evidencing renewal policies shall be
submitted to the City, together with evidence of payment of premiums.
11.2.4.If Developer fails or refuses to procure and maintain insurance as required
the City shall be treated as a loan, due from Developer, to be paid on the first calendar day of the
month following the date on which the premiums were paidand such cost, until paid, shall
constitute a City Lien on the Property. The City shall give prompt notice of the payment of such
premiums, stating the amounts paid and the name of the insured(s).
11.2.5.If there is no License Agreement entered into by the Parties prior to the
Close of Escrow, the insurance policies required by Section11.1.4will not be effective until after
the Close of Escrow, andaccordingly, the evidence of insurance to be delivered by Developer to
the City at the Close of Escrow shall be limited to a binder evidencing that the insurance required
by Section11.1.4will become effective following the Close of Escrow.
Covenants andRestrictions
12..
Developer, on behalf of itself, and each Successor Owner andeach and every Person claiming by,
through or under Developer or any Successor Owner,including, only where specified below, each
End User, and where not otherwise specified, excluding any End Users:
Use Covenant
12.1..
Developer shall cause the Development Parcels to be developed(a)only for lawful
residential uses and such uses as are ancillary or incidental thereto and (b)as a High Quality
Residential Project.
Maintenance Covenant
12.2..
Maintenance Standards
12.2.1.. Developer, on behalf of itself and each
Successor Owner, hereby covenants and agrees, from and after the Close of Escrow to maintain
the Development Parcels,the Improvements, including the Landscape Improvements,thereon
consistent with the following requirements:
(a)Prior to commencement of construction, Developer shall be
responsible, at its sole cost and expense, (i)to secure and maintain the Development Parcels
in a clean, safe and secure condition, in compliance withall applicable laws, (ii)to abate
weeds and other hazards and nuisances on the Development Parcels, (iii)to erect and
maintain barricades and fencing, and provide security, in each case with respect to the
Development Parcels and as reasonably necessaryto protect the public and any
Improvements already constructed, and (iv)to maintain (in compliance with all
Environmental Laws) erosion control on the Development Parcels.
(b)From the date of commencement and during the continuance of
construction of any Improvements on the Development Parcels, Developer shall maintain
the Development Parcels and the Improvements then under construction consistent with
normal and customary construction industry practice.From and after the initial installation
ofany of theLandscape Improvements, Developer shall maintainall Landscape
Improvementsthen installed in good conditionand consistent with the requirements of this
Agreement, the Special Restrictions, the CC&Rs and theLandscape Maintenance
Agreement, as applicable; provided that with respect to Landscape Improvementslocated
onCommon Area, the obligation of Developer under this Section shall terminate with
Association; provided, however, that in the event that the City accepts the irrevocable offer
of dedication provided on the Final Map for Lot A, the Landscape MaintenanceAgreement
shall terminate as to Lot A, and Developer shall concurrently be released from the
performance of all maintenance obligations and all other terms and conditions under this
Agreement with respect to Lot A.
(c)From and after the issuance of a certificate of occupancy for any
Home, Buildingor other Improvements on the Development Parcels,and prior to the
transfer thereof to an End User, Developer shall maintain all Improvements on such
Development Parcels and all Landscape Improvements not then under construction in a
clean, sanitary, orderly and attractive condition, and in accordance with High Quality
Residential Standards, subject to reasonable wear and tear and toSection12.2.2and in
accordance with the requirements of the Special Restrictions, the Landscape Maintenance
Agreement and the CC&Rs. Developer shall be required to meet the standard for the quality
of maintenance of the Improvements on the Development Parcels required by this Section
regardless of whether or not a specific item of maintenance is listed below, except that, in
each case, and notwithstanding anything in this Section to the contrary, Developer shall not
have any maintenance obligation with respect to (x)any Completed Improvements owned
or controlled by (or on property owned or maintained by) any Homebuyerorthe
Association,or(y)with respect to any Completed Improvements owned by
any utility, Governmental Authority, lighting or landscape district or, except as set forth in
the Landscape Maintenance Agreement, by the City. Representative items of maintenance
shall include: (i)maintenance, repair and replacement on a regular schedule, consistent with
High Quality Residential Standards, of all Common Area, Common Area Improvements,
Landscape Improvements,Buildings, structures, improvements, Private Streetsand
Sidewalksand all otherroads, drives, bike paths, alleyways, sidewalks, utilities, courtyards,
landscaping, hardscaping and fountains;(ii)regular inspection for graffiti or damage or
deterioration or failure, and reasonably prompt (or, in the case of graffiti, within 48 hours)
repainting or repair or replacement of all surfaces, fencing, walls, equipment, etc., as
necessary; (iii)emptying of trash receptacles and removal of litter; (iv)regular sweeping of
Private Streetsand Sidewalksthroughout the Development Parcels;(v)fertilizing,
irrigating, trimming and replacing vegetation and other Landscape Improvementsas
necessary; (vi)cleaning exterior windows on a regular basis; (vii)painting the Buildings
and other structures on the Development Parcels on a regular program and prior to the
deterioration of the painted surfaces; and (viii)conducting roof inspections on a regular
basis and maintaining roofs in a leak-free and weather-tight condition.
Casualty
12.2.2.. In the event of casualty occurring with respect to portions of the
Property still owned by Developer, Developer shall, in its sole discretion, either (i)promptly repair
the Improvements and prior to commencement of such repair maintain the portions of the
Development Parcels subject to casualty in accordance with Section12.2.1(b), or (ii)if Developer
determines in its sole discretion not to repair such Improvements, maintain the portions of the
Development Parcels subject to casualty in accordance with Section12.2.1(a). In each case, upon
commencement of any construction with respect to the affected portions of the Development
Parcels and until completion thereof, Developer shall comply with the requirements set forth in
Section12.2.1(b)and upon completion of the repair work, shall comply with the requirements set
forth in Section12.2.1(c).Notwithstanding the foregoing, the portions of the Development Parcels
unaffected by any such casualty shall be maintained as otherwise required by this Agreement and,
including pursuant to Section12.2.1(c), and unless not economically feasible due to cost or
physical proximity as demonstrated to the reasonable satisfaction of the City, Developer shall
provide landscaping or other barriers to shield the portions of the Development Parcels remaining
in use and adjacent public roadways from those subject to casualty and from adjoining streets in
order to maintain the portions of the Development Parcels and the Improvements thereon
unaffected by such casualty as required pursuant to Section12.2.1(c).The provisions of this
Section shall survive the termination of this Agreement.
City Rights to Maintain
12.2.3.. IfDeveloper fails to maintain the Improvements
orthe Development Parcels or any portion thereof in accordance with the standard for the quality
of maintenance set forth in this Section12and such failure continues after the delivery of notice
and the expiration of the cure period under Section14.2.2,the City or its designee shall have the
right but not the obligation to enter the Property upon reasonable notice to Developer, correctsuch
failure, and hold Developer responsible for the cost thereof, and such cost, until paid, shall
constitute a City Lien on the applicable portion of the Property.
Maintenance Responsibilities
12.2.4.. Except as otherwise provided in this
Section,
the Project and all of the Development P
under this Section12.2shall terminate with respect to any portion of the Development Parcels
transferred to an End User and such termination shall be effective automatically upon such transfer.
With respect to those portions of the Development Parcels not yet transferred to an End User,
Developer shall have the right (a)to assign its maintenance responsibilities under this Agreement
ugh the CC&Rs,following
which assignment Developer shall have no further liability under this Section12.2,and (b)to
Association or a first class property management company provided that such subcontracting shall
not relieve Developer of any liability for its obligations under this Section12.2; provided, however
that such assignment shall not relieve Developer of its maintenance obligations under this
Section12.2.
Duration of Covenants
12.3..
The Special Restrictions shall provide that the covenants in Sections12.1and12.2shall
remain in force and effect until thetwenty-fifth (25th) anniversary of the Recording of the Special
Restrictions, provided that the provisions of Section12.2.1(c)shall terminate upon the Recordation
of the CC&Rsagainst the Property, unless released at an earlier date by City in writing.In
addition, the covenant set forth in Section12.2.2shall apply with respect to all portions of the
Development Parcels owned by Developer during the term of this Agreement.
Profit Participation Price
12.4..
Developer covenants and agrees on behalf of itself and each Successor Owner to pay to the
City the Profit Participation Pricepursuant to the terms and conditions of the Profit Participation
Agreement, which shall be in substantially the form and substance of the Profit Participation
Agreement attached to this Agreement as Attachment14.
Obligation to Refrain from Discrimination
12.5..
Developer,on behalf of itself, each Successor Owner and each and every Person claiming
by, through or under Developer or any Successor Owner,including each End User,that there shall
be no discrimination against or segregation of any person, or group of persons, on account of sex,
race, color, religion, ancestry, national origin, disability, medical condition, marital status, or
sexual orientation in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property
or in development of the Project, norshall Developer establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property or in development
of the Project.
Deed Restrictions/Covenants Running with the Land
12.6..
This Agreement and all other obligations, agreements, covenants, representations,
warranties, and indemnitiesset forth herein are hereby agreed by Developer and by the City to be
covenants running with the land and enforceable as equitable servitudes against the Development
Parcelsand are hereby declared to be and shall be binding upon the Development Parcelsand
Developerand its successors and assigns (who may ownall or any portionof the Development
Parcels)for the benefit of the City and its successors and assigns, subject to the effects of
recordation of a Certificate of Compliance as provided for in Section9.To the extent set forth
therein, the Special Restrictions and the Quitclaim Deed shall be covenants running with the land,
shall be binding upon Developer, each Successor Ownerand End User,and each and every Person
claiming by, through or under Developer or any Successor Owner for the benefit of the City and
its Governmental Successors.
Priority of DDA and Special Restrictions
12.7..
This Agreement, including theCityLien, the Right of Purchase and the Right of Reversion
contained herein, the Memorandum of DDA and the Special Restrictions shall be superior in
priority to all Mortgages, provided, however, this Section12.7shall not apply to any Mortgages
obtained by Homebuyers.
Landscape Maintenance Agreement
12.8..
LandscapeArea
12.8.1.. As a condition to the Close of Escrow, Developer and
the City shall enter into a landscape maintenance agreement in the form and substance of the
Landscape Installation and Maintenance Agreement attached as Attachment21tothis Agreement
Landscape Maintenance Agreement
(the, which shall require that Developer install and
maintainLandscape ImprovementsontheLandscape Areadescribed therein, including vegetation
of a type and amount as may reasonably be required to maintain landscaping of the Landscape
Areaconsistent with High Quality Residential Standards.The Landscape Maintenance Agreement
or other instrument agreed upon by the City and Developereach in its sole discretionshall grant
to the Citythe right to utilize self-help in the event of non-performance by Developer or its
successors and assigns with respect to the obligations of such Persons under the Landscape
Maintenance Agreement.
City Rights to Maintain
12.8.2.. In the event Developer fails to maintain the
Landscape Areaor any portion thereof in accordance withthe standard for the quality of
maintenance pursuant to Section12.8.1, the City or its designee shall have the right but not the
obligation following a reasonable notice and cure period,tocorrect any violation,and hold
Developer responsible for the cost thereof, all as more particularly set forth in the Landscape
Maintenance Agreement.
Public Access Easement
12.9..
Developer shall, pursuant to the Final Map, grant a perpetual easement to the City for the
benefit of the public providing public pedestrian and vehicular access in, on, over and across the
PubliclyAccessible Common Areain the locations depicted on Attachment13in order that the
Publicly Accessible Common Areaand the Publicly Accessible Common Area Improvementsare
made available to the public. In addition, as a condition to City Closing Condition, Developer
shall execute and deliver to the City and the City shall have executed a formal acceptance of a
public access easement in the form and substance of the Public Access Covenant and Declaration
of Easement attached to the DA asExhibitor as otherwise approved by City and Developer,
Public Access Easement
If the Final Map has not been recorded
prior to the Close of Escrow, the Public Access Easement shall include a reservation or grant of
easements in favor of the City over all of the easement and dedication areas depicted on the
Tentative Tract Map for public access upon the terms and conditions set forth onthe Tentative
Tract Map.
Irrevocable Offer to Dedicate; Pedestrian Bridge
12.10.
The Final Map shall contain an irrevocable offer to dedicate in favor of the City of a fee
interest in and to LotA, as shown on Attachment13,whichsuch property shall comprisea
Pedestrian Plazaupon which a pedestrian bridge may be constructed at the sole discretion of the
Pedestrian Bridge
City .
CC&Rs and Association
13..
CityApproval of CC&Rs
13.1..
Nolater than thirty (30) calendar days following the Effective Date,Developer shall submit
restrictions, as well as design guidelines for development of the Improvements to be constructed
as part of the Project, together with other requirements included in the conditions of approval for
CC&Rs
. As a condition
precedent to the Close of Escrowfor the benefit of the City,the City shall have reviewed and
shall respond to any changes requested by the Citywithin ten (10) Business Days following each
iteration of comments by the City.In addition,not less than thirty (30)calendar days prior to
submission of the CC&Rs to theBRE, Developer shall submit to the City, for the
son
of that version to the draft originally reviewed by the City. Thereafter, prior to Recording of the
CC&Rs, Developer shall submit to the City, for the the version of the
CC&Rs approved by BRE togetheron of that version to the draft
submitted to BREand City shall review and approve such final version, within two (2) Business
Days from receipt of such final version.
with respect to compliance with the conditions of approval for the Entitlements and the DA shall
shall be
reasonable for the City to disapprove the terms and conditions of the CC&Rs if, among other
things, such terms and conditions conflict with any requirement of this Agreement, the DAor the
Special Restrictions, relieve the Homebuyers or the HAssociationof any obligations
imposed pursuant to this Agreement, the DAor the Special Restrictions or impose any obligations
upon the City; provided, however that City may not disapprove any of the terms and conditions of
the CC&Rs required by the BRE.Among other things, theCC&Rs shall establish (a)creation of
only one Association for the Project (except as provided inSection13.2) which
entity shall be responsible for maintenance of the Development Parcels, the Landscape Area,the
Common Areaand Common Area Improvements, including the Publicly Accessible Common
Areaand Publicly Accessible Common Area Improvements;(b)a mechanism for sharing costs for
maintenance of theLandscape Areaand the Common Areaand Common Area Improvements,
including the Publicly Accessible Common Areaand Publicly Accessible Common Area
Improvements;(c)a maintenance covenant for the benefit of the City as set forth in Section12.2
or as otherwise agreed by the City in its sole discretion;(d)regulations governing the use,
maintenance and operation of Homes by the Homebuyers thereof and of the Common Areaand
Common Area Improvementsby the Association and (e)all other requirements
included in the conditions of approval for the Tentative Tract Map for the Project. The CC&Rs
shall be Recorded prior to the issuance of the first certificate of occupancy for a completed Home
within the Property. Prior to Recording of the CC&Rs and during any period required by the
CC&Rs, Developer shall maintain all Improvements that are the responsibility of Developer or the
maintenance responsibilities shall include the responsibility, at its sole cost, from and after the
Close of Escrow, to maintain, repair and replacethe landscape improvements within the Boundary
Landscape Area installed by the City prior to the Close of Escrowand to maintain, repair, replace
and pay the costs of all irrigation and other improvements required to maintain such landscaping.
Association and Sub-Association
13.2..
The Developer shall form a Association as provided in Section13.1,
provided however, Developer may, at its option, form a sub-association in accordance with the
requirements of the CC&Rs and the applicable provisions of California law composed of
Homebuyers and their successors and assignswithin the Development Parcels, for the purpose of
administering and enforcing covenants, conditions, restrictions, reservations, easements, equitable
servitudes, liens and charges, owning and maintaining all Common Area Improvements, if any,
collecting and disbursing assessments and charges, and performing such other acts as shall
generally benefit the Development Parcels, provided that none of the Homebuyers within the
Project are excluded from any Common Areaor from use of any Common Area Improvements
and the public is provided access in, on over and to thePublicly Accessible Common Areaand the
Publicly Accessible Common Area Improvementsas required by Section12.9.
Potential Defaults and Material Defaults
14..
Potential Defaults
14.1..
Defaulting
Except as otherwise provided in this
Party
Potential
DefaultInjured Party
Default Notice
the Potential Default.
Material Defaults
14.2..
Monetary Defaults
14.2.1.. Notwithstanding any other provision of this
Agreement, if a Party fails to pay the other Party any sum required to be paid pursuant to this
Agreement, and the Injured Party gives the Defaulting Party a Default Notice of such nonpayment,
such nonpayment shall be a Potential Default. The Defaulting Party shall have a period of fifteen
(15) calendar days after the date the Default Notice is received, or deemed to have been received,
within which to cure the Potential Default by making the required payment; the period to cure such
Potential Default shall not be extended by Force Majeure Delays. In the event a Potential Default
for nonpayment is not cured within said fifteen (15) calendar day period, the Potential Default
Material Default
be deemed to have occurred upon the expiration of
the cure period.
Non-Monetary Defaults
14.2.2.. With respect to non-monetary defaults under this
Material Default
Default is not cured, a(a)within thirty (30) calendar days after
the date the Default Notice is received, or deemed to have been received by the Defaulting Party;
(b)if such cure cannot be reasonably accomplished within such thirty (30) calendar day period,
within ninety (90) calendar days after the date the Default Notice is received, or deemed to have
been received by the Defaulting Party, but only if the Defaulting Party has commenced such cure
within such thirty (30) calendar day period anddiligently pursues such cure to completion;or
(c)within such longer period of time as may be expressly provided in this Agreement or as
mutually agreed to in writing between the Parties with respect to the Potential Default; provided,
thatclauses(b)and(c)
obligations under Section8.7.3(g).Following written notice and failure to cure within the time
periods set forth above, each Potential Default shall become a Material Default that shall be
deemed to have occurred upon the expiration of the applicable cure period. Notwithstanding
anything in the foregoing to the contrary, the Defaulting Party may cure a Material Default at any
time prior to the date the Injured Party exercises its remedy for the Material Default.
Transfer Defaults
14.2.3.. Notwithstanding the foregoing, any Transfer or any
Transfer of Control in violation of the provisions of Section2shall be null and void and shall in
all events be a Material Default under thisAgreement as of the date of the Transfer or Transfer of
Control by the violating party, without notice or cure period and shall not be subject to extension
for Force Majeure Delay.
Interest
14.2.4.. If a monetary Material Default occurs under this Agreement, then
in addition to any other remedies conferred upon the Injured Party pursuant to this Agreement, the
Defaulting Party shall pay to the Injured Party, in addition to all principal amounts due, interest on
such principal amounts at the Default Rate, for the period from the date such payment or part
thereof was due until the date the same is paid.
No Waiver
14.2.5.. Failure or delay by an Injured Party to deliver a Default Notice
shall not constitute a waiver of any Default, nor shall it change the time of Default. Except as
otherwise expressly provided in this Agreement, any failures or delays by either Party in asserting
any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of
any such rights or remedies. Delays by eitherParty in asserting any of its rights and remedies shall
not deprive either Party of its right to institute and maintain any actions or proceedings which it
may deem necessary to protect, assert or enforce any such rights or remedies.
Due Diligence Information; Products
14.3..
Returnof Due Diligence Information
14.3.1.. Within five (5) Business Days
following a termination of this Agreement occurring prior to the Close of Escrow, Developer shall
use commercially reasonable efforts to return to the City all written Due Diligence Information in
is without representation or warranty of any kind by Developer.
Surrender of Transferable Products
14.3.2.. In connection with the proposed
Project, Developer shall be preparing or causing to be prepared architectural and other products,
surveys, plans, reports, tests, studies and investigations with respect to the Development Parcels,
Products
the
Material Default by the City prior to or following the Close of Escrowor if the Right of Purchase
or Right of Reversion is exercised, then, with respect to all Products other than financial or
economic estimates, projections and evaluations; studies and information related to potential
tenants, lenders and investors; any confidential or proprietary information of Developer or its
equity partner(s),or attorney-client or other privilege (the Products not subject to such exclusions
Transferable Products
consider
Products identified by the City, but in no event shall the cost to the City exceed Five Thousand
Dollars ($5,000). Upon such request, Developer shall deliver to the City copies of all Transferable
Products requested by the City together with a bill of sale therefor, provided that such transfer is
made AS-IS and Developermakes no representation, warrantee or guarantee regarding the
completeness or accuracy of the Transferable Products, and Developer does not covenant to
convey the copyright or other ownership rights of third parties thereto. Such Transferable Products
shall thereupon be free of all claims or interests of Developer or any liens or encumbrances. Upon
permitted to use, grant, license or otherwise dispose of such Transferable Products to any person
or entity for development of the Project or any other purpose; provided, however, that Developer
shall have no liability whatsoever to the City or any transferee in connection with the use of the
Transferable Products. Notwithstanding anything to the contrary herein, Developershall only be
obligated to transfer any Transferable Products to the extent that Developerowns the rights to the
same pursuant to its contract with the preparer thereof, provided that Developershall use
commercially reasonable efforts to secure ownership of Transferable Products pursuant to such
contracts.
Survival
14.3.3.. The provisions of this Section14.3shall survive the termination
of this Agreement in its entirety or as to any portion of the Property except that it shall terminate
upon the issuance of the Certificate of Compliance.
Nonoccurrence of a Condition at Close of Escrow
15..
Failure of a Condition Absent a Default
15.1..
15.1.1.In the event the Close of Escrow is extended for any of the reasons set forth
in this Section15.1not caused by a Default by either Party, either Party shall have the right to
terminate this Agreement as hereinafter provided:
(a)In the event a final decision in any litigation brought by a third party
or approval of a referendum or initiative results in the inability of the City to convey all or
any portion of the Property to Developer, or results in the inability of Developer to perform
tothe other Party and the Escrow Holder, to terminate this Agreement.
(b)In the event litigation, referendum, or initiative brought by a third
party remains pending on the Outside Closing Date and (i) such ongoing challenge prevents
the City from conveying all or any portion of the Property to Developer, or (ii) such ongoing
right,
Holder, to terminate this Agreement.
(c)In the event that the circumstances creating the right of termination
inSections15.1.1(a)or(b)have been cured during such thirty (30) calendar day period, the
right to terminate shall likewise be extinguished.
15.1.2.If the Close of Escrow does not occur on or before 5:00 p.m., Pacific Time,
on the Outside Closing Date, because of the failure to occur of a Closing Condition for reasons
other than a Default by either Party, then the Party for whose benefit the applicable Closing
Condition was intended may, by delivery of written notice to the other Party and to the Escrow
Holder, terminate this Agreement. In the event either Developer or the City is in Default as of the
Closing Date, the Party in Default shall not have the right to terminate the Agreement pursuant to
this Section15.1until and unless the Default is cured. Unless otherwise set forth in
Sections15.2,15.3or15.4, upontermination of this Agreementeach Party shall pay one-half
and the Purchase Price Deposit shall be
retained in full by the City. The termination of this Agreement pursuant to this Section15.1shall
constitute a waiver of any rights or Claims either Party may have against the other or against the
Property or the Improvements, or any portion thereof, but shall not terminate or release any liability
or obligations of either Party to comply with any obligations under this Agreement which are
expressly stated to survive a termination of this Agreement prior to the Close of Escrow. In the
event of a termination as provided in this Section15.1, under no circumstances shall Developer
have any right or claim to, or against, the Project or Property or any portion thereof.
15.1.3.For purposes of clarity, the failure of a Closing Condition for the benefit of
either Party to be satisfied at or prior to the Close of Escrow shall not, on its own, constitute a
Default by either Party hereunto absent a Default under a separate covenant, obligation,
representation or warranty set forth in this Agreement or any Other Agreement.
Failure of Close of EscrowFor Reasons Other than Deposit Return Event
15.2..
IF THE CLOSE OF ESCROW DOES NOT TAKE PLACE ON OR BEFORE 5:00 P.M.,
PACIFIC TIME, ON THE CLOSING DATE FOR ANY REASON OTHER THAN SOLELY AS
A RESULT OFA DEPOSIT RETURN EVENT, THE PARTIES ACKNOWLEDGE AND
AGREE BY INITIALING THIS AGREEMENT IN THE SPACE PROVIDED BELOW THAT:
(a)(i) ESCROW HOLDER SHALL DISBURSE THE ENTIRETY OF
THE PURCHASE PRICE DEPOSIT AND ALL ACCRUED INTEREST THEREON TO
THE CITY, AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE
FAILURE TO CLOSE ESCROW, EXCE
REMEDIES FOR A SEPARATE BREACH, IF ANY, OF THE CONFIDENTIALITY
AND/OR INDEMNIFICATION PROVISIONS SET FORTH IN
SECTIONS5.5AND17.24OF THIS AGREEMENT AND/OR THE PROVISIONS OF
SECTION14.3, AND (ii) THE CITY SHALL HAVE THE RIGHT TO TERMINATE
THIS AGREEMENT AND THE ESCROW BY DELIVERING WRITTEN NOTICE TO
THE DEVELOPER AND TO ESCROW HOLDER AND THE CITY SHALL BE
RELEASED FROM ITS OBLIGATION HEREUNDER TO SELL THE PROPERTY TO
DEVELOPER.
(b)THE PURCHASE PRICE DEPOSIT PROVIDED FOR IN
SECTION4.2.1OF THIS AGREEMENT BEARS A REASONABLE RELATIONSHIP
TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE SUFFERED BY
FAILURE TO CLOSE ESCROW
UNDER THIS AGREEMENT, WHICH DAMAGES WOULD BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO QUANTIFY, THAT SUCH PURCHASE PRICE
IN SUCH EVENT, AND THAT THE REMEDY PROVIDED FOR IN THIS
SECTION15.2IS NOT A PENALTY OR FORFEITURE AND IS A REASONABLE
FAILURE TO CLOSE ESCROW; AND
(c)DEVELOPER SHALL PAY THE FULL AMOUNT OF ESCROW
(d)DEVELOPER SHALL COMPLY WITH THE REQUIREMENTS
OFSECTION14.3AND SHALL INDEMNIFY THE CITY AS PROVIDED IN
SECTION5.5.
___________________________________
Initials of CityInitials of Developer
Failure to Close; Default of City
15.3..
15.3.1.If the Close of Escrow does not occur on or before 5:00 p.m., Pacific Time,
on or before the Closing Date, solely as a result of a Default by the City in the performance of its
obligations under this Agreement, then, so long as Developer is not in Default and subject to the
requirements of Section15.3.2, Developer shall have the right, by providing notice to the City,
within twenty (20) Business Days after the Closing Date, of its election to do so, either: (a) to
purchase the Development Parcels pursuant to this Agreement notwithstanding such Default by
the City, whereupon such Default
documents and instruments required under Section7.2.1(a)above) shall be deemed waived as
against the City; or (b) to terminate this Agreement and cancel the Escrow, in which case the
provisions of Section15.3.3shall apply. In the event Developer fails to deliver such notice within
such 20Business Day period, Developer shall be deemed to have elected to terminate this
Agreement and cancel the Escrow. Notwithstanding the foregoing, in the event the City fails to
deliver any of the materials described in Section7.2.1(a)or otherwise fails to proceed with the
Close of Escrow in breach of this Agreement within five (5) Business Days after Developer has
delivered into Escrow all of its required deliveries pursuant to Section7.2.2(other than the
Developer Closing Payment), and provided that all City Closing Conditions have been waived by
the City in writing or satisfied (except with respect to any City Closing Conditionwhich is not
satisfied as a result of a Default by the City), Developer shall have the right to bring an action in
equity or otherwise against the City or subsequent owners, lessors or sublessors of the Property for
specific performance ofits obligations to Close Escrow in accordance with its obligations under
Section7.
15.3.2.
purchase the Property pursuant to Section15.3.1(a), notwithstanding the Default by the City,
Developer shall deliver the Developer Closing Payment into Escrow no later than ten (10) Business
of Escrow for the benefit of the City, the Close of Escrow shall occur on that date which is eleven
waived the Default as of the Close of Escrow.
15.3.3.
terminate this Agreement pursuant to Section15.3.1(b)or Developer is deemed to have elected to
terminate this Agreement pursuant to Section15.3.1, the City shall pay the full amount of Escrow
and Developer (a)shall be entitled to a full refund of its Purchase Price Deposit,
hereunder for the failure of the Close of Escrow and (b)shallnot be entitled to pursue an action
against the City for damages as a result of theDefault by the City.
15.3.4.In the event Developer has elected to purchase the Property but fails to
deliver the applicable Developer Closing Payment into Escrow and to satisfy the other Closing
Conditions for the benefit of the City no later than ten (10) Busin
of said notice, then the City shall have the right to terminate this Agreement by providing written
notice of its election to terminate to Developer, such termination to be in accordance with the
provisions of Section15.3.3.
15.3.5.The termination of this Agreement pursuant to this Section15.3shall not
terminate or release any liability or obligations of Developer to indemnify the City as provided in
Section5.5or to comply with Section14.3. In the event of a termination asprovided in
Section15.3.3, under no circumstances shall Developer have any right or claim to, or against, the
Property or any portion thereof. The termination of this Agreement pursuant to this Section15.3
shall constitute a waiver of any and all rights and Claims either Party may have against the other,
except as expressly provided above.
Failure to Close Escrow, Deposit Return Event
15.4..
If the Close of Escrow does not occur on or before 5:00 p.m., Pacific Time, on the Outside
Closing Date, as may be extended pursuant to Sections7.1.1and7.1.2,because of a failure of any
Closing Condition and the failure of such Closing Condition is a Deposit Return Event and occurs
for reasons other than a Default by either Party, then upon termination of this Agreement pursuant
toSection15.1, each Party shall pay one-
charges and the Purchase Price Deposit shall be paid in full to Developer.
Remedies for Defaults After the Close of Escrow
16..
General Remedies
16.1..
In the event Developer is in Material Default following the Close of Escrow, in addition to
whatever other rights the City may have in law or at equity, or as otherwise provided in this
Agreement, the City may do any one or more of the following with respect to the Development
Parcels:
(a)The City may record a lien against the Property in accordance with
Section16.2.
(b)Subject to Section17.5.1, the City may sue for damages it may have
incurred.
(c)The City may seek to specifically enforce the obligations of
Developer.
(d)The City may terminate this Agreement with respect to all, or any
portion of the Property.
Lien Rights
16.2..
Developer, on behalf of itself, each Successor Owner and each and every Person claiming
by, through or under Developer or any Successor Owner(but specifically excluding any End
Users)for the benefit of the City and its successors and assigns hereby agrees that the delinquent
amount of any payments due hereunder, including any liquidated damages under this Agreement,
together with any late charges or interest due on any such delinquent payment, reasonable
payment shall, to the greatest extent permitted by applicable law, be a lien and charge upon the
Property and shall be a lien upon the Property in favor of the City effective upon Recording of the
City Lien
charge of any Mortgage, Construction Lien and other lienupon or affecting the Propertyand the
City shall have the right to foreclose the City Lien with respect to any property so encumbered by
such lien. Upon conveyance of any portion of the Development Parcels to an End User, the City
Lien shall automatically terminate as to such conveyed portions, provided however, that the
termination of such City Lien shall not terminate the obligations of Developer to City with respect
to amounts due and secured by such lien, which shall remain an ongoing obligation of Developer[[2238,703,2288,760][12][,I,][Times New Roman]].
Right of Purchase
16.3..
16.3.1.Following the Close of Escrowand prior to the issuance of a Certificate of
Compliancewith respect to the Property and the Project, in the event of a Repurchase Default (as
Right of Purchase
definedbelow),
time, to purchase all or a portion of the Development Parcelsand all applicable Entitlements and
other development rights, consents, authorizations, variances, waivers, licenses, permits,
certificates and approvals from any governmental or quasi-governmental authority, Transferable
Repurchased Property
Products and all other appurtenant. The
Repurchased Property shall exclude(a)those Buildings and the Phases upon which such Buildings
are located
delivery of notice of a Repurchase Default which permit
exercise of the Right of Purchase;and (b)as to the Buildings and Phases excluded pursuant to
clause (a)above, (i) the Common Area and any Improvements located within such Building and/or
Phase, as applicable, and (ii) all Entitlements and other development rights, consents,
authorizations, variances, waivers, licenses, permits, certificates and approvals from any
governmental or quasi-governmental authority, and all other appurtenant rights applicable thereto,
including those units allocatedtodevelopment of the Repurchased Property as shown in the
Approved Plans orestablished pursuant to any Recorded Condominium Mapapproved by the City
pursuant to Section8.12(g).
Repurchase Default
16.3.2.. Subject to extension for Force Majeure Delay with
respect to clauses (a)through (e)belowonly, the City shall have the right to acquire the
Repurchased Property for the Repurchase Price in accordance with this Section16.3and upon the
Repurchase Default
occurrence of any one of the following
(a)Developer fails to comply with the Inventory Commitmentand such
becomes a Material Default in accordance with the notice and cure provisions of
Section14.2;
(b)Developer fails to comply with the Schedule of Performance and
such becomes a Material Default in accordance with the notice and cure provisions of
Section14.2;
(c)Developer constructs Improvements that are not in substantial
conformity with the Approved Plans and the requirements of Sections8.1.4and8.9and
such becomes a Material Default in accordance with the notice and cure provisions of
Section14.2;
(d)For a period of one hundred eighty (180) consecutive calendar days,
Developer is in Material Default of the maintenance obligations set forth in Section12.2
(including as set forth in the Special Restrictions, theCC&Rs or LandscapeMaintenance
Agreement), in accordance with the notice and cure provisions of Section14.2;
(e)Developercommits waste on the Propertyand such failure becomes
a Material Default in accordance with the notice and cure provisions of Section14.2;
(f)The occurrence of a Developer Insolvency Event;
(g)Developer fails to payprior to delinquency any property taxesor
assessments,including Districtassessmentsor to pay toCity any other sums due hereunder
and such becomes a Material Default in accordance with the notice and cure provisions of
Section14.2;
(h)A Material Default arises because ofa voluntary or involuntary
Transfer or Transfer of Control.
Exercise of Right of Purchase
16.3.3.. The City may exercise its Right of Purchase
by delivering written notice to Developer stating that the City is exercising its Right of Purchase
and specifying the Repurchased Propertywhich it intends to purchase; provided that such notice
is delivered at least ninety (90) calendar days prior to the date on which the City requires Developer
to convey the Property to the City pursuant to the Right of Purchase and otherwise in accordance
with this Section16.3. The Right of Purchase shall be a lien and encumbrance on the Property
and Improvements thereon that shall be paramount to the lien and charge of any Mortgage,
Construction Lien and/or other lien upon the Property. The Repurchased Property shall be
delivered to the City at close of escrow for the Repurchased Property free and clear of all liens and
Mortgages and subject only to (x)the Permitted Exceptions at the time of the applicable original
Close of Escrow for such portion of the Property,and (y)all other matters created in connection
with the Entitlements and the development of the Project pursuant to this Agreement.
Access and Inspection
16.3.4.. The provisions of Section16.5shall apply with
respect to the Repurchased Property.
Process
16.3.5.. If the City is entitled to and elects to repurchase the Repurchased
Property, the Parties shall: (a)
election to exercise the Right of Purchase, open an escrow with an escrow agent designated by the
City for the purchase and sale, and shall execute an escrow agreement that shall provide that
Developer shall pay all costs of the escrow and shall include such usual and ordinary terms as are
reasonably required by the escrow agent and by the transaction; (b)no later than five (5) Business
Days after the opening of escrow, Developer shall place into the escrow appropriate quitclaim
deeds and bill of sale conveying fee title to the Repurchased Property; and (c)no later than eighty-
five (85) calendar days after the opening of the escrow, the City shall deposit into the escrow an
amount equal to (i)the Repurchase Price [[1176,300,1326,357][12][,I,][Times New Roman]]minus [[1316,300,1410,357][12][,,][Times New Roman]](ii) [[1390,300,2124,357][12][,,][Times New
Roman]]the Lien Release Amounts, if any [[2098,300,2148,357][12][,,][Times New Roman]], [[2131,300,2281,357][12][,I,][Times New Roman]]minus
(iii)anyamounts then owedto the City by Developer and/or any Successor Owner, including any
City Liensarising pursuant to this Agreement with respect to the RepurchasedProperty and [[2131,416,2281,473][12][,I,][Times New Roman]]minus
(iv)the actual costs incurred by the City to acquire environmental and pollution legal liability
insurance coverage for theReacquired Property, including coverage for loss, remediation expense
and legal defense expenses.The escrow shall close, and title to the Repurchased Property shall be
conveyed to the City, no later than five (5) Business Days after the City has deposited into escrow
the Repurchase Pricedelivery of the City Repair
Acknowledgement with respect to anyrepairs to the Improvements made pursuant to Section16.5.
Concurrently with the close of escrow, Developer shall comply with its obligations under
Section14.3only with respect to the Repurchased Property. Nothing herein shall restrict the right
of the City to terminate its exercise of the Right of Purchase at any time prior to the close of escrow
andsuch termination shall not be a default by the City. At the close of escrow, real property taxes
and assessments withrespect to the Repurchased Property shall be prorated between Developer
and City as of the date of the close of escrow. All prorations shall be based upon a 365-day year
and actual days elapsed.All closing costs, including the cost of an ALTA policy of title insurance
in favor of the City with respect to the Repurchased Property shall be borne by Developer and
deducted from the Repurchase Price.
Cooperation and Grant of Easements
16.3.6.. The Parties shall cooperate with
respect to and concurrently with theclose of escrow for the Repurchased Property, shall each
reserve and/or grant to the other such roadway, utility, access and other easement rights as may be
required by the other Party and its successors in interest to develop the Property as a unified
development and as contemplated by the Entitlements, the CC&Rs, this Agreement and the Other
Agreements.
Termination of Right of Purchase
16.3.7.. In the event that prior to delivery by
the City of written notice to Developer of its exercise of the Right ofPurchase pursuant to
Section16.3.2,Developer or any Person on behalf of Developer either (a)cures the Repurchase
Default
Transfer or Transfer of Control in violationof this Agreement, or (b)Completes the Improvements
upon the Property that is subject to theRight of Purchase, such Right of Purchase shall cease and
terminate with respect to such portions of the Repurchased Property for which the Material Default
is cured or for which Improvements are so Completed only. In the event the City has declared a
Repurchase Default, Developer shall not have the right to apply for building permits for Vertical
Improvements in a manner that affects or thwarts the ability of the City to exercise its Right of
Purchase. The Right of Purchase shall not apply to the Property after the recordation by the City
of the Certificate of Compliance.
Effect of Repurchase
16.3.8.. The provisions of Section16.6shall apply with
respect to the Repurchased Property following close of escrow. Following close of escrow, under
no circumstances shall Developeror any lienholderhave any right or claim to, or against, the
Repurchased Property. Notwithstanding the purchase of the Repurchased Property by the City as
provided in this Section16.3, this Agreement shall remain in full force and effect with respect to
the portions of the Property and Improvements not purchased by the City.The Right of Purchase
shall not defeat or render invalid or limit any rights or interests provided in easements, covenants,
conditions or restrictions in favor of third parties who are not DeveloperAffiliates that are
approved by the City (or constituting a Permitted Transfer) and recorded on the Repurchased
Property purchased hereunder.
Survival of Provisions
16.3.9.. The provisions of this Section16.3shall survive
the termination of this Agreement.
TheRight of Reversion
16.4..
Following the Close of Escrowand prior to the recordation of the Certificate of
Compliance,in the event of the occurrence of any Reversion Action Trigger (defined in
Section16.4.1), and in addition to its other rights or remedies asa result of the occurrence of any
such Reversion Action Trigger, the City shall have the right on the terms and subject to the
conditions set forth in this Section16.4to re-enter and take possession of the Reacquired Property
Right of Reversion
notwithstanding that the Reacquired Property may be encumbered by liens, including Construction
Reversion
Liens. The revesting of any Reacquired Property by the City
Event
whether based on voluntary action of Developer or otherwise after notice by the City of
its intent to exercise the Right of Reversion.The City shall be entitled to exercise the Right of
Reversion at any time on or after the occurrence of any of any one or more of the Reversion Action
Triggers; provided that the City has complied with the conditions to exercise of the Right of
Reversion set forth in Section16.4.2.The Right of Reversion shall be a lien and encumbrance on
the Property that shall be paramount to the lien and charge of any Mortgage, Construction Lien
and/or other lienupon the Property.
Certain Defaults Triggering the Right of Reversion
16.4.1.. Following the
Close of Escrow and prior to the recordation of the Certificate of Compliance, the City may
exercise the Right of Reversion with respect any portion of the Development Parcels and any
Improvements thereon and all applicable Entitlements and other development rights, consents,
authorizations, variances, waivers, licenses, permits, certificates and approvals from any
governmental or quasi-governmental authority, the Transferable Products and all other
Reacquired Property
appurtenant rights applicable thereto (collectively, thupon the
Reversion Action Trigger
occurrence of any one
Reversion Action
Trigger Date
. The Reacquired Property shall exclude(1)those Buildings and the Phases upon
which such Buildings are located for which Developer has been issued a building permit prior to
theReversion Action Trigger Date which permit
exercise of the Right ofReversion; and (2)as to the Buildings and Phases excluded pursuant to
clause (1)above, (i) the Common Area and any Improvements located within such Building and/or
Phase, as applicable, and (ii) all Entitlements and other development rights, consents,
authorizations, variances, waivers, licenses, permits, certificates and approvals from any
governmental or quasi-governmental authority, and all other appurtenant rights applicable thereto,
including those units allocated todevelopment of the Reacquired Property as shown in the
Approved Plans or established pursuant to any Recorded Condominium Planapproved by the City
pursuant to Section8.12(g).
(a)Developer fails to commence the Grading Work within three(3)
months after the Close of Escrow or to Complete theHorizontal Improvements within thirty-
six(36)months after Close of Escrow,subject to extension for Force Majeure Delay for a
period not to exceed a total of twelve (12) months;
(b)Developer fails to Complete the Project within thirty-six (36)months
following opening of the Models to the public,as such date may be extended for Force
Majeure Delay (not to exceed a total of twelve (12) months);
(c)Developer commits waste on the Propertyand such becomes a
Material Default in accordance with the notice and cure provisions of Section14.2, subject
to extension for Force Majeure Delay;
(d)For a period of one hundred eighty (180) consecutive calendardays,
Developer is in Material Default with respect to the Inventory Commitmentset forth in
Section8.9.3;
(e)For a period of one hundred eighty (180) consecutive calendardays,
Developer is in Material Default of the maintenance obligations set forth in Section12.2
(including as set forth in the Special Restrictions, CC&Rs or LandscapeMaintenance
Agreement), in accordance with the notice and cure provisions of Section14.2;
(f)The occurrence of a Developer Insolvency Event;
(g)With respect to any Guarantor which hasprovided a Guaranty to the
City,the occurrence of a GuarantorIlliquidity Event,unless Developer shall, within the
time period required thereby,provide substitute security meeting the requirements of
Section4.7.1; or
(h)A Material Default arises becauseof a voluntary or involuntary
Transfer or Transfer of Control.
Conditions to Exercise of the Right of Reversion
16.4.2.. The City shall be
entitled to exercise the Right of Reversion at any time on or after the applicable Reversion Action
Trigger Date, without regard to any notice and cure periods except as expressly provided in
Section16.4.1; provided that the City has provided written notice to Developer that the City elects
to exercise its Right of Reversion and such notice states the date for the Reversion Event. The
provisions of Section16.5shall be applicable to exercise of the Right of Reversion. The date for
the Reversion Event shall not occur before the later of (a)the date that is ninety (90) calendar days
after the date of such notice of exercise;(b)the date that is five (5) Business Days after Developer
has had the opportunity to address the City Council at a public meeting regarding the Reversion
Action Trigger;and (c)the date that is five (5) Business Days following the delivery of the City
Repair Acknowledgmentwith respect to any repairs to the Improvements made pursuant to
Section16.5.2below.In the event that, following the first notice by City of its election to exercise
the Right of Reversion and prior to the Reversion Event, Developer or any Person on behalf of
Developer either (a)
of its Right of Reversion or (b)Completes the Improvements prior to the date of the Reversion
Event, such Right of Reversion shall cease and terminate with respect to such Reversion Action
Trigger only; provided that the provisions of this sentence shall not be applicable to any subsequent
notice by the City of its election to exercise the Right of Reversion.
Sale of Reacquired Property
16.4.3.. Upon the revesting in the City of title to the
Reacquired Property, the City shall use reasonable efforts to resell the Reacquired Property as soon
and in such manner as the City shall find feasible, in accordance with applicable state law, if any,
and consistent with the objectives of this Agreement, to a qualified and responsible party or parties
(as determined by the City in its sole discretion) who will assume the obligation of making or
completing the Improvements. Concurrently with the resale of the entire Reacquired Property, or
concurrently with each resale of any portion of the Reacquired Property, the proceeds thereof shall
be applied in the following order and amounts:
Delinquencies
(a). First, to repayment in full of all delinquent tax,
assessmentand other liens with respect to the portion of the Reacquired Property sold;
Reimbursement to the City
(b). Second, to reimburse the City on its
own behalf for all costs and expenses incurred by the City, in connection with the recapture,
managementand resale of the Reacquired Property, or any part thereof, including: a pro-
rata share of the salaries of personnel engaged in such action (based on the amount of time
spent by such personnel on such matters relating to the Reacquired Property as compared to
the aggregate amount of time worked by such personnel; all taxes, assessments and utility
charges with respect to the Reacquired Property; any payments made or necessary to be
made to discharge or prevent from attaching or being made any subsequent encumbrances
or liens due to obligations, Defaults or acts of Developer or any Successor Owner or each
and every Person claiming by, through or under Developer or any Successor Owner(but
specifically excluding any End Users); any expenditures made or obligations incurred with
respect to the making or completion of the agreed improvements or any part thereof on the
costs incurred in the marketing and sale of theReacquired Property; all legal fees and
expenses; all escrow and title fees and costs; all survey and due diligence fees and costs; all
the Lien Release Amounts, if any, paid by the City to third parties; and any amounts
otherwise owing to the City by Developer and/or any Successor Ownerunder this
Agreement or the Other Agreements, including any City Liensand the actual cost incurred
by the City to acquire environmental and pollution legal liability insurance coverage for the
Reacquired Property, including coverage for loss, remediation expense and legal defense
expenses.
Reimbursement to Developer
(c). Third, to reimburse Developer up to
the amount equalto the Repurchase Price attributable to the portion of the Reacquired
Property sold; and
Balance Retained by the City
(d). Any balance remaining after such
reimbursements shall be retainedby the City as its property.
Effect of Exercise of Right of Reversion
16.4.4.. The provisions of Section16.6
shall apply with respect to the Reacquired Property following close ofescrow. Following such
close of escrow, under no circumstances shall Developeror any lienholderhave any right or claim
to, or against, the Repurchased Property. Notwithstanding the acquisition of the Reacquired
Property by the City as provided in thisSection16.4, this Agreement shall remain in full force and
effect with respect to the portions of the Property and Improvements not purchased by the City.
provided in easements, covenants, conditions or restrictions in favor of third parties who are not
Developer Affiliates that are approved by the City (or constituting a Permitted Transfer) and
recorded on the portionof the Property for whichtheCity exercises its rights under this
Section16.4.
Cooperation and Grant of Easements
16.4.5.. Concurrently with close of escrow
for the Reacquired Property, the Parties shall each reserve and/or grant to the other such roadway,
utility, access and other easementrights as may be required by the other Party and its successors
in interest to develop the Property as a unified development and as contemplated by the
Entitlements, the CC&Rs, this Agreement and the Other Agreements.
Survival of Provisions
16.4.6.. The provisions of Sections16.4.3and16.4.4and
this Section16.4.6shall survive the termination of this Agreement.
Access and Inspection
16.5..
Access
16.5.1.. From and after the occurrence of any Repurchase Default, City and
its appointed and elected officials, agents, attorneys, employees, contractors, consultantsand
representativesshall have the non-exclusive right,exercising such right in the Proprietary Capacity
of the City, to enter upon at any reasonable time, at its own cost and expense entirely and upon
twenty four (24) hours prior telephonic or email notice to Developer, the Potential Returned
Property for the purpose of making such feasibility and other studies, inspections, appraisals,
audits, tests, evaluations, investigations, surveys and reports of the PotentialReturned Property
(including engineering and environmental audits, evaluations and tests relative to the presence of
any Hazardous Material within, under or upon the Potential Returned Property) (collectively,
City Inspections
o make or obtain in connection with its exercise of its Right
of Purchaseor Right of Reversion; provided that during such City Inspections on the Potential
Returned Property, City shall use commercially reasonable efforts to minimize its interference
with
against any and all Claims which Developer may incur or suffer by reason of any acts or omissions
to act of the City or its appointed and elected officials, agents, attorneys, employees, contractors,
consultantsand representativesin conduct of City Inspections on the Potential Returned Property,
provided that the foregoing indemnity shall not apply to the extent of (i)the gross negligence,
willful misconduct or fraud of Developer or any of the Developer Representatives, (ii)Hazardous
Materials conditions unless such condition is exacerbated by, or any Release caused by, negligent
acts of City or its employees, consultants or contractors, or (iii)the Active Negligence of the
Developer or any of the Developer Representatives in performance of work on the Development
Parcels Accruing prior to the close of escrow; provided that in no event shall the foregoing apply
with respect to inspections conducted by the City in its Governmental Capacity.
Inspection and Repair
16.5.2.. At any time following the occurrence of any
Repurchase Defaultor Reversion Action Trigger, the City may inspectthe Potential Returned
Property,and subsequent to the delivery of written notice by City to Developer of its exercise of
the Right of Purchase or the Right of Reversion, as applicable, City shall deliver written notice to
Defect Notice
Developer identifying any defects inthe Potential Returned Property
thirty (30)calendar daysfollowing the delivery by the City of the Defect Notice, Developer shall
cause all defects specified in the Defect Notice to be rectified or repaired, and such repair shall be
in accordance with the original approved plans with respect thereto, if applicable. All costs and
expenses of Developer in repairing,replacing or rectifying any defects identified in a Defect Notice
shall be included within the definition of Horizontal Improvement Costs or Vertical and Phase
Improvement Costs for purposes of determining the Repurchase Price. Upon completion of the
repairs of the Improvements, or rectifying of any physical condition of the Potential Returned
Property, including Environmental Matters, Developer and City shall inspect to confirm that such
work hasbeen appropriately completed, and City shall execute and deliver to Developer a
City Repair
certificate acknowledging the satisfactory completion of the work
Acknowledgment
City shall have the right at any time, and without consent of Developer, to
waive the obligation of Developer to carry out or complete repairsand to proceed to close of
escrow
ofSections16.6.3and16.6.4notwithstanding the waiver.
Obligations and Release Following Repurchase or Reversion
16.6..
Developer Obligations; Guaranty
16.6.1.. In the event the City exercises its
Right of Purchase as to the Repurchased Property as provided in Section16.3or its Right of
Reversion as the Reacquired Property as provided in Section16.4ofthis Agreement shall,unless
otherwise determined by the City in its sole discretion, terminate with respect to the Repurchased
Returned Property
Propertyor Reacquired Property, as applicable (each, ,as of the date of
the quitclaim deed conveying to the City title to the ReturnedProperty. Except as set forth in
Sections16.4.5and16.6,all other obligations of the Parties under this Agreementwith respect to
eachothershall be released and terminated,as to the Returned Propertyonly,at the close of escrow
for theReturned Property; provided, however thatin no event shall the Guaranty provided at the
Close of Escrow (or any Guaranty approved by the City in its sole discretion as a replacement for
such original Guaranty) to secure the obligations of Developer under this Agreement and the Other
Agreements with respect to the portion of the Property containing the Reacquired Property be
released or terminated as a result of the exercise by the City of the Right of Purchaseor the Right
of Reversionwith respect to the obligations set forth in Sections16.4.5 and 16.6andwith respect
to the Enforcement Payment Obligation(as such term is defined in the Guaranty).
Exceptions to Release
16.6.2.. Regardless of whether or not this Agreement is
terminated with respect to the Returned Property by the City, and notwithstanding the provisions
ofSections16.6.3and16.6.4, the close of escrow with respect to the Returned Propertyshall not
terminate or release any liability or obligations of Developeror any Responsible Developer or
Responsible Person with respect to such Returned Property for the following (and such liability
andobligations shall survive the close of escrow and shall not be merged into the quitclaim deed)
Guaranty provided in connection with the acquisition of the Reacquired Property by Developer
City Reserved Rights
:
(i)to release the City Released Parties pursuant to
Sections4.5.2(f),8.14.1and8.14.2;
(ii)to return any written Due Diligence Information with respect
to the ReturnedProperty pursuant to Section14.3;
(iii)to indemnify, defend and hold harmlesstheCity Indemnified
Parties as provided in Sections8.12(e),8.15,8.16and17.12.1for matters
turned
Propertyand with respect to any Developer,Responsible Developeror
Responsible Person, duringthe Additional Liability Period;
(iv)to indemnify,defend and hold harmless the City Indemnified
Parties as provided in Section5.5for matters occurring prior to the Close of
Escrow;
(v)to provide environmental insurance as described in
Section11.1.4for the period required by this Agreement and not to modify
or terminate any prepaid environmental insurance policy then in existence
for a longer term; and
(vi)to indemnify, defend and hold harmlesstheCity Indemnified
Parties as provided in Section10.1only with respecttothematters set forth
inSection16.6.3(c),(d)and(e)A
ownership of the Returned Property and,with respect to any Developer,
Responsible Developeror Responsible Person,during the Additional
Liability Period.
AS-IS Conveyance
16.6.3.. City and Developer acknowledge and agree that prior
to the close of escrow City will have thefull opportunity to inspect and investigate every aspect of
the Returned Property, including all matters related to the legal status thereof or requirements with
respect thereto, the zoning,thetitle condition,the economic conditions affecting the value, expense
of operation, or income potential thereof, Environmental Matters and the physical condition and
repair of the Returned Property and the Improvements thereon, including the work performed by
Developer with respect to construction of the Improvements,andany construction defects, errors
oromissions with respect to the Returned Property, but excluding the City Reserved Claims. The
City Reserved Claims
shall mean all Claims relating to or arising out of the following: (a)the
City Reserved Rights;(b)City Liensandamounts otherwise owedto the City by Developer and/or
any Successor Owner(to the extent that Developer is liable therefor under the terms of any
agreement between Developer and the City applicable to the Returned Property and not deducted
from the Repurchase Price);(c)information with respect to any aspect of the Returned Property
contained in written or electronic documentsin the possession of Developer or any of the
Developer Representatives thatarenot proprietary or confidential andnot otherwise known or
available to the City that the City has specifically requested in writing and that Developer has
declined to provide;(d)Claims other than with respect to Environmental Matters brought against
theCityIndemnified Partiesby third partiesand Accruedduring the period that (x)Developer
owned the Returned Property; and (y)with respect to any Developer,Responsible Developeror
Responsible Person, for the Additional Liability Period,as applicable;and (e)any Claim that is
the result of the willful misconduct or fraud of Developer or any of the Developer Released Parties.
City specifically acknowledges and agrees that, except for the City Reserved Claims, the Returned
Property, including any Improvements thereon, is conveyed pursuant to Section16.3or
Section16.4, as applicable,in an
the close of escrowfor the transfer of the Returned Property. For purposes of this Section16.6.3,
except as otherwise set forth in Section16.6, no statements, representations or warranties have
been made or are made by Developer and no responsibility has been or is assumed by Developer,
or by any partner, officer, employee, member, manager, person, firm, agent or representative
acting or purporting to act on behalf of Developer as to the Returned Property or the Improvements
thereon, or the value, expense of operation or income potential thereof, and City is not relying
upon any such statement, representation or warranty. Further, to the extent that Developer has
provided to City information or reports regarding any inspection, engineering or other matters
regarding the Returned Property Matters, Developer makes no representations or warranties with
respect to the accuracy, completeness, methodology of preparation or otherwise concerning the
contents of such reports. City acknowledges that Developer has requested City to inspect fully the
ReturnedProperty prior to the close of escrow and investigate all matters relevant thereto and to
rely solely upon the results of Cit
available to Citywith respect thereto, rather than any information that may have been provided by
turned Property shall
constitute its irrevocable declaration that it has fully inspected the Returned Property, or has been
given a reasonable opportunity to do so, and that it is fully satisfied with every aspect of the
Returned Property.Nothing in this Section shall limit theobligations of Developer,Responsible
Developer or any Responsible Person pursuant to Section16.6.2.
Release
16.6.4..Effective as of the close of escrow with respect to the Returned
Propertyand except as provided in Section16.6.2and the City Reserved Claims, City shall, on
behalf of itself and each Successor Owner and every Person claiming by, through or under City or
City Releasing Party
any Successor Owner (each, including the City,the right of each
City Releasing Party to recover from, and fully and irrevocably release, the Developer and its
employees, agents, attorneys, affiliates, representatives, consultants, contractors, successors and
Developer Released PartyDeveloper Released
Parties
rom any and all Claims that City or any City Releasing Party may now have or hereafter
suffer arising from or related to the Returned Property, whether known or unknown by any City
Releasing Party or any Developer Released Party, including: (i)any condition of the Returned
Property or any existing Improvement or future improvement thereon, known or unknown by any
City Releasing Party or any Developer Released Party, including as to the extent or effect of any
grading of the Returned Property; (ii)any construction defects, errors, omissions or other
conditions, latent or otherwise;(iii)economic and legal conditions on or affecting the Returned
Property, or any Improvement thereon; (iv)Environmental Matters, including the existence,
Release, threatened Release, presence, storage, treatment, transportation or disposal of any
Hazardous Materials at any time on, in, under, or from, the Returned Property or any current or
future improvement thereon or any portion thereof; (v)Claims of or acts or omission toact of any
Governmental Authority or any other third party arising from or related to any actual, threatened,
or suspected Release of a Hazardous Material on, in, under, or fromorabout the ReturnedProperty
or any current or future improvement thereon, including any Investigation or Remediation at or
about the ReturnedProperty or any current or future improvement thereon; and/or (vi)arising from
the Tustin Legacy Backbone Infrastructure Program, any Districtor the cost or extent thereof with
respect to the Returned Property, or the amount of the Project Fair Share Contribution or any
assessments with respect to Districtaffectingthe Returned Property described in this Agreement
not owing as of the date of the transfer. The foregoing release shall notextend to any City Reserved
Claims. Notwithstanding the foregoing, except as specifically set forth in this sentence, all City
Reserved Claims shall automatically be included within the matters released under this Section
effective upon the transfer or conveyance of the ReturnedProperty (or a portion thereof), to a third
party (as to the portion of the ReturnedProperty conveyed); provided that Developer shall
specifically not be released with respect to the City Reserved Claims specified in
Section16.6.2(i)and (iv),and Section 16.6.3(b)and (e).This release includes Claims with respect
to the foregoing released matters of which City is presently unaware or which City does not
presently suspect to exist (and which at the time of the close of escrow for the Returned Property
the City may be unaware or which the City may not then suspect to exist) which, if known by City,
Effective as of the close
of escrow for the Returned Property, with respect to the foregoing matters (and specifically
excluding the City Reserved Claims), City specifically waives the provision of California Civil
Code Section1542, which provides as follows:
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
In this connection, City, on behalf of itself, and theother City Releasing Parties hereby agrees, that
(x)it realizes and acknowledges that factual matters now unknown to it may have given or may
hereafter give rise to Claims or controversies which are presently unknown, unanticipated and
unsuspected;(y)the waivers and releases in this Section16.6.4have been negotiated and agreed
upon in light of that realization,and (z)City, on behalf of itself and the other City Releasing
Parties, nevertheless hereby intends to release, discharge and acquit the Developer Released
Parties from any such unknown Claims and controversies to the extent set forth above.To the
extent permitted by law, the foregoing provisions of this Section16.6.4shall survive the close of
escrow for the Returned Property and the termination of this Agreement and shall not be merged
with any quitclaim deed.
City Responsibility in Sale to Third Party
16.6.5.. City agrees to cause
Developer to be included as a benefited party under all release and indemnity provisions with
respect to the Returned Property and any Improvements thereon which are contained in any
agreement between the City and the third party transferee relating to the conveyance or transfer of
the ReturnedProperty or portion thereof, to the same extent as the City is released and/or
indemnified by such third party transferee.
Cooperation of Developer
16.7..
If the City exercises its Right of Purchase or Right of Reversion in accordance with the
provisions of this Agreement, Developer shall use all reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable
law to consummate the repurchase of the Repurchased Property or revesting of the Reacquired
Property, as the case may be, including the execution and delivery of such other documents,
certificates, agreements, deeds and other writings and the taking of such other actions as may be
reasonably necessary to consummate such transactions.
General Provisions
17..
Applicable Law; Consent to Jurisdiction; Service of Process
17.1..
This Agreement shall be governed by, interpreted under, construed and enforced in
accordance with the laws of the State-of-law principles.
Developer and City agree that any disputes arising between them in connection with this
Agreement or in connection with or under any instrument, agreement or document provided for or
contemplated by this Agreement, including in connection with the execution of this Agreement,
the Close of Escrow or any other matter arising under, related to or in connection with this
Agreement (including a determination of any and all issues in such dispute, whether of fact or of
law) shall be tried and litigated exclusively in the Superior Court of the County of Orangein the
State, inany other appropriate court of that county, or in the United States District Court for the
Central District of California. This choice of venue is intended by Developer and the City to be
mandatory and not permissive in nature, thereby precluding the possibility of litigation between or
among Developer and the City with respect to or arising out of this Agreement in any jurisdiction
other than that specified in this Section17.1. Each Party hereby waives any right that it may have
to assert forum non conveniens or similar doctrine or to object to venue with respect to any
proceeding brought in accordance with this Section17.1, and stipulates that the State and federal
courts located in the County of Orange, in the State, shall have in personam jurisdiction and venue
over each of them for the purpose of litigating any dispute, controversy or proceeding arising out
of this Agreement. Each Party hereby authorizes and accepts service of process sufficient for
personal jurisdiction in any action against it as contemplated by this Section17.1by means of
registered or certified mail, return receipt requested, postage prepaid, to its address for the giving
of notices as set forth in this Agreement, or in the manner set forth in Section17.6(a)or (c)of this
Agreement pertaining to notice. Any final judgment rendered against a Party in any Action shall
be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions
in any manner provided by law.
Legal Fees and Costs
17.2..
If any Party to this Agreement institutes any action, suit, proceeding, counterclaim or other
proceeding for any relief against another Party, declaratory or otherwise (collectively an
Action
r or with respect to any
inaccuracies or material omissions in connection with any of the covenants, representations,
warranties or obligations on the part of the other Party to this Agreement, then the Prevailing Party
in such Action shall be entitled to have and recover of and from the other Party all costs and
expenses of the Action, including (a)
in no
event morethan $200 per hour
recovered by the Prevailing Party (as defined below) regardless of whether the City or another
Person is the Prevailing Partyand (b)costs actually incurred in bringing and prosecuting such
Decision
therein, all of which shall be deemed to have accrued on the commencement of such Action and
shall be paid whether or not such Action is prosecuted to a Decision. Any Decision entered in any
final judgment shall contain a specific provision providing for the recovery of all costs and
Costs
paragraph, Costs shall include in addition to Costs incurred in prosecution or defense of the
ert fees and costs incurred
in the following: post judgment motions and collection actions,contempt proceedings,
garnishment, levy, debtor and third party examinations,discovery,bankruptcy litigation and
Prevailing Party
Section17.2
the amounts allegedly due or performance of the covenants allegedly breached, or obtains
substantially the relief sought by such Party.
Modifications or Amendments
17.3..
No amendment, change, modification or supplement to this Agreement shall be valid and
binding on any of the Parties unless it is represented in writing and signed by each of the Parties
hereto.
Further Assurances
17.4..
Each of the Parties hereto shall execute and deliver at their own cost and expense, any and
all additional papers, documents, or instruments, and shall do any and all acts and things reasonably
necessary or appropriate in connection with the performance of its obligations hereunder in order
to carry out the intent and purposes of this Agreement.
Rights and Remedies Are Cumulative; Limitation on Damages
17.5..
Cumulative Remedies
17.5.1.. Except with respect to the rights and remedies
expressly declared to be exclusive in this Agreementor the Other Agreements, the rights and
remedies of the Parties are cumulative, and the exercise by either Party of one or more such rights
or remedies shall not preclude the exercise by it, at the same or different times, of any other rights
or remedies for the same Material Default or any other Material Default by the other Party. Except
as otherwise specifically set forth in this Agreement, and subject to Section17.5.2,wherever a
Party has a right to damages for the Material Default of another Party: (a)such damages shall be
limited to direct (actual) damages for the Material Default of the other Party, and (b)each of the
Parties, on behalf of itself and its successors and assigns, hereby expressly waives, releases and
relinquishes any and all right to any expectation, anticipation, indirect, consequential, exemplary
or punitive damages.
Limitation on Damages Payable by the City
17.5.2.. Developer acknowledges
that the City would not have entered into this Agreement if the City could become liable for
significant damages under or with respect to this Agreement and the Other Agreements.
Consequently, and notwithstanding any other provision of this Agreement, except for (a)the
Section17.5.3, and (b)Section17.2and court
costs, the City shall not be liable in damages under this Agreement or any Other Agreement to
Developer or to any Successor Owner and Developer, on behalf of itself and each Successor Owner
and each and every Person claiming by, through or under Developer or any Successor Owner
hereby waives any and all rights to claim damages of any kind or nature from the City except as
set forth in Section17.5.3. Notwithstanding the foregoing, nothing herein shall be deemed to
preclude Developer from seeking payment for amounts which the City is obligated to pay to
Developer or Escrow Holder pursuant to Sections7.4.1,7.4.4,14.2.4,15.1.2or15.3.3of this
Agreement, provided that Developer shall not be entitled to any damages in addition to the actual
amounts owed by the City to Developer pursuant to this Agreement or the Other Agreements.
Special Circumstances Where Damages may be Payable by the City
17.5.3..
Subject to Section17.5.1, the limitations on damages set forth in Section17.5.2shall not limit the
liability of the City, if any, for damages which arise out of (a)
and warranties contained in Sections3.3or17.12.2of this Agreement, provided that the amount
of any damages payable pursuant to this clause(a)shall be the lesser of (i)actual damages, or (ii)
Three Hundred Thousand Dollars ($300,000)or (b)the exercise of any of the rights reserved to
the City pursuant to Section4.1(a)(i)or(ii)and as the same shall be included in the Quitclaim
Deed.
Right to Specific Performance
17.5.4.. In the event the City is in Material Default
following the Close of Escrow, Developer shall be entitled to seek specific performance or
of clarity, in the event that the City is obligated to pay any amounts to Developer pursuant to this
Agreement, and the City fails to pay such amounts to Developer as and when required by this
Agreement, Developer shall be entitled to seek specific performance of such obligation,
notwithstanding the other provisions of this Section17.5.
Notices, Demands and Communications between the Parties
17.6..
All notices, demands, consents, requests and other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed conclusively to have
been duly given (a)when hand delivered to the other Party; (b)three (3) Business Days after such
notice has been sent by U.S. Postal Service via certified mail, return receipt requested, postage
prepaid, and addressed to the other Party as set forth below; (c)the next Business Day after such
notice has been deposited with an overnight delivery service reasonably approved by the Parties
(Federal Express, Overnite Express, United Parcel Service and U.S. Postal Service are deemed
approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as
setforth below with next-business-day delivery guaranteed, provided that the sending Party
receives a confirmation of delivery from the delivery service provider; or (d)when transmitted if
sent by facsimile transmission or email to the fax number or email address set forth below;
provided that notices given by facsimile or email shall not be effective unless either (i)a duplicate
copy of such notice is promptly sent by any method permitted under this Section17.6other than
by facsimile or email (provided that the recipient Party need not receive such duplicate copy prior
to any deadline set forth herein); or (ii)the receiving Party delivers a written confirmation of
receipt for such notice either by facsimile, email or any other method permitted under this Section.
Any notice given by facsimile or email shall be deemed received on the next Business Day if such
-Business Day. Unless otherwise
provided in writing, all notices hereunder shall be addressed as follows:
City:City of Tustin
Attn: Jeffrey C. Parker, City Manager
300 Centennial Way
Tustin, CA 92780
Fax: 714-838-1602
Email: jparker@tustinca.org
With a copy to:Woodruff Spradlin & Smart, APC
Attn: David Kendig, Esq., City Attorney
555 Anton Boulevard, #1200
Costa Mesa, CA 92626
Fax: (714) 415-1183
Email: dkendig@wss-law.com
And with a copy to:Armbruster Goldsmith & Delvac LLP
Attn: Amy E. Freilich, Esq., Special Counsel
12100 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90025
Fax: (310) 209-8801
Email: amy@agd-landuse.com
Developer:CalAtlantic Group, Inc.
Attn: Elliot Mann
President, Southern California Coastal Division
15360 Barranca Parkway
Irvine, CA 92618
Fax: (949) 789-1745
Email: Elliot.Mann@calatl.com
With a copy to:Rutan & Tucker, LLP
Attn: Kevin Brazil, Esq.
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Fax: (714) 546-9035
Email: kbrazil@rutan.com
Any Party may by written notice to the other Party in the manner specified in this
Agreement change the address to which notices to such Party shall be delivered.
Delay
17.7..
Definition of Force Majeure DelayForce Majeure Delay
17.7.1.
the occurrence of any of the following events when such event is beyond the control of the First
Party or any consultant, contractor or other Person for whom such Party may be contractually or
legally responsible, which directly, materially and adversely affects the ability of the FirstParty to
meet its non-monetary obligations under this Agreement, including thedeadlines imposed by the
Schedule ofPerformance, or the ability of Developer to Complete the Project, and which events
(or the effect of which events) could not have been avoided by due diligence and use of reasonable
efforts by the Party claiming Force Majeure Delay:
(a)Civil Unrest.An epidemic, blockade, quarantine, rebellion, war,
insurrection, act of terrorism, strike or lock-out, riot, act of sabotage, civil commotion, act
of a public enemy, freight embargo, or lack of transportation;
(b)Unforeseeable Conditions. Reasonably unforeseeable physical
condition of the Property includingthe presence of Hazardous Materials;
(c)Casualty. Fire, earthquake or other casualty, including liquefaction
resulting from an earthquake, in each case only if causing material physical destruction or
damage on the Property;
(d)Litigation. Any lawsuit seeking to restrain, enjoin, challenge or delay
any issuance of any Entitlement or seeking to restrain, enjoin, challenge, or delay
construction of the Project, which is defended by the FirstParty;
(e)Change of Law. The passage of a referendum or initiative that results
in the inability of such Party to perform its material obligations hereunder; provided that the
are governedbySection7and Section15;
(f)Weather. Unusually severe weather conditions not reasonably
anticipatable for the City of Tustin, based upon U.S. Weather Bureau climatological reports
for the months included plus a report indicating average precipitation, temperature, etc. for
the last ten (10) years from the nearest reporting station.
LimitationForce Majeure Delay
17.7.2.
matters listed Section17.7.1and specifically excludes from its definition the following matters
which might otherwise be considered Force Majeure Delay:
(a)Entitlements. The suspension, termination, interruption, denial or
failure to obtain or nonrenewal of any Entitlement, permit, license, consent, authorization
or approval which is necessary for the development of the Project, except for any such
matter resulting from a lawsuit or referendum as described in Section17.7.1(d)or (e);
(b)Foreseeable Changes in Governmental Requirements. Any change
in Governmental Requirementswhich was proposed or was otherwise reasonably
foreseeable at the Effective Date;
(c)Failure to Perform Obligations. Failure of Developer to perform any
obligation to be performed by Developer hereunder as the result of adverse changes in the
financial condition of Developeror its successors and assigns, as applicable;
(d)Failure to Provide Financial Security. Failure of Developer to
provide financial security required by this Agreement when due or to submit evidence of
financing of the Project or toperform any obligation to be performed by Developer orits
successors and assignsas the result of adverse changes in market conditions;
(e)Failure to Submit Required Documentation. Failure of the FirstParty
to submit documentationas and when required by this Agreement;
(f)Failure to Submit Basic Concept Plan,Other Plans and Entitlements.
Failure to submit a Basic Concept Plan,Design Review submittal, and/or submittals for
other Entitlements required for construction of the Improvements and/or development of
the Project on the Property when required pursuant to the Pre-Closing Schedule or the
Schedule of Performance;
(g)Failure to Maintain Required Insurance. Failure to acquire, maintain
and submit evidence of insurance policies as required by Section11;
(h)Failure to Execute Documents. Failure of the FirstParty to execute
documents; and
(i)Other Matters. All other matters not causedby the SecondParty and
not listed in Section17.7.1(a)through (f).
ProcedureFirst Party
17.7.3..
Second Party
in writing within ninety (90) calendar days from the date upon which the First Party becomes
aware of such Force Majeure Delay, generally describing the Force Majeure Delay and its date of
commencement. Upon written request from the Second Party, the First Partyshall promptly
provide the following information with respect to such Force Majeure Delay: a more detailed
description of the Force Majeure Delay, when and how the First Party obtained knowledge thereof,
the steps the First Party anticipates taking to respond to such Force Majeure Delay, and the
estimated delay resulting from such Force Majeure Delay and responseand such other information
as the Second Party may reasonable request. The extension for Force Majeure Delay shall be
granted or denied in the
Second Party in writing of its request for a given Force Majeure Delay within the ninety (90)
calendar days specified above, there shall be no extension for such Force Majeure Delay.
Extension of Time Periods
17.7.4.. Except as otherwise specifically set forth in
this Agreement, all time periods under this Agreement, including the Schedule of Performance,
relating to non-monetary obligations under this Agreement shall be extended for Force Majeure
Delay in accordance with this Section17.7, such that no Party shall be in defaultfor an excused
Force Majeure Delay.
Not Applicable to Reversion Action Trigger Dates
17.7.5.. Exceptas set forth
inSection16.4.1, the Reversion Action Trigger Dates shall not be extended for Force Majeure
Delay.
Conflict of Interest
17.8..
No appointed or elected official or employee of the City shall have any personal interest,
direct or indirect, in this Agreement nor shall any official or employee participate in any decision
relating to the Agreement which affects his interests or the interests of any corporation,
partnership, or association in which he is directly or indirectly interested.
Non-liability of City Officials and City or Developer Employees
17.9..
No electedor appointed official, representative, employee, agent, consultant, legal counsel
or employee of the City shall be personally liable to Developer,any successor or assign of
Developeror any Successor Ownerof the foregoing in the event of any Default or breach by the
City for any amount which may become due to Developer or such successors,assignsorSuccessor
Ownersonany obligation under the terms of this Agreement. No representative, agent, consultant,
legal counsel or employee of Developer shall be personally liable to the Cityor any Successor
Ownerof the Cityin the event of any Default or breach by Developer for any amount which may
become due to the City or any Successor Owner of the Cityor on any obligation under the terms
of this Agreement.
Inspection of Books and Records
17.10..
The City shall have the right at all reasonable times, upon ten (10) calendar days written
notice, to inspect the books and records of Developer pertaining to the Property as pertinent to
the purposes of this Agreement.
Consents and Approvals
17.11..
Consent
17.11.1.. In any instance in which a Party shall be requested to consent to
of the provisions of this Agreement, such consent or approval shall be given in writing. In addition,
whenever not expressly otherwise stated: (a)the City when acting in its Governmental Capacity
shall be permitted to utilize its sole discretion with respect to matters requiring its approval except
as otherwise specified in any applicable Governmental Requirements; (b)the City when acting in
its Proprietary Capacity shall not unreasonably withhold, condition or delay its approvals with
respect to matters requiring its approval hereunder; and (c)Developer shall not unreasonably
withhold, delay or condition its consent with respect to matters requiring its approval hereunder.
Deemed Submitted
17.11.2.. Any matter required by this Agreement to be
submitted to the City shall be deemed submitted upon the submittal to the City Manager or
designee.
Action Taken
17.11.3.. Following its approval by the City, this Agreement shall
be administered by any designee of the City Manager or the City Manager. Except where the
terms of this Agreement expressly require the approval of a matter or the taking of any action by
the City Council, any matter to be approved by the City shall be deemed approved, and any action
to be taken by the City shall be deemed taken, upon the written approval by the City Manager (or
designee). The City Manager ordesignee shall have the authority to issue interpretations with
respect to this Agreement and to determine whether any action requires the approval of the City
Council. All amendments or modifications of this Agreement shall require the approval of the
City Council. All waivers and extensions of time for performance under this Agreement shall be
requires a waiver to be approved by the City Council under applicable law.
No Real Estate Commissions
17.12..
17.12.1.The City shall not be liable for any real estate commissions, brokerage fees
no broker, agent or finder in connection with this Agreement or the transactions identified in this
Agreement, other than disclosed to City in writing prior to the Effective Date. Developer hereby
agrees to indemnify and hold the City and its elected and appointed officials, employees and
representatives harmless from any losses and liabilities arising from or in any way related to any
claim by any broker, agent, or finder retained by Developer regarding this Agreement or
development of the Project or the transactions identified in this Agreement.
17.12.2.The City represents that it has engaged no broker, agent, or finder in
connection with this Agreement or the transactions identified in this Agreement.
17.12.3.The indemnity set forth in Section17.12.1shall survive the termination of
this Agreement.
Date and Delivery of Agreement
17.13..
Notwithstanding anything to the contrary contained in this Agreement, the Parties intend
that this Agreement shall be deemed effective, executed and delivered for all purposes under this
Agreement and for the calculation of any statutorytime periods based on the date an agreement
between the Parties is effective, executed and/or delivered, as of the Effective Date.
Constructive Notice and Acceptance
17.14..
Every Successor Owner and each and every Person claiming by, through or under
Developer or any Successor Owneris and shall be conclusively deemed to have consented and
agreed to every provision contained herein, whether or not any reference to this Agreement is
contained in the instrument by which such Person acquired an interest in the Project or Property.
Survival of Covenants, Representation and Warranties
17.15..
Runs with the Land
17.15.1.. The covenants, representations, warranties, and
indemnities specified in this Agreement shall survive any investigation made by any Party hereto
and the closing of the transactions contemplated hereby until the termination of this Agreement.
This Agreement and the covenants, representations, warranties, releasesand indemnities specified
herein shall run with the Development Parcels, and except as provided herein, be binding upon all
Successor Owners, unless and until terminated in accordance with the terms of this Agreement.
Notwithstanding anything contained in this Agreement to the contrary, except for the express
provisions contained in the Quitclaim Deedor theSpecial Restrictions, this Agreement and the
obligations, covenants, conditions and restrictions set forth herein shall not run with that portion
of the Development Parcels Transferred to an End User, and each End User shall take title to that
portion of the Development Parcels conveyed to it free and clear of the lien or charge of this
Agreement or any of the obligations, covenants, conditions and restrictions set forth herein.
Rights of the City to Enforce
17.15.2.. The City is the beneficiary of the terms
andprovisions of this Agreement and of the covenants running with the land, for and in its own
right and for the purposes of protecting the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and the covenants running with the
land have been provided, without regard to whether the City has been, remains or is an owner of
any land or interest in the Property, the Development Parcels or in the Project. The City shall have
the right, if this Agreement or any covenants herein are breached, to exercise all rights and
remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to
enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and
any covenants may be entitled. For avoidance of doubt, the provisions of this Section 17.15shall
be included in the Quitclaim Deed and the Special Restrictions and shall apply with respect to all
covenants, representations, warranties, releases and indemnities included therein.
Construction and Interpretation of Agreement
17.16..
Construction
17.16.1.. The language in all parts of this Agreement shall in all
cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for
oragainst any Party. The Parties hereto acknowledge and agree that this Agreement has been
over a considerable period of time, that each Party has been given the opportunity to independently
review this Agreement with legal counsel, and that each Party has the requisite experience and
sophistication to understand, interpret, and agree to the particular language of the provisions
hereof. Accordingly, in the eventof an ambiguity in or dispute regarding the interpretation of this
Agreement, this Agreement shall not be interpreted or construed against the Party preparing it;
instead other rules of interpretation and construction shall be utilized. The provisions ofCalifornia
Civil Code Section1654 are specificallywaived by each Party hereto.
Effect of Invalidity or Unenforceability
17.16.2.. If any term or provision of this
Agreement, the deletion of which would not adversely affect the receipt of any material benefit by
any Party hereunder, shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby and each other term
and provision of this Agreement shall be valid and enforceable to thefullest extent permitted by
law. It is the intention of the Parties hereto that in lieu of each clause or provision of this
Agreement that is illegal, invalid, or unenforceable, there be added as a part of this Agreement an
enforceable clause or provision as similar in terms to such illegal, invalid, or unenforceable clause
or provision as may be possible.
Captions
17.16.3.. The captions of the sections and clauses in this Agreement are
inserted solely for convenience and under no circumstances are they or any of them to be treated
or construed as part of this instrument.
References to Sections, Clauses and Attachments
17.16.4.. Unless otherwise
indicated, references in this Agreement to sections, clauses and attachments are to the same
contained in or attached to this Agreement and all attachments referenced in this Agreement are
incorporated in this Agreement by this reference as though fully set forth in this Section.
Gender, Singular and Plural
17.16.5.. As used in this Agreement and as the
context may require, the singular includes the plural and vice versa and the masculine gender
includes the feminine and vice versa.
Includes and Including
17.16.6.
ut
Time of Essence
17.17..
Time is of the essence with respect to all provisions of this Agreement in which a definite
time for performance is specified; provided that the foregoing shall not be construed to limit or
deprive a Party of the benefits of any cure period or Force Majeure Delay expressly provided for
in this Agreement.
Fees and Other Expenses
17.18..
Except as otherwise provided in this Agreement, each of the Parties hereto shall pay its
connection with negotiation and preparation of this Agreement and compliance with its terms.
No Partnership
17.19..
Nothing contained in this Agreement shall be deemed or construed to create a partnership,
joint venture orany other relationship between the Parties hereto other than purchaser and seller
according to the provisions contained in this Agreement, or cause the City to be responsible in any
way for the debts or obligations of Developer.
Binding Effect
17.20..
ThisAgreement and terms, provisions, promises, covenants, conditions and restrictions
contained herein shall be binding upon and shall inure to the benefit of the Parties hereto and their
respective heirs, legal representatives, successors and assigns.
No Third-Party Beneficiaries
17.21..
This Agreement has been made and entered into solely for the benefit of the Parties to this
Agreement and their respective successors and permitted assigns. Nothing in this Agreement
confers any rights or remedies on any other Person. Nothing in this Agreement relieves or
discharges the obligation or liability of any third Persons to any Parties to this Agreement.
Counterparts
17.22..
This Agreement may be executed in two or more separate counterparts, each of which,
when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute
and shall be one and the same instrument. This Agreement shall not be effective until the execution
and delivery by the Parties of at least one set of counterparts. The Partiesagree to recognize
execution of this Agreement by facsimile or other electronically transmitted signatures; provided
that such execution by facsimile or electronic transmission shall not be effective unless a manually
executed copy of the signature page is promptly sent by U.S. Postal Service, postage prepaid or
overnight delivery service or is hand delivered to the Parties or Escrow Holder pursuant to
Section4.4. The Parties hereby authorize each other (and Escrow Holder) to detach and combine
original signature pages and consolidate them into a single identical original. Any one of such
completely executed counterparts shall be sufficient proof of this Agreement.
Duplicate Originals, Entire Agreement and Waivers
17.23..
Duplicate Originals
17.23.1.. This Agreement isexecuted in three (3) duplicate
originals, each of which is deemed to be an original.
Entire Agreement
17.23.2.. This Agreement, including the Attachments hereto,
together with the Other Agreements, constitute the entire agreement between the Parties with
respectto the subject matter hereof. Except as set forth in the last sentence of this Section17.23.2,
this Agreement and the Other Agreements supersede and replace any and all prior agreements,
proposed agreements, negotiations and communications, oral or written, relating to the subject
matter hereof and contain the entire agreement between the Parties as to the subject matter hereof
and any and all prior agreements, understandings or representations between the Parties and/or any
Developer Affiliate are hereby terminated and canceled in their entirety. Each Party hereby
acknowledges that no other Party hereto, nor its agents or attorneys, have made any promises,
representations or warranties whatsoever, expressed or implied, not contained in this Agreement
orthe Other Agreements, to induce such Party to execute this Agreement, and each Party
acknowledges that it has not executed this Agreement in reliance on any such promise,
representation or warranty not contained in this Agreement or any Other Agreements. For the
avoidance of doubt, this Agreement shall terminate and supersede the ENA, except that this
Agreement does not supersede Sections3.5,3.6,4.3.6,4.3.7,4.3.8,4.5.3,6.9.2,10.2,10.12,
or10.13of the ENA which shall remain in effect with respect to claims arising during the term of
the ENA.
No Waiver
17.23.3.. No waiver of any provision or consent to any action under
this Agreement shall constitute a waiver of any other provision or consent to any other action,
whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or
commit a Party to provide a waiver in the future except to the extent specifically set forth in
writing. All waivers of the provisions of this Agreement must be in writing and signed by the
appropriate authorities for the City and Developer and all amendments hereto must be in writing
and signed by the appropriate authorities of the City and Developer.
Confidentiality
17.24..
Non-Disclosure and Exceptions
17.24.1..Subject to the provisions of the
Public Records
California Public Records Act (Government Code Section6250[[1633,1256,1779,1313][12][,I,][Times New Roman]]et seq
Act
Developer hereby agree that each shall keep confidential information provided by the other and
denominated as confidential and will not disclose any such information to any Person without
obtaining the prior written consent of the other Party, except that (a)the City shall have the right
todisclose any information contained in any third party reports produced or obtained by Developer
and required to be disclosed by it pursuant to law;(b)Developer shall have the right to disclose
any Developer Excluded Information;(c)the City shall have the right to disclose any City
Excluded Information;(d)Developer shall have the rightto disclose to its consultants and
attorneys
diligence on the Property and performance of its obligations under this Agreement and the Other
Agreements;(e)City shall have the right to disclose to its officials, employees and City retained
consultants, attorneysand representatives all information received by it from Developer as
required to perform its obligations under this Agreement and the Other Agreements;and (f)either
Party shall have the right to disclose any information to the extent that it is legally required or
compelled to do so provided that (to the extent permitted) itprovides the other Property with prior
notice of such disclosure obligation and cooperates with such other Party (at no cost or liability to
the cooperating Party) in any attempts to obtain confidential treatment of such disclosed
s obligations pursuant to this Section17.24shall terminate upon the Close
of Escrow. Except with respect to material described in Section17.24.2
pursuant to this Section17.24shall terminate upon the Close of Escrow.
FinancialInformation
17.24.2.. Developer shall identify with specificity any
submitted financial documents which Developer wants the City to maintain as confidential
documents and a statement as to why the request is consistent and complies with the provisions of
the Public Records Act. The City shall not disseminate such information and shall take all
reasonable steps to maintain such confidentiality, including maintenance of such documents at a
non-ents, negotiators and
consultants may review the statements as necessary as long as such parties agree to maintain the
confidentiality of such statements.
Cooperation
17.24.3.. In the event that the City obtains a request pursuant to the
provisions of the Public Rsinformation which the City is
required to keep confidential pursuant to the terms of this Agreement, the City shall provide
Developer with prompt written notice thereof and the City and Developer shall cooperate at
k to avoid disclosure of such matters to the extent legally
permissible pursuant to the provisions of the Public Records Act.
Proprietary and Governmental Roles; Actions by Parties
17.25..Except where clearly
and expressly provided otherwise in this Agreement, the capacity of the City in this Agreement
Proprietary
Capacity
limited to that capacity and shall not relate to, constitute a waiver of, supersede or otherwise limit
or affect the exercise by the City of its governmental authority with respect to any matter related
to this Agreement which shall include the regulation and entitlement of theProperty pursuant to
Governmental Requirements, including enacting laws, inspecting structures, reviewing and issuing
permits, and all of the other legislative and administrative or enforcement functions of each
Governmental Capacity
Agreement shall supersede or waive any discretionary or regulatory approvals required to be
obtained from the City under applicable Governmental Requirements.
Performance of Acts on Business Days
17.26..In the event that the final date for
payment of any amount or performance of any act under the DDA falls on a day other than a
Business Day, such payment may be made or act performed on the next succeeding Business
Day.
Effectiveness
17.27.. This Agreement shall not be binding or effective unless and until
it is executed by both (i) a Division President, and (ii) either the Chief Operating Officer, Region
President or VP Real Estate Counselof Developer.
[[1028,2103,1552,2160][12][,I,][Times New Roman]][signature page follows]
IN WITNESS WHEREOF, the City and Developer have signed this Agreement as of the
date first set forth above.
CITY OF TUSTIN:
Dated:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:
Amy E. Freilich
DEVELOPER:
CalAtlantic Group, Inc. a Delaware
corporation
By:
Name:______________________
Title: ______________________
By:
Name:______________________
Title: ______________________
JOINDER OF ESCROW HOLDER
The undersigned is joining this Agreement to evidence its agreement to receive, hold and
disburse the Purchase Price Deposit in accordance with the terms of this Agreement and
otherwise to comply with the escrow instructions set forth in this Agreement.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
Name:
Title:
LIST OF ATTACHMENTS
ATTACHMENT 1GLOSSARY OF DEFINED TERMS
ATTACHMENT 2DEPICTION OFDEVELOPMENT PARCELS(TENTATIVE TRACT MAP)
ATTACHMENT 3SITE PLAN
ATTACHMENT 4PRELIMINARY TITLE REPORT
ATTACHMENT 5CITY ESTOPPEL
ATTACHMENT 6PRE-CLOSINGSCHEDULE
ATTACHMENT 7SCHEDULE OF PERFORMANCE
ATTACHMENT 8SCOPE OF DEVELOPMENTAND CONCEPT PLAN
ATTACHMENT 9HORIZONTAL IMPROVEMENTS
ATTACHMENT 10ALIST OF ENVIRONMENTAL REPORTS AND STATEMENTS
ATTACHMENT 10BENVIRONMENTAL DISCLOSURES
ATTACHMENT 11 QUITCLAIM DEED
ATTACHMENT12MEMORANDUM OF DDA
ATTACHMENT 13PUBLICLY ACCESSIBLE COMMON AREAAND PEDESTRIAN PLAZA
LOCATIONS
ATTACHMENT 14PROFIT PARTICIPATION AGREEMENT
ATTACHMENT 15CERTIFICATE OF COMPLIANCE
ATTACHMENT 16ASSIGNMENT AND ASSUMPTION AGREEMENT
ATTACHMENT 17CITY DATE DOWN CERTIFICATE
ATTACHMENT 18DEVELOPER DATE DOWN CERTIFICATE
ATTACHMENT 19CITY IMPROVEMENTS
ATTACHMENT 20SPECIAL RESTRICTIONS
ATTACHMENT 21LANDSCAPE MAINTENANCE AGREEMENT
ATTACHMENT 22LICENSE AGREEMENT
ATTACHMENT 23REPURCHASE PRICE LOT VALUES
ATTACHMENT 24MAXIMUM TAX BURDEN SCHEDULE
ATTACHMENT 25COMMON AREA PLAN
ATTACHMENT 26PHASING MAP
ATTACHMENT 27FORM OF GUARANTY
ATTACHMENT 28FORM OF GUARANTY LEGAL OPINION
ATTACHMENT 29TRANSFEREE/NEW ENTITY CERTIFICATE
ATTACHMENT 30GUARANTOR CERTIFICATE
ATTACHMENT 31PRIVATE STREETS AND SIDEWALKS
ATTACHMENT 32EQUITY FUNDING CERTIFICATE
ATTACHMENT 33AREQUEST FOR PARTIAL RECONVEYANCE
ATTACHMENT 33BFORM OF PARTIAL RECONVEYANCE
ATTACHMENT 1
GLOSSARY OF DEFINED TERMS
For purposes of this Agreement, the following capitalized terms shall have the following
meanings:
AccrueAccruing
the transpiring of an act or occurrence or a failure to
act or occur pursuant to which a legally enforceable claim could be asserted by any Person.
Action
Section17.2.
Active Negligence
to act.
Additional ALTA Coverage
Section6.4.
Additional Liability Period
(a)with respect to any Developer,for the period
of ownership of its Successor Owners unless Developer has been released with respect to such
obligations pursuant to Section2.2.3(c), and (b)with respect to Responsible Developersand
Responsible Persons, for the period of ownership of its Successor Owners acquiring pursuant to
Permitted Transfer under Sections2.2.2(a)or(b).
Agreement
including all Attachments attached hereto.
ALTA Policy
of insurance as such term is used in Section6.2.
Approved Developer
ll mean (a) prior to the Merger, CalAtlantic Group Inc., and
(b) following the Merger the New EntityControlled by Lennar Corporation, and thereafter, any
Transferee that has been approved by the City in accordance with Section2.2.3, but specifically
excluding anyTransferee pursuant to a Permitted Transfer under Section2.2.2.
Approved Plans
Section8.4.7.
Assignment Agreement
Developer and a proposed Transferee or New Entity, which shall be substantially in the form and
substance of the instrument attached hereto as Attachment16.
Base Closure Law
Section1.1.1.
Base Purchase Price
Section4.2.1.
Basic Concept Plan
shall mean the submittals by Developer to the City for purposes of
satisfaction of the Design Review approval and shall include the phasing and proposed product
mix, provided that Basic Concept Plan submittals shall be reviewed by the City in its Proprietary
Capacity (as opposed to the Design Review submittal which are reviewed by the City Development
Department under the Governmental Capacity of the City.)
Section11.1.1.
Bill of Sale
shall have the meaning set forth in Section7.2.1(a)(x).
Boundary Landscape Area
mean that certain property owned by the City and/or
Developer between the back of curb on each public street adjoining the Development Parcels and
theBuildings or private low walls/patio areas, as depicted ontoAttachment21and
shall include the landscaping within such area installed as of the Effective Date.
BRE
Section2.2.7.
Building
shall mean each building and structure on the Development Parcels, including
each building containing rowtownhomes or motor court flats and each single family detached
residence.
Business Day(s)
specifically exclude Fridays when City Hall is officially closed, Saturday, Sunday or a legal
holiday.
Cancellation of the Merger
certain Agreement and Plan of Merger dated October 29, 2017 between Initial Developer and
Lennar Corporation as disclosed in that certain Form 8-K filing with the Securities and Exchange
Commission made on October 29, 2017, as the same may be amended.
CC&Rs
Section13.1.
CEQA
regulations and guidelines, contained in Cal. Public Resources Code Section21000[[2018,2016,2162,2073][12][,I,][Times New Roman]]et seq [[2137,2016,2300,2073][12][,,][Times New Roman]].,
and
Cal. Code of Regulations, Title 14, Section15000[[1313,2073,1453,2130][12][,I,][Times New Roman]]et seq [[1428,2073,1757,2130][12][,,][Times New Roman]]., respectively.
Certificate of Compliance
construction and development required to be undertaken by Developer in accordance with this
Agreement as described in Section9.2.
City
powers and responsibilities as described in Section1.4.1.
City Attorney
Attorn.
City Closing Conditions
Section7.2.2.
City Code
may be amended from time to time.
City Costs Deposit
Section1.8.2.
City Council
legislative body.
City Deed of Trust
to secure the obligations of Developer under the Profit Participation Agreement, which shall be in
the form and substance of the deed of trust and assignment of rents attached to the Profit
Participation Agreement as Exhibitto by the City in its sole
discretion.
City Estoppel
of that attached hereto as Attachment5,to be executed and delivered by the City to a Transferee
or to a Successor Owner.
City Excluded Information
(a)known by the City prior
to the disclosure thereof by Developer or its officers, employees, agents, attorneys, affiliates,
representatives, contractors, successors or assigns;(b)developed by or on behalf of the City
without the use of any confidential information provided by Developer or its officers, employees,
agents, attorneys, affiliates, representatives, contractors, successors or assigns;(c)disclosed to the
City by a third party other than Developer or any of its officers, employees, agents, attorneys,
affiliates, representatives or contractors;or (d)known to the public through no act or fault of the
City in violation of this Agreement.
City Hall
the City of Tustin, presently located at
300 Centennial Way, Tustin, California.
City Improvements
the construction of Moffett Drive between Park Avenue
and Tustin Ranch Road including any and all infrastructure and utilities associated withthe
foregoing,as further described and depicted on Attachment19.
City Indemnified Parties
mean the City and its appointed and elected officials,
agents, attorneys, affiliates, employees, contractors, consultantsand representatives.
CityInspections
Section16.5.1.
City Lien
Section16.2.
City Manager
designee as identified in writing by the City Manager.
City Premium
shall mean the premium attributed to theso-called standard coverageor
CLTA coverageportion of the ALTA Policyin the face amount of the Base Purchase Price, less
One Thousand Dollars ($1000).
CityReleased Parties
mean City and its elected and appointed officials,
employees, agents, attorneys, affiliates, representatives, consultants, contractors, successors and
assigns, collectively.
City Releasing Party
shall have the meaning set forth in Section16.6.4.
CityRepresentatives
Section3.3.
City Repair Acknowledgement
shall have the meaning set forth in Section16.5.2.
CityReserved Claims
Section16.6.3.
CityReserved Rights
Section16.6.2.
CityTitle Policy
shall have the meaning set forth inSection7.4.6(c).
City Transaction Expenses
Section1.8.2.
ClaimClaims
claims, actions, causes of action, demands,
orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses
costs and expenses attributable to compliance with judicial and regulatory orders and requirements,
fines, penalties, liens, taxes, or any type of compensation whatsoever, direct or indirect, known or
unknown, foreseen or unforeseen.
Close of EscrowClose EscrowClosing
or
Property and the transfer of fee title to the Property by the City to Developer pursuant to the
Quitclaim Deed, and execution and recordation (to the extent that such Other Agreements are to
be recorded pursuant to the terms of Section7.4.6(b))of the Other Agreements and additional
documents associated therewith, as more fully set forth in Section7, which shall take place on the
Closing Date.
Closing Conditions
ns and the City Closing
Conditions.
Closing Date
Section7.1.1.
Common Area Improvements
theImprovements on the Common Area and
shall include the Publicly Accessible Common Area Improvements,Private Streets and Sidewalks,
Buildings, structures and improvements, includingrestrooms, parking lots, swimming pools,
Landscape Improvementsand other landscaping, roadways, drives, bike paths, alleyways,
sidewalks, utilities, courtyards, hardscaping, fountains and other infrastructure and other amenities
of the Project to be available for and used in common by the owners of Homes on the Development
Parcelsas approved in the Approved Plans.
Common Area
proposed to be owned by the Home
pursuant to the CC&Rsfor the benefit of all Homebuyers,upon which land the Common Area
Improvements are proposed to be located, which areas are generally depicted onthe Common Area
Plan attached as Attachment25
.
CompleteCompletedCompletion
shall mean: (a)with respect to the Project
or the point in time when all of the following shall have occurred with respect to the Project: (i)the
Improvements with respect thereto have been completed in accordance with this Agreement;
(ii)the issuance of a permanent certificate of occupancy by the City or, to the extent a certificate
of occupancy is not required by the City for a particular Improvement, the equivalent final
inspection, signoff or other permit activity with respect to such Improvementhas been issued by
the City and/or any other Governmental Authority with jurisdiction over such Improvement,
(iii)the Recording of a Notice of Completion pursuant to California Civil Code Section8182by
Developer, its Successor
but not public Improvements; and (iv)any Construction Liens that have been recorded or delivered
have been paid, settled or otherwise extinguished, discharged, released, waived, bonded around or
insured against and (b)with respect to a particular Improvement, (i)the Improvement has been
completed in accordance with this Agreement; and (ii)the issuance of a permanent certificate of
occupancy by the City or, to the extent a certificate of occupancy is not required by the City for a
particular Improvement, the equivalent final inspection, signoff or other permit activity with
respect to such Improvementhas been issued by the Cityand/or any other Governmental Authority
withjurisdiction over such Improvement.
Conditions Precedent
of Compliance set forth in Section9.3.
Condominium Plan
the condominium planscreating the individual units on
the Condominium Planapproved by BRE and[[1239,1716,1289,1773][12][,I,][Times New Roman]], [[1267,1716,2299,1773][12][,,][Times New Roman]]with respect to conformity with Approved Plans
only,approved by the City.
Construction Liens
havethe meaning set forth in Section8.12(e).
ControlControlledControlling
Person, shall mean
the possession, directly or indirectly (including through one or more intermediaries), of the power
to direct or cause the direction of the management and policies of such Person, including through
the ownership or control of voting securities, partnership interests, membership interests, or other
equity interests, acting as the manager of a limited liability company, or otherwise.
Controlling Person
(a)any Person who Controls Developer and (b)any
Person who Controls a Controlling Person; provided that prior to the Merger, Initial Developer
shall either be Developer or shall be the Controlling Person of Developer and following the
Merger, Lennar Corporationshall be the Controlling Person of Developer, unless a Transfer of
Control is approved by the City to another Person approved by the City in accordance with
Section2.2.3.
Costs
Section17.2.
Counsel
Section10.8.
DA
shall have the meaning set forth in Section1.6.
Decision
Section17.2.
Default
Default Notice
Section14.1.
Default Rate
annually, but in no event in excess of the maximum legal rate.
Defaulting Party
Section14.1.
Defect Notice
ave the meaning set forth in Section16.5.2.
Defending Party
Section10.8.
Defended Party
Section10.8.
Deposit Return Event
following:
(a)Afailure to close Escrow on the Closing Date solely as a result of a Default
by the City in the performance of its obligations under this Agreementprior to the Close of
Escrow for which Developeris entitled to and does exercise its remedies set forth in
Section15.3;
(b)issuance by Developer of a Diligence Termination Notice pursuant to
Section5.1;
(c)a failure by the City to deliver closing documentsand instruments required
under Section7.2.1(a)on or before the Outside Closing Date if all other City Closing
Conditions and Developer Closing Conditions are either satisfied or are waived by the
benefited Party;or
(d)a failure to close Escrow on or before the Outside Closing Date,as the same
may be extended by the City in its sole discretion pursuant to Section7.1.1,as a result of
the failure by the City to have satisfied or waived Section7.2.2(g), requiring District
formation and Final Approval(provided the same is not caused by a Default by Developer
with respect to Section8.7.3(g)); or
(e)a failure to close Escrow on or before the Outside Closing Dateas a result
ofa failure of any one of the following Developer Closing Conditions:
(i)Section7.2.1(b), as a result of a City election or deemed election not
to cure a Disapproved Exception as set forth in Sections6.2or6.3,or
(ii)Section7.2.1(c), as a result of the existence of any agreement
entered into by the City other than a Permitted Exception that would survive the Close of Escrow
and of which Initial Developeror any subsequent Developerhad no knowledge at the time of the
expiration or earlier termination of the Due Diligence Period, or
(iii)Sections7.2.1(h)or(i)prior to the License Agreement Effective
Date; or
(iv)Section7.2.1(j)if the City is unable to make a representation or
warranty set forth in Section3.3if the occurrence of a change in a representation and warranty is
materially adverse to Developer or the Property; or
(v)Section7.2.1(l)if the City is unable to enter into a TUSD Agreement
on or before the Outside Closing Date, as the same may be extended by the City in its sole
discretion pursuant to Section7.1.1.
Design Review
required by the
City Codeand the Specific Plan, which shall be part of the Entitlements.
Developer
CalAtlantic Group, Inc.as of the Effective Date of the Agreement,
andfollowing any Transfer pursuant to a Permitted Transfer or any other Transfer authorized by
this Agreement and approved by the City,the Transferee or, following any Mergerauthorized by
this Agreement, the New Entity.
Developer Affiliate
, following Cancellation of the Merger,any Person that
Controls, is Controlled by or is under common Control withCalAtlantic Group, Inc., or following
the Merger, any Person that Controls, is Controlled by or is under common Control withLennar
Corporation.
Developer Closing Conditions
Section7.2.1.
Developer Closing Payment
Section4.3.3.
Developer Excluded Information
(a)known by
Developer prior to the disclosure thereof by the City or its elected and appointed officials,
employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns;
(b)developed by or on behalf of Developer without the use of any confidential information
provided by the City orits officers, employees, agents, attorneys, affiliates, representatives,
contractors, successors or assigns;(c)disclosed to Developer by a third party other than the City
or any of its elected and appointed officials, employees, agents, attorneys, affiliates,
representatives or contractors;or(d)known to the public through no act or fault of Developer in
violation of this Agreement.
Developer Insolvency Event
Section2.2.5.
Developer Knowledge Parties
mean (a)with respect to the Initial Developer, the
Key Employees of Initial Developerand ,and
(b)following any Transfer or Merger, shall mean individuals in positions of responsibility and
involvement in the Project atthetime any representations and warranties are to be made who hold
positions of authority commensurate with the positions held by the Developer KnowledgeParties
of the Initial Developer as of the Effective Date, and with respect to the New Entity, shallinclude
at least one individual who was identified as a Developer Knowledge Parties of the Initial
Developer.
Developer Released PartyDeveloper Released Parties
shall have the meaning
set forth in Section16.6.4.
Developer Releasing Party
shall have the meaning set forth in Section4.5.2(f).
Developer Representatives
Section5.4.
Developer Title Endorsements
Section6.4.
Development Costs
t forth in Section8.1.3.
Development Parcels
Section1.2.1.
Development Permits
Governmental Authority in connection with construction of the Project and shall include any
grading permit, foundation permit, construction permit, building permit or other permit type as
may be necessary pursuant to Chapter 4 of the Specific Plan and/or the City Code.
Diligence Termination Notice
h in Section5.1.
Disapproved Exception
Section6.3.
Disposition Strategy
Section1.1.5.
District
Section8.7.3.
DTSC
California Department of Toxic and Substance Control.
Due Diligence Information
relating to the Property furnished to Developer by the City, or its elected and appointed officials,
employees, agents, attorneys, affiliates, representatives, contractors or consultants, in connection
Section5.1of this Agreement.
Due Diligence Period
Section5.1.
EBS
et forth in Section4.5.1(b)(iii).
Effective Date
.
ENA
Section1.1.6.
ENA Deposit
Section1.8.1.
ENA Transaction Expenses
Section1.8.1.
End User
shall mean any (a)Homebuyer who purchases a Home;(b)
Association with respect to any Common Areawithin the Property conveyed to the
Association,(c)utility or Governmental Authority with respect to any transfer of portions of the
Property or grants of easements affecting the Development Parcels desirable for the development of
the Development Parcelsand/or (d)any lighting or landscaping district.
Entitlements
required by the City or any other Governmental Authority as a condition of subdivision and
development of the Property and construction of Improvements and shall include any and all
entitlements, licenses, permits, tract maps or other approvals required by the City or any other
Governmental Authority as a condition to development of the Property and construction of the
Improvements, but excluding Development Permits, including those specific Entitlements
described in Section8.3.1.
Environmental Agency
Agency; the California Environmental Protection Agency and all of its sub-entities, including any
Regional Water Quality Control Board, the State Water Resources Control Board, the DTSC, the
South Coast Air Quality Management District, and the California Air Resources Board; the City;
any Fire Department or Health Department with jurisdiction over the Property; and/or any other
federal, State, regional or local governmental agency or entity that has or asserts jurisdiction over
Hazardous Substance Releases or the presence, use, storage, transfer, manufacture, licensing,
reporting, permitting, analysis, disposal or treatment of Hazardous Materials in, on, under, about,
or affecting the Project.
Environmental Indemnity
forth in Section10.2.
Environmental Laws
shall mean any federal, state, regional or local laws, ordinances,
rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence
as of the Effective Date or as later enacted, promulgated, issued, modified or adopted,regulating
or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory
decrees, judgments and orders and common law, including those relating to industrial hygiene,
public safety, human health, or protection of the environment, or the reporting, licensing,
permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage,
discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous Materials.
Environmental Laws shall include the Comprehensive Environmental Response, Compensation
CERCLA
and Liability Act of 1980, as amended (42 U.S.C. Section9601,[[1689,2341,1838,2398][12][,I,][Times New Roman]]et seq
Resource Conservation and Recovery Act, as amended, (42 U.S.C. Section6901[[2089,2398,2245,2455][12][,I,][Times New Roman]]et seq [[2221,2398,2300,2455][12][,,][Times New Roman]].)
RCRA
Water Pollution Control Act, as amended, (33U.S.C. Section1251[[2095,2456,2232,2513][12][,I,][Times New Roman]]et seq [[2207,2456,2300,2513][12][,,][Times New Roman]].);
the Toxic Substances Control Act, as amended, (15 U.S.C. Section2601[[1785,2513,1927,2570][12][,I,][Times New Roman]]et seq [[1903,2513,2300,2570][12][,,][Times New Roman]].); the Hazardous
Substances Account Act (Chapter6.8 of the California Health and Safety Code Section25300[[2214,2571,2300,2628][12][,I,][Times New Roman]]et
[[300,2628,392,2685][12][,I,][Times New Roman]]seq [[367,2628,1230,2685][12][,,][Times New Roman]].); Chapter 6.5 commencing with Section [[1218,2628,2208,2685][12][,,][Times New Roman]]25100
(Hazardous Waste Control) and Chapter [[2187,2628,2300,2685][12][,,][Times New Roman]]6.7
commencing with Section25280 (Underground Storage of Hazardous Substances) of the
California Health and Safety Code; and the California Water Code, Sections13000[[1976,2743,2116,2800][12][,I,][Times New Roman]]et seq [[2091,2743,2141,2800][12][,,][Times New Roman]].
Environmental Matters
shall mean (a)the environmental condition of the Property;
(b)the compliance of the Propertywith Environmental Laws;(c)the existence, Release,
threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous
Materials at any time on, in, under, or from, the Propertyor any current or future improvement
thereon or any portion thereof, and/or (d)Claims of or acts or omission to act of any Governmental
Authority or any other third party arising from or related to any actual, threatened, or suspected
Release of a Hazardous Material on, in, under, or from, about, or adjacent to the Propertyor any
current or future improvement thereon, including any Investigation or Remediation at or about the
Propertyor any current or future improvement thereon; provided that in each case in which the
property in question is the Returned Property, the foregoing shall apply as to the Returned Property
only.
Equity FundingCertificate
Section2.2.2(b).
Escrow
Section4.4.
Escrow Holder
Federal Deeds
shall mean (a) that certain Quitclaim Deed H and Environmental
Restriction Pursuant to Civil Code Section1471 dated May 13, 2002, that was Recorded on May 14,
2002 as Instrument Number 20020404598, and (b) that certain Quitclaim Deed for Parcels II-G-5
and II-H-9 and Environmental Restriction Pursuant to Civil Code Section 1471 dated March 26,
2003, that was Recorded on May 9, 2003 as Instrument Number 2003000533361.
Federal Government
avy), by
and through the Secretary of the Navy, or designee.
Final EIS/EIR
shall have the meaning set forth in Section1.1.2.
Final Map
shall mean the final tract map for the Property which shall be substantially
in the form and content required by theapproved Tentative Tract Map, unless otherwise approved
by the City in its Governmental Capacity and by the City in its Proprietary Capacity, in each case
in its sole discretion.
Finally Approved
shall mean, with respect to each District described by this Agreement,
thatthe City Council has approved the formation of such District, that the property owners having
a vote shall have voted to approve such formation and all applicable appeal and statute of
limitations periods relating thereto shall have expired without the filing of any appeal or legal
challenge or any such appeal or legal challenge shall have been resolved in a manner that permits
formation of each in a manner acceptable to the City in its sole discretion.
Financing Plan
eaning set forth in Section4.6.1.
FIRPTA Affidavit
Property Act.
First Party
e the meaning set forth in Section17.7.3.
Five Point
Section2.2.1(c).
Force Majeure Delay
Section17.7.1as limited by
Section17.7.2.
FOST
shall mean the Department of Navy findings and determinations that the
Development Parcels were suitable for transfer to the City, pursuant to the document entitled
27, 28, 40 and 41 Marin
of Suitability to Transfer for a Portion of Parcel 1 (CO-11) and Portions of Parcels 16, 27, and 40
(CO-8) Former Marine Corps Air Station Tustin, California dated December 17, 2002.
General Plan
Governmental Authorityand Governmental Authorities
shall mean, respectively,
each and all federal, State, county, municipal and local governmental and quasi-governmental
bodies and authorities (including the United States of America, the Stateand any political
subdivision, public corporation, district, joint powers authority or other political or public entity)
or departments thereof having or exercising jurisdiction over the Parties, the Project, the Property
or over any property owned by the City upon which work is conducted by or on behalf of
Developer in connection with construction of the Project or such portions of the foregoing as the
context indicates.
Governmental Capacity
Section17.25.
Governmental Successors
shall meaneach and every Person that is a successor and
assign of the City that is a governmentalentity or association.
Governmental Requirements
regulations, standards, guidelines and other requirements issued by any Governmental Authority
having jurisdiction over, governing, applying to or other affecting the Parties, the Project, the
Improvements, the Property or any component thereof or over any property owned by the City
upon which work is conducted by or on behalf of Developer in connection with construction of
the Project and including the City Code, the Specific Plan, the Entitlements, the Development
Permits and the Approved Plans.
Grading Work
Developer under the terms of this Agreement and any Subdivision Improvement Agreement
entered into in connection with the Tentative Tract Map, which shall include rough and precise
grading of the Development Parcels, including grading of all internal streets, access points, the
LandscapeAreaandthe Common Areaand blue-topping of all Phases and development pads
within the Development Parcels, as further depictedonAttachment9.
Guarantor
shall mean Lennar Corporation (so long as it is a publicly traded entity) or
such other Person(s)with assets meeting the requirements of the City and sufficient, in the
determination of the City in its sole discretion, to secure the development, construction and
maintenance obligations of Developer or any Transferee under thisAgreement.
Guarantor Certificate
Section4.6.7(b).
Guarantor Illiquidity Event
Section4.7.2.
Guaranty
attached as Attachment27or as otherwise approved by the City in its sole discretion in which the
City is a named beneficiary, made by the specified Guarantor(s)and guarantying payment for all
Development Costs (except as may be specifically excluded by the terms of the Guaranty) the
faithful performance and completion (within the respective times provided in this Agreement) of
the respective portions of the Project and the Improvements, or components thereof, and the other
matters described herein in accordance with this Agreement.
Hazardous Materials
Hazardous SubstanceHazardous MaterialHazardous Waste
(a)
Toxic Substance
Liability Act of 1980, 42 U.S.C. subsection9601,[[1304,1356,1444,1413][12][,I,][Times New Roman]]et seq [[1419,1356,2300,1413][12][,,][Times New Roman]]., the Hazardous Materials Transportation
Act, 49 U.S.C. subsection5101,[[986,1413,1133,1470][12][,I,][Times New Roman]]et seq [[1109,1413,2300,1470][12][,,][Times New Roman]]., or the Resource Conservation and Recovery Act,
42
U.S.C. subsection6901,[[796,1471,936,1528][12][,I,][Times New Roman]]et seq [[911,1471,974,1528][12][,,][Times New Roman]].;
Extremely Hazardous WasteHazardous Waste
(b)
Restricted Hazardous Waste
25115, 25117, or 25122.7 of the California
Health and Safety Code, or is listedor identified pursuant to subsection25140 or 44321 of the
California Health and Safety Code;
Hazardous MaterialHazardous SubstanceHazardous Waste
(c)
Toxic Air ContaminantMedical Waste
25281, 25316, 25501,
25501.1, 117690 or 39655 of the California Health and Safety Code;
OilHazardous Substance
(d)
Section311 of the Federal Water Pollution Control Act, 33 U.S.C. Section1321, as well as any
other hydro carbonic substance or by-product;
Hazardous WasteExtremely Hazardous
(e)
WasteAcutely Hazardous Waste
Code of Regulations;
(f)Listed by theStateas a chemical known by the State to cause cancer or
reproductive toxicity pursuant to Section25249.8of the CaliforniaHealth and Safety Code;
(g)A material which due to its characteristics or interaction with one or more
othersubstances, chemical compounds, or mixtures damages or threatens to damage, health,
safety, or the environment, or is required by any law or public agency to be remediated, including
remediation which such law or public agency requires in order for the property to be put to any
lawful purpose;
(h)Any material whose presence would require remediation pursuant to the
guidelines set forth in the StateLeaking Underground Fuel Tank Field Manual, whether or not the
presence of such material resulted from a leaking underground fuel tank;
(i)Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. subsection136[[893,746,1033,803][12][,I,][Times New Roman]]et seq [[1008,746,1071,803][12][,,][Times New Roman]].;
(j)Asbestos, PCBs and other substances regulated under the Toxic Substances
Control Act, 15 U.S.C. subsection2601[[1108,911,1248,968][12][,I,][Times New Roman]]et seq [[1223,911,1286,968][12][,,][Times New Roman]].;
(k)
--h-
however produced, regulated under the Atomic Energy Act, 42U.S.C. subsection2011[[2040,1191,2179,1248][12][,I,][Times New Roman]]et seq [[2153,1191,2300,1248][12][,,][Times New Roman]].,
the
Nuclear Waste Policy Act, 42U.S.C. subsection10101[[1483,1248,1555,1305][12][,I,][Times New Roman]]et [[1532,1248,1661,1305][12][,I,][Times New Roman]]seq., [[1645,1248,2300,1305][12][,,][Times
New Roman]]or pursuant to the California
Radiation Control Law, California Health and Safety Code Section114960 [[1815,1306,1955,1363][12][,I,][Times New Roman]]et seq [[1930,1306,1993,1363][12][,,][Times New Roman]].;
(l)Regulated under the Occupational Safety and Health Act, 29U.S.C.
subsection651[[616,1471,761,1528][12][,I,][Times New Roman]]et seq [[736,1471,2299,1528][12][,,][Times New Roman]]., or the California Occupational Safety and Health Act, California
Labor
Code subsection6300[[754,1528,894,1585][12][,I,][Times New Roman]]et seq [[869,1528,1069,1585][12][,,][Times New Roman]].; and/or
(m)Regulated under the Clean Air Act, 42 U.S.C. subsection7401[[2063,1636,2135,1693][12][,I,][Times New Roman]]et [[2111,1636,2203,1693][12][,I,][Times New Roman]]seq [[2178,1636,2300,1693][12][,,][T
imes New Roman]]. or
pursuant to Division 26 of the California Health and Safety Code.
High Quality Residential Project
either attached or
detached individually owned Homes that is of high quality and very well maintained and managed,
in each case comparable to other high qualitycondominium orsingle-family developments in the
City of Tustin and the City of Irvine of similar age.
High Quality Residential Standards
standards consistent with a High Quality Residential Project.
HomeHomes
row townhome,motor court flatand single-family
home and related improvements that are to be developedon the Development Parcels, as
contemplated by the Scope of Developmentand as further depicted on the Recorded Condominium
Plan(s).
Homebuyer
detached
or attached Homefor use as a single-family residence.
Section2.2.7.
Horizontal Improvements
(a)the Grading Work;(b)all local on-site
infrastructure improvements and utilities and utility systems required to be constructed or installed
on or in connection with the development of the Property including (i)all Private Streetsand
Sidewalks, roadways, drives, bike paths, alleyways, sidewalks, courtyards,hardscaping, fountains
and parking lots within the Property,and alltraffic and circulation mitigation to support the
Project;(ii)all utilities and utility systems required for the Project to the boundary of each Phase,
including domestic and reclaimed water; sewer; telemetry; utilities (electricity, gas, telephone,
cable, telecommunications, etc.) and other infrastructure normally required to service a new, High
QualityResidential Project;and(iii) main line utilities for the Project to the boundary of the
Property(which mainline utilities shall not be Phased Improvements even though located within
property comprising one or more of the Phases of the Development Parcels);(c)installation of all
Landscape Improvementswithin the Boundary Landscape Area and Lot A;and (d) certain grading
and improvements to be carried out uponCity-owned property adjoining the DevelopmentParcels
pursuant to encroachment permit to be obtained by Developer from the City in its Governmental
Capacity, including relocation of the Victory Road entry,restorationofexisting sidewalks and
landscaping within the portion of the Boundary Landscape Area owned by the City and installation
of landscaping adjacent to Moffett Drive following completion by the City of the City
Improvements, butHorizontalImprovementsshall exclude the Phase Improvements.
Horizontal Improvement Costs
and for avoidance of
doubtshall exclude any Developer overhead, general administration, or financing costs associated
with the Horizontal Improvements:
(a)Site Improvement and Entitlement. Improvement costs (hard costs)
actually expended for the Horizontal Improvements constructed in accordance with City standards
and accepted by the City, includingfor engineering, consultants, bonds, grading, wet utilities, dry
utilities, street improvements, walls and fences, landscaping, and common area and recreational
facilities, and all costs to obtain, alter or amend any entitlements for the Project or to record the
Final Map, and reasonable costs for the foregoing to the extent contracted for by Developer with
any Developer Affiliate.
(b)Indirect Construction. Reasonable indirect construction costs
actually expended for Horizontal Improvements, includingpermits and fees, architecture,
engineering, inspections, on-site construction supervision, construction trailer, security, repair and
replacement, and other site costs associated with the construction of the Horizontal Improvements.
(c)Direct Construction. The actual costs of construction materials,
equipment rental, labor and subcontractors for the construction of the Horizontal Improvements.
(d)Insurance. An agreed amount equal to one half of onepercent (.50)
of the total costs set forth in clauses(a)through(c)of this definition of Horizontal Improvement
Costs to compensate Developer for insurance costs related to the Horizontal Improvements.
(e)Other Allocable Costs. Any other actual costs properly and directly
allocable specifically to the development, construction,maintenance and/orrepair of the
Horizontal Improvements.
Improvements
Section1.3.3.
Initial Developer
shallhave the meaning set forth in Section2.1.
Initial Satisfaction Date
(a)(i)the Due Diligence
Period has terminated without delivery by Developer of a Diligence Termination Notice or (ii)if
prior to the date upon which the Due Diligence Period has terminated by its terms, Developer has
provided a written waiver of the Due Diligence Period and of its right to terminate this Agreement
pursuant to Sections5.1,5.3and6.2;(b)the Developer Closing Conditions in
Sections7.2.1(d),(e)and(f),have been waived by Developer or have been satisfied;(c)theCity
Closing Conditions in Sections7.2.2(c),(d),(f),(h),(j)and(k)have either been waivedby the
City or have been satisfied; (d)fully executed PerformanceBonds required to be delivered
pursuant to Sections7.2.2(e) and8.9.1shall have been delivered to the City by Developer; (e)the
Final Map has been approved by the City Council (such that the only condition to satisfaction of
theDeveloper Closing Condition in Section7.2.1(g)and to the City Closing Condition in
Section7.2.2(e)is the approval of the Final Map by the Countyand Recording of same); and (e)as
of such date, neither City nor Developer is in Potential Default orMaterial Default under this
Agreement and Developer is not in default under the License Agreement.
Injured Party
Section14.1.
Intangible Property
policies maintained by or for the benefit of the City) and all permits, licenses, approvals and
authorizations issued by any Governmental Authorities in connection with the Development
Parcels; but with respect to the Navy Responsibilities shall be a non-exclusive assignment of rights
and shall not be deemed an assignment or release by the City of its rights against any responsible
party or against the Federal Government or any third party with respect to the Navy
Responsibilities.
Investigation(s)
monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying
of or concerning the Property, including the air, soil, surface water, and groundwater, and the
surrounding population or properties, or any of them, to characterize or evaluate the nature, extent
or impact of Hazardous Materials.
Inventory Commitment
Section8.9.3.
IRWD
Key Employees
Initial Developer: Michael
Battaglia and Gary Jones;provided that following any Transfer, Transfer of Control or Merger,
the Transferee or New Entity shall specify its Key Employees.
Landscape Area
(a) the Publicly Accessible Common Area and (b) the
Boundary Landscape Area.
Landscape Improvements
shall mean any and all landscaping, irrigation and/or
hardscape improvements required by the Approved Plans to be constructed in connection with the
Project upon the Landscape Area.
Landscape Maintenance Agreement
shall have the meaning set forth in Section12.8.1.
Legal Opinion
Section2.2.2(a)(vii).
License Agreement
Section8.2.3.
License AgreementEffective Date
Section8.2.3.
Lien Release Amounts
(a)of any City Lien and
(b)required to be paid to third parties by the City to clear all monetary liens (including all
Construction Liens) and Mortgages that encumber the Property on the date of a Reversion Event
or the date of the close of escrow pursuant to the Right of Purchase and which, with respect to
taxes and assessments, are then due and payable.
Liquid Assets
meanassets held in the form ofcash, marketable securities and other
cash equivalents.
Liquidity Covenants
Section4.7.1.
Lot(s)
following
recording of the Final Mapand shall include parcels upon which Homes and Buildings are located
and parcels designated as Common Area.
Material Default
Sections14.2.1and14.2.2.
Maximum Tax Burden Schedule
nSection8.7.3(b).
MCAS Tustin
Section1.1.1.
Merger
certain Agreement and Plan of Merger
dated October 29, 2017 between Initial Developer and Lennar Corporationas disclosedin that
certain Form 8-Kfiling with the Securities and Exchange Commission made on October 29, 2017,
as the same may be amended, pursuant to which Initial Developer shall be merged into New Entity
pursuant to the above-referenced Agreement and Plan of Merger.
Memorandum of Agreement
Section1.1.3.
Memorandum of DDA
against the Property substantially in the form and substance of the memorandum attached to the
Agreement as Attachment12.
Minimum Liquidity Standards
meaningset forth in Section 4.7.1.
Models
shall mean thethirteen (13) model Homes, comprised of three (3)model Homes
for the row townhome units, five (5) model Homes for the motor court units for (5) model Homes
for the single family unitsto be constructed by Developer on the Development Parcels in the
location shown on Attachment3.
Mortgage
ble
or tax exempt funds from a governmental agency or other security interest affecting the
Development Parcels or any portion thereof and the documents governing a sale-leaseback
transaction, together with all loan documents related thereto, but excludingany community
facilities districts, service districts, assessment districts, landscape and lighting districts,
Authority.
Mortgagee
ciary (or any agent for one or more lenders
acting in such capacity) under any indenture of mortgage, deed of trust, trustee of bonds,
governmental agency which is a grantor of funds, and, with respect to the Property or any portion
thereof which is the subject of a sale-leaseback transaction, the Person acquiring fee title.
Navy
Navy Responsibilities
Section4.5.2(c).
Net Worth
which shall be determined based on
(a) the fair market value of the assets of each of the Persons comprising Guarantor (including the
and/or indirect
limited partners, and intangible assets including goodwill, intellectual property, licenses,
organizational costs, deferred amounts, covenants not to compete, unearned income, restricted
funds, investments in subsidiaries or other Affiliates, intercompany receivables and accumulated
depreciation), less (b)all liabilitiesof the Persons comprising Guarantor (as determined in
accordance with GAAP).
New Entity
wholly owned direct or indirect subsidiary of Lennar
Corporation which shall continue as the surviving corporationas a result of the Merger
Notice of Completion
Completion of each Improvement, pursuant to California Civil Code Section8182.
Opening of Escrow
Section4.4.
Original ALTA Coverage
Section6.4.
Other Agreements
Memorandum of DDA, the DA, theLicense Agreement,the Landscape Maintenance Agreement,
theProfit Participation Agreementand the City Deed of Trust.
Outside Closing Date
Section7.1.1.
Party
shall mean either of the City or Developer, individually, as parties to this
Agreement.
Parties
City and Developer, collectively.
Pedestrian Bridge
Section12.10.
PedestrianPlaza
shall mean the portion of LotAgenerally in the locationdepicted as
onAttachment13.
Performance Bonds
Stateand regulated by the StateDepartment of Insurance, Best's Rated "A" and otherwise
acceptable to the City Manager and City Attorney in their sole discretion, in which the City is a
named obligee. The Performance Bonds shall guarantee payment for and faithful performance
and Completion within the respective times provided in this Agreement of the Horizontal
Improvements in accordance with drawings or plans, as appropriate, that specifically describe the
work to be performed in sufficient detail for the issuance of such Performance Bonds.
Permitted Exceptions
Section6.2as may be
modified by Section6.3.
Permitted Transfer
t forth in Section2.2.2.
Person
association, corporation, limited liability company, joint venture, firm, joint stock company,
unincorporated association, Governmental Authority,governmental agency or other entity,
domestic or foreign.
Phase
each development and construction phase withinDevelopment Parcels
as shown on the Phasing Mapattached as Attachment26.
Phase Improvements
extensions,Private Streets and
Sidewalks, drives, walls, fences,from the back of curb to each residential Buildingto be
constructed within a Phase, and shall include capped paving on streets, drives and alleys adjacent
to such Buildingand landscaping, includingallLandscape Improvements not included in the
Horizontal Improvementsand certain Common Area Improvements facilities, including restrooms
andswimming pools,to be constructed within a Phase area,butPhase Improvements shall exclude
theHorizontalImprovements.
PLL
shall have the meaning set forth in Section11.1.4.
Potential Default
Section14.1.
Potential Returned Property
shall mean those portions of the Property which are
eligible for repurchase under Section16.3due to occurrence of a Repurchase Default or revesting
under Section16.4due to occurrence of a Reversion Action Trigger, as applicabletogether with
all Improvements constructed by or on behalf ofthe Developer.
Pre-Closing Schedule
schedule attached as Attachment6to thisAgreement,
setting forth the dates and time periods for submissions, approvals and actionsin the period prior
to the Close of Escrow.
Preliminary Title Reports
Section6.2.
Prevailing Party
Section17.2.
Private Streets and Sidewalks
mean those private streets, roadways,sidewalks,
pedestrian pathways, andbike ways within the Development Parcels depicted on Attachment31
to be constructed by Developer on the Development Parcels.
Products
Section14.3.2.
Profit Participation Agreement
the meaning set forth in Section4.2.2.
ProfitParticipation Price
shall have the meaning set forth in Section4.2.2.
Project
Section1.3.2.
Project Architect
William HezmalhalchAssociates.
Project Budget Statement
which shows, as of the end of the immediately preceding quarter, (a)the fees paid through the end
of such prior quarter and estimated fees to be paid prior to Completion of the Project in connection
with the development and construction of the Project, and (b)out-of-pocket costs spent through
the end of such prior quarter and estimated out-of-pocket costs to be paid prior to Completion of
the Project, in each case for each of the major categories of hard and soft costs for the development
and construction of the Project.
Project Fair Share Contribution
Section8.7.2.
Property
Section4.1.
Proprietary Capacity
Section17.25.
Public Records Act
Section17.24.1.
Public Access Easement
Section8.9.
Publicly Accessible Common Area
mean the areas depicted
AccessibleonAttachment13comprising(a) Lot A,including the portion thereof
comprising the Pedestrian Plaza,and (b)a portion of the Private Streets and Sidewalks to be
constructed or installed by Developer on the Development Parcels, which areasshall be subject to
an access easement in favor of the City for the benefit of the public as shall be more specifically
set forth on the Tentative Tract Map and the Final Map and in the Public Access Covenant and
which shall provide public access in, on, over, across and through the Publicly Accessible
Common Area and rights of the public to use the Publicly Accessible Common Areaand the
Publicly Accessible Common AreaImprovements.
Publicly Accessible Common Area Improvements
meantheImprovements
constructed on thePublicly Accessible Common Area.
Purchase Price
ProfitParticipation Price,
collectively.
Purchase Price Deposit
the City upon execution of the Agreement as described in Section4.3.1.
Quitclaim Deed
the quitclaim deed to be executed and delivered by the City
at the Close of Escrow to quitclaiSection4.1
and the terms of this Agreement) to Developer. The Quitclaim Deed shall be in substantially the
form and substance of the deed attached hereto as Attachment11, acknowledged and in
Recordable form.
Reacquired Property
Section16.4.1with respect to
a City election to revest all or any portion of the Property pursuant to the Right of Reversion.
RecordRecordationRecordingRecorded
ll mean to record the
specified instrument, or the current or past recording of the specified instrument, in the official
records of Orange County California.
Recordable
acknowledged and is otherwise in a form that would permit the Recordation thereof.
Recorded Condominium Plan
the condominium planscreating the
individualunits on the Condominium Planapproved by BRE and[[1599,1743,1649,1800][12][,I,][Times New Roman]], [[1623,1743,2300,1800][12][,,][Times New Roman]]with respect to conformity
with
Approved Plans only,approved by the City, and Recorded against the Development Parcelsor any
portion thereof.
Release
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing, or dumping into the environment.
RemediateRemediation
under Section101(25) of CERCLA, and similar actions with respect to Hazardous Materials as
defined under comparable state and local laws, and any other cleanup, removal, containment,
abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or
other mitigation or remediation of Hazardous Materials or Releases required by any Environmental
Agency or within the purview of any Environmental Laws.
Repurchase Default
Section16.3.1.
Repurchase PriceRepurchase Price
meanan amount equal to (a)(i)the value
ascribed to each unit within a Phase comprising the RepurchasedPropertyor Reacquired Property,
as applicable, by product type,set forth on Attachment23plus(ii)theactual Horizontal
Improvement Costs(including on all lettered Lots on the Final Map and Common Area) of
completed Horizontal Improvements,divided by the total number of units (218)approved within the
Property,multiplied by the total number of units within the Phases ofthe Repurchased Property or
the Reacquired Property, as applicable,and (b)with respect to any lettered Loton the Final Map or
Common Areashown on the Final Map, the sum of zero ($0)shall be attributed to the land value.
Repurchased Property
set forth in Section16.3.
Responsible Developer
the Initial Developer, or if Initial Developer has been
previously released pursuant to Section2.2.3(c), the then Approved Developer.
Responsible Person
shall mean the New Entity or any post-Merger Responsible
Developer.
Returned Property
Section16.6.1.
Reuse Plan
Section1.1.1.
Reversion Action Trigger
et forth in Section16.4.1.
Reversion Action Trigger Date
Section16.4.1.
Reversion Event
Section16.4.
Right of Purchase
Section16.3.
Rightof Reversion
Section16.4.
Schedule of Performance
Schedule of Performance attached as
Attachment7to thisAgreement,setting forth the dates and time periods for submissions,
approvals and actions, including the construction of the Improvements.
Scope of Development
Attachment8to the Agreement.
Second Party
shall have the meaning set forth in Section17.7.3.
Site Plan
forth in Section1.2.2.
Special Restrictions
for Disposition
Parcels 6B, substantially in the form and substance of the document attached hereto as
Attachment20, to be executed by the City and acknowledged in Recordable form and Recorded
at the Close of Escrow immediately prior to the Recording of the Quitclaim Deed.
Specific Plan
been or shall be amended from time to time.
Staff Costs
shall have the meaning set forth in Section1.8.1.
Staff Costs Deposit
shall have the meaning set forth in Section1.8.1.
State
Subdivision Improvement Agreement
agreement entered into in connection with the Tentative Tract Map.
Subdivision Map Act
codified at Government Code Section66410[[1206,738,1346,795][12][,I,][Times New Roman]]et seq [[1321,738,1371,795][12][,,][Times New Roman]].
Successor Owner
(a)with respect to theProperty, each and every Person
owning or acquiring fee title to all or any portion of the Property, but excluding each and every
End User,and (b)with respect to the City, its Governmental Successors.
Supplemental Title Report
set forth in Section6.3.
Survey
Section6.1.
Surveyor
Section6.1.
Tax B
mean aDistrict tax the proceeds of which shall be used by City to fund a
portion of City essential services, including police and fire protection, ambulance and paramedic
services, recreation programs and services, street sweeping, traffic signal maintenance and the
maintenance of City-owned parks, parkways and open spaces, lighting, flood control and storm
drain services and other City services and facilities at Tustin Legacy.
Tentative Tract Map
Tentative Tract Map No. 18125 approved by the City
in accordance with the Subdivision Map Act and the City Code.
Title Company
Transfer
(a)the transfer, sale, assignment, lease, license, entry into a
property management agreement, gift, hypothecation, mortgage, pledge or encumbrance, or other
the Property, the Improvements thereon, or any portion thereof or interest therein, whether
voluntary, involuntary, by operation of law or otherwise, or any agreement to do so; (b)the
granting by Developer of any Mortgage, easement, license, lien or other encumbrance and/or the
execution of any installment land sale contract or similar instrument affecting all or a portion of
the Property, the Improvements thereon, or any portion thereof or interest, or any conversion of
Developer to an entity form other than that of Developer at the time of execution of this Agreement
and (c) the Merger.
Transfer of Control
Person, the occurrence, directly or indirectly, in a single transaction or a series of transactions, of
any of the following:
(a)the conveyance, sale, assignment, transfer or disposition of all or substantially all
of t
other equity interests;
(b)the dissolution, merger, reorganization, share exchange, recapitalization,
restructuring or consolidation of that Person (or its Controlling Person), other than a transaction
that would result in all of the voting securities of that Person (or its Controlling Person) outstanding
immediately prior thereto to continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 50.01% of the combined voting
power of all of the voting securities of that Person (or its Controlling Person) or such surviving
entity outstanding immediately after such transaction; and
(c)the acqu
Sections13(d)and14(d)(2) of the Securities Exchange Act of 1934) of an aggregate of 50.01% or
more of the beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange
Act of 1934) of the issued and outstanding voting securities or other equity interests of that Person
(or through an affiliate) already Control or own at least 50.01% of the voting securities or other
equity interests of such Person (or its Controlling Person).
Transferable Products
Section14.3.2.
Transferee
ccessor
Owner, but excluding each and every Homebuyer of a Home.
Transferee/New EntityCertificate
Section4.6.6.
TUSD
Section7.1.1.
TUSD Agreement
Section8.17.4.
TUSD CFD
Section8.17.4.
Tustin Legacy
Section1.1.3.
Tustin Legacy Backbone Infrastructure Program
t forth in
Section8.7.1.
Vertical and Phase Improvement Costs
shall mean all of the following:
(a)Indirect Construction. Indirect construction costs actually expended for Phase
Improvementsand Vertical Improvements, including permits and fees, architecture, engineering,
consultants, bonds, inspections, on-site construction supervision, construction trailer, security, repair
and replacement, and other site costs associated with the construction of the Phase Improvements
and Vertical Improvements.
(b)Direct Construction. The actual costs of construction materials, equipment rental,
labor and subcontractors for the construction of thePhase Improvementsand Vertical Improvements.
(c)Insurance. An agreed amount equal to two percent (2%) of the total costs set forth
inclauses(a)and (b)of this definition of Vertical and Phase Improvement Costs to compensate
Developer for insurance costs related to the Phase Improvementsand Vertical Improvements.
(d)Other Allocable Costs. Anyother actual costs properly and directly allocable
specifically to the development, construction, maintenance and/or repair of the Phase Improvements
and Vertical Improvements.
Vertical Improvements
mean all buildings, structures and other improvements,
other than the Horizontal Improvementsand the Phase Improvements, to beconstructed or
installed on the Property, consistent with the Specific Plan, the Reuse Plan, the Approved Plans,
the Entitlements and the Development Permits.
îèé
ûèèûùôï÷îè
ð×ÆÓÈà éÓÈ× ìÐÛÎ
ATTACHMENT 5
CITY ESTOPPEL
________________, 20__
[Transferee]
_________________
_________________
Attn:____________
Re:[[450,1102,1133,1159][12][,I,][Times New Roman]][Developer/Development Name]
[[298,1217,350,1274][12][,I,][Times New Roman]]L [[328,1217,797,1274][12][,,][Times New Roman]]adies and Gentlemen:
Transferee
The undersigned is writingthis letter to regarding thatcertain
Project
residential development project (the[has been] [may be] constructed on the land
Development Parcels
legally described onattached hereto(the
City
The City of Tustin, a municipal corporation of the State of California(,and
Developer
CalAtlantic Group, Inc., a Delaware corporationd/b/a CalAtlantic Homes ,
entered into that certain Tustin Legacy Disposition and Development Agreement For Disposition
1
DDA
Parcel6B,dated as of _____________, _______(, relating to theconveyance of the
DevelopmentParcelsby the City to Developer and the subsequent development of the
Development Parcelsby Developer, all as more particularly set forth therein.All initially
capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in
the DDA.
The City has executed that certain Declaration ofSpecial RestrictionsforDisposition
Special Restrictions
Parcel6B(the,dated _____________, 201_,that was recorded in the
Official Records
Office of the CountyRecorder,against title to
theDevelopment Parcelson _____________, 201_as Instrument No. __________,which
includes, among other matters, certain requirements regarding the use and maintenance of the
Development Parcelsand sets forth those provisions of the DDA which survive the issuance of a
Certificate of Compliance with respect to the Project.
Quitclaim Deed
The City has executed aQuitclaim Deed (the_____________,
201_ and recorded in the Official Records against title to the Development Parcelson
[[300,2841,350,2872][6][,I,][Times New Roman]]1
[[320,2842,972,2890][10][,I,][Times New Roman]]Add references to amendments if any [[941,2842,1436,2890][10][,I,][Times New Roman]], with respect to DDA and e [[1406,2842,1943,2890][10][,I,][Times
New Roman]]ach document described below [[1920,2842,1970,2890][10][,I,][Times New Roman]].
_____________, 201_as Instrument No. __________, pursuant to which the City conveyed to
Developer the fee title to the Development Parcels, subject to certain restrictions and limitations
set forth in the Quitclaim Deed.
In addition, Developer and the City executed that certain Memorandum ofTustin Legacy
Memorandum of
Dispositionand Development AgreementFor Disposition Parcel6B
DDA
_____________, 201_, which was recorded in the Official Records against title to
theDevelopment Parcelson _____________, 201_as Instrument No. __________,and provided
record notice of the DDA.
In addition, Developer and the City executed that certain Development Agreement
DA
(the201_, which was recorded in the Official Records against title
to the Development Parcelson ________________, 201_as Instrument No. __________.
TheDDA,the Memorandum of DDA,the DA, theSpecial Restrictions,and the
PropertyDocuments
Quitclaim Deedare collectively referred toherein.
You have informed the undersigned City thatDeveloper intends to Transfer its interest in
all or a portion of the Development Parcelsor a direct or indirect interest therein to Transfereeon
Transaction
or aroundthe date of this letter (the
By its execution of this letter, the City hereby confirms toTransfereethat:
1.Except as set forth on Attachment 1to this letter,thePropertyDocuments are in
full force and effect and have not been modified, supplementedor amended, whether orally or in
writing, and have not been assigned or otherwise transferredby the City to any other person or
entity.
2.To the best of the knowledge,except as set forth on Attachment 2to this
letter:(i) there are no defaults of Developer(including, without limitation, no Potential Defaults
and no Material Defaults)under any of the Property Documents nor any facts which now, or
after thegiving of notice or the passage of time, or both, would constitute a default (including,
without limitation, a Potential Default or Material Default)under any of the Property Documents
or which would entitle the City to then exerciseany of its rights or remedies under any of the
Property Documents, including, without limitation,its Right of Reversion or Right of Purchase
pursuant tothe DDA;and (ii)the City has no current claim of breach, counterclaim, lien or offset
presently existing under any of the Property Documents.
kwords of like
import, meanthat the facts in question are actually known (as opposed to imputed, inquiry or
constructive knowledge) to the City Manager, based upon such individuals own actual
knowledge after a reasonable inquiry of the Director of Economic Development and City
Attorney.
The undersigned acknowledges that Transfereemay rely upon this letter in entering into
the proposed Transaction. This letter is written in connection only with the proposed
Transaction and may be reliedupon only by Transfereeas to the matters addressed herein.This
lettermay not be relied upon by any other party or for any other purpose without the express
written consent of the City.This certificate shall be binding upon the City and its successors and
assigns.In no event shall the individual executing this Estoppelon behalf of the Cityhave any
personal liability hereunder.
CITY OF TUSTIN
Dated: ________, 20__By:
Name: _____________________________
City Manager
ATTEST:
By:
Name: ______________
City Clerk
APPROVED AS TO FORM:
By:_________________________
Name: ______________________
City Attorney
EXHIBIT
LEGAL DESCRIPTION OF THE PROPERTY
[[1115,473,1468,530][12][B,I,][Times New Roman]]{to be attached}
Attachment 1
Modifications, Supplements or Amendments to Property Documents
1.[]
Attachment 2
Qualifications to Matters Confirmed in Estoppel
1.[]
ATTACHMENT 6
PRE-CLOSING SCHEDULE
DDAItemActionResponsible
Party
1.EXECUTION OF AGREEMENT
A1.8.2;Developer executes Within five (5) Business Days after Developer
4.3.1;DDA and deliversthe later of (a) approval by the City
4.4to Escrow:Council of the DDA or (b) approval
three (3) executed by the City Council of the
originals of DDA and Development Agreement.
initialPurchase Price
Deposit
($1 million)
and to City:
City Costs Deposit
($50,000),Developer
certification providing
the information
required by
Section4.6.6(a)
through (e); and
insurance binders
required by Section
4.6.4of DDA.
B4.4City executes DDAWithin five (5)Business Days City
and delivers three
executed original executed DDA and delivery to
counterpart signatures Escrow of Purchase Price Deposit
of DDA to Escrowand City Costs Deposit, delivery to
the City of (a) the Developer
certification providing the
information required by
Section4.6.6(a) through (e)of DDA
and (b) insurance binders required by
Section 4.6.3of DDA.
C.4.4Opening of Escrow.Opening of Escrow shall take place Escrow
upon the date that Escrow Holder Holder,
receives three executed original Developer
counterparts of DDA signed by and City
Developer and the City
DEffective Date of the Date of City Council approval of City
DDADDA(February 6, 2018)
DDAItemActionResponsible
Party
E1.8.1Outstanding ENA If the amount of ENA Transaction Developer
Deposit amountsExpenses to the Effective Date
exceeds the amount of the ENA
Deposit, Developer shall pay the City
such outstanding amounts due within
thirty (30) calendar days following
receipt of an invoice from the City
therefor.
F5.6Review of Certain City shall, within ten (10) Business City
Records and MaterialsDays of the Effective Date, provide
Developer with copies of all City-
produced plans, reports, studies,
investigations and other materials the
City may have in its possession that
are pertinent to the Property and/or
development of the Project and not
previously delivered
G4.6.4;Developer to provide On or before the date specified in Developer
11.1;evidence of liability, Section 4.4, Developer to have
11.2.3obtained and delivered to City binder
compensation and or certificate providing evidenceof
automobile insurance insurance, effective upon mutual
execution of DDA by Cityand
Developer.
2.CONVEYANCE OF PROPERTY FROM CITY TO DEVELOPER
A4.6.2Covenants; At least thirty (30) calendar days Developer
Preconditions to Close prior to Close of Escrow, Developer
of Escrow -shall submit an update of the
Additional AssurancesFinancing Plan to the City, for the
purposes of confirming that
Developer has sufficient funds for
construction of the Project and for its
operation consistent with the terms of
this Agreement and without a
Mortgage.
B6.1Survey by DeveloperPrior to the end of the Due Diligence Developer
Period, Developer
sole expense shall have obtained a
prepared by a licensed surveyor
certified by the Surveyor to the City,
Developer and the Title Company.
DDAItemActionResponsible
Party
C5.1; 5.3Due Diligence Period; Developer may elect to conduct due Developer
Diligence Termination diligence during the period
Noticecommencing on the Effective Date
and ending on the date which is sixty
(60) calendar days following the
Effective Date at 4:00 P.M. Pacific
Time.
If Developer fails to give a Diligence
Termination Notice on or before the
end of the Due Diligence Period,
Developer will be deemed to have
disapproved the Due Diligence
matters and elected to terminate this
Agreement.
D11.1.4Environmental Developer to provide environmental
Insuranceinsurance policy required by Section
11.1.4 prior to the earlier of the Close
of Escrow or the License Agreement
effective date (as established in the
License Agreement); provided that
Developer shall not carry out any
environmental testing, sampling,
invasive testing, or boringon the
DevelopmentParcels prior to the
effective date of the environmental
insurance policy
E6.2Additional Title Developer may object to certain new Developer
Reviewexceptions in updated preliminary
title report during Due Diligence
Period.
FE6.3Supplemental Title If, after the end of the Due Diligence Developer
ReportsPeriod, the Title Company discloses
additional matters that affect title to
the Development Parcels, then within
ten (10) calendar days after
issued by the Title Company
concerning the Property (a
Developer shall provide the City a
copy of such Supplemental Title
Report.
DDAItemActionResponsible
Party
G7.2.1(a)Citydelivery of all Not later than two (2) Business Days City
document deliveries prior to the Close of Escrow, the City
required for Close of shall have executed and delivered to
Escrow Escrow Holder the appropriated
documents, substantially in the form
and substance of the instruments
attached as Attachments to the DDA,
unless otherwise agreed by the
Parties, each in their sole discretion.
H4.3.3,Delivery of Developer No later than one (1) Business Day Developer
7.2.2(a)Closing Payment and prior to the Close of Escrow,
other costsDeveloper shall deposit with Escrow
Holder (i) the Developer Closing
Payment and (ii) any other costs
explicitly set forth in this Agreement
as costs to be paid by Developer at
the Close of Escrow.
I7.2.2(b)Developerdelivery of Not later than two (2) Business Days Developer
all document prior to the Close of Escrow, the
deliveries required for Developer shall have executed and
Close of Escrow delivered to Escrow Holder the
appropriated documents, substantially
in the form and substance of the
instruments attached as Attachments
tothe DDA, unless otherwise agreed
by the Parties, each in their sole
discretion.
J7.3;Additional Close of Escrow Holder shall have delivered Escrow
7.4.5Escrow Conditionsat least seven (7)Business Days prior Holder
to the Close of Escrowa statement of
costs to each Party and at least two
(2) Business Days prior to the Close
ofEscrow each of the Parties shall
have approved such statement as
being consistent with the provisions
of Section7.4At least three (3)
Business Days prior to the Close of
Escrow the Parties shall have
delivered a schedule of prorations to
Escrow Holder.
K8.4Basic Concept Plan Developer shall submit any
Modificationmodifications to the Basic Concept
Plan to City in writing. If City
DDAItemActionResponsible
Party
approves such modifications, City
Manager or designee shall endorse
approval on one set of the Basic
Concept Plan and return to
Developer. City shall be deemed to
have disapproved the Basic Concept
Plan modification unless City gives
written notice of approval to the
Developer.
L7.1.1;Close of EscrowClose of Escrow shall take place on Developer
7.1.2;that date which is ten (10) Business and City
7.1.3Days following the last to occurof
the satisfaction of the Developer
Closing Conditions set forth in
Sections 7.2.1 (d), (e), (f), (g)and (l)
and the City Closing Conditions set
forth in Sections 7.2.2 (c), (d), (e),
(f), (g),(h), (j),(k)and (n),(except
that if the provisions of Section 7.1.3
apply, the Closing Conditions set
forth in Sections 7.2.1(g) and 7.2.2(e)
shall be deemed excluded from the
foregoing list of conditions; and
provided that in no event shall
Developer be obligated to close
unless it has received at least five(5)
noticefrom the City of the
anticipated date for satisfaction of
such City Closing Conditions and
provided, further, that except as set
forth in Sections7.1.1and 7.1.2,the
Close of Escrow shall in no event be
later than June28, 2018
shall be subject to the satisfaction of
the conditionsset forth in Sections
7.1,7.2and 7.3.
M7.1.1City right to extend The City shall have the right, in its
Close of Escrowsole discretion, but not the obligation,
to extend the Outside Closing Date
for a period not to exceed three (3)
months at no cost to the Cityin order
DDAItemActionResponsible
Party
to continue to achieve the removal of
the lien and the Final Approval of the
District;
N11.1.4,Developer to provide a Environmental insurance described in Developer
11.2.5binder evidencing Section11.1.4to become effective as
environmental of the Effective Date of the DDA, or,
insurance if otherwise agreed by the City, if a
License Agreement is executed, by
the date set forth in the License
Agreement or if no License
Agreement is executed, prior and as a
condition to the Close of Escrow.
O8.2.3;License AgreementAfter the Initial Satisfaction Date, but Developer
11.13;prior to Close of Escrow, and
11.1.4provided that (a)all of the
representations and warranties of
Developer set forth in Sections3.1
and17.12are true and correct as of
such Initial Satisfaction Date and
(b)Developer has deposited with
Escrow Holder the additional
Purchase Price Deposit amount
described in Section4.3.1($4
million), and (c) Developer has
obtained the requisite insurance and
provided evidence of that insurance
to City, Developer shall have the
right, at its sole cost and expense, and
pursuant to a license agreement to be
entered into by and between the City
and Developer in substantially the
form and substance of the License
Agreement attached as
Attachment22or as otherwise
approved by each in its sole
discretion, to enter upon the
Development Parcels prior to the
Close of Escrow for purposes of
carrying out the Horizontal
Improvements.
DDAItemActionResponsible
Party
P4.3.1Increase of Purchase Developer
Price DepositAgreement, Developer shall deliver
an additional earnest money deposit
to increase Purchase Price Deposit.
Q8.7.3(e)CFD FormationCity will provide Developer with the
opportunity to reviewand provide
input on all documents and budgets
relating to the formation of the
District (including any funding and
acquisition agreement and the rate
and method of allocating the District
assessments) at least thirty (30)
calendar days prior to the date on
which the formation documents are
expected to be submitted for the
agenda package for the first public
hearing related to the formation of the
District
ATTACHMENT 7
SCHEDULE OF PERFORMANCE
DDAItemActionResponsible
Party
1.MAPPING, GRADING, INFRASTRUCTURE, UTILITIES, BUILDING PERMITS
A7.1.3;Final Map Prior to Close of Escrow,the Final Developer
7.2.1(g); Approvaland Map shall have been Recordedand
7.2.2(g);Recording;City and Developer shall have entered
8.8; 8.9.1Subdivision into the Subdivision Improvement
Improvement Agreement; provided, however, that in
Agreement; the event the provisions of
Performance Section7.1.3apply, the Close of
BondsEscrow may take place usinga metes
and bounds conveyance and the Final
Map need not have been approved by
the County and Recordedprior to
Closing, but must be recorded within
6 months after Close of Escrow. In
addition, if not previously delivered in
connection with such Recording or
required pursuant to then effective
Subdivision Improvement Agreement,
Developer shall have provided one or
more Performance Bonds in favor of
the City as obligee securing
HorizontalImprovements.
BDeveloper Within 180calendar daysafter Developer
submits Effective Date of DDA
Horizontal
Improvements
plans for approval
CCity issues The City shall use good faith efforts to City
Horizontal issue within ten(10) Business Days
Improvement following:(a) Community
permitsDevelopment Departmentand Public
Works approval of final grading plans;
and (i) payment of all
required permit fees,(ii)delivery of
associated Performance Bonds, and
(iii)satisfaction of all required
conditions of approval associated with
grading and Horizontal Improvements.
DDAItemActionResponsible
Party
DCity issues With respect to each building permit City
building permitsapplication, the City shall use good
faith efforts to issue within ten(10)
Business Daysfollowing: (a) building
division approval of building plans; (b)
fees associated with applicable
building permit; (c) satisfaction of all
required conditions of approval
associated with applicable building
permit, and (d) Recording of the Final
Map; provided, however, that building
permits for Model Homes are exempt
from the Recording of the Final Map.
2.CONSTRUCTION OF IMPROVEMENTS
A8.9.1;Horizontal The Grading Workshall have Developer
16.4.1(a)Improvementscommenced three (3)months
following Close of Escrowand all
Horizontal Improvements shall have
been completed thirty-six (36)months
following Close of Escrow, which may
be extended for Force Majeure Delay
not to exceed a total of twelve (12)
months.
B8.9.2Phase Swimming pool and restrooms and theDeveloper
Improvements pedestrian access and landscaping
Constructed with related to such facilities, although
Horizontal comprising Phase Improvements for
ImprovementsPhase 3B, shall be constructed
concurrently with construction of the
Horizontal Improvements
C8.9.2;Remaining Phase Phase Improvements shall be Developer
8.9.3Improvements; constructed sequentially by Phase and
Vertical improvements for each Phase shall be
Improvements completed concurrently with
completion of the Units in such Phase.
Vertical Improvements shall be
commenced and Completed in
compliance with the Inventory
Commitment.
D8.9.3(a)Construction of Developer commences construction of Developer
Models Models notlaterthantwelve(12)
months following the Close of Escrow,
DDAItemActionResponsible
Party
which may be extended for Force
Majeure Delay.
Complete construction of Modelsnot
later than eighteen (18)months
following the Close of Escrow. Model
Home construction on the
Development Parcels to consist of
three (3) Model complexes (13
Models) representative of Homes in
each of three product types proposed
to be constructed as part of the Project,
which may be extended for Force
Majeure Delay.
E8.9.3(b),Initial Product Complete construction of initial Developer
16.4.1(b)inventoryproduction home inventory within nine
(9) months following Completion of
Models,which may be extended for
Force Majeure Delaynot to exceed a
total of twelve (12) months.
F8.9.3(c)Ongoing Construct, obtain valid certificates of Developer
Inventory occupancy and offer for sale the
RequirementHomes in production phases which are
based upon a reasonable analysis of
market conditions and anticipated
absorption and which otherwise are in
conformance with the Schedule of
Performance. Taking into
consideration the market conditions
and anticipated absorption, use
commercially reasonable efforts to
commence construction of each
subsequent production phase of Homes
not later than the close of escrow on
the last Home for sale to the public in
the prior production phase.
G8.12Bonding or Developer shall, within thirty (30) Developer
Removal of calendar days following receipt of
Construction notice thereof, cause to be removed or
Liensbonded against (such bonding to be by
the provision of bonds satisfying
California statutory requirements) any
Construction Liens.
DDAItemActionResponsible
Party
H8.11;Outside Date of Notwithstanding any other provision Developer
16.4.1(b)Completion of of this Agreement, the Developer shall
Constructionbe obligated to Complete the Project
(including Horizontal Improvements,
Phase Improvements, Vertical
Improvements and all of the Homes)
withinthe earlier of (a) thirty six (36)
months following opening of Models
to the public, or (b) forty six (46)
months after Close of Escrow, each of
which may be extended for Force
Majeure Delaynot to exceed a total of
twelve (12) months.
3.FINANCING
A8.5.1Financial After the Close of Escrow, and Developer
Capability thereafter until issuance of the
Certificate of Compliance, Developer
shall continue to be responsible for
demonstrating to the City the financial
capacity of Developer and the
capability of Developer to perform its
obligations under this Agreement. In
addition to the requirements set forth
in Sections 4.6.1 and 4.6.2, during the
period commencing on the Close of
Escrow and ending on the issuance of
the Certificate of Compliancefor the
Project, Developer shall submit
annually, on the anniversary of the
Closing Date, a date-down of the
Financing Plan.
B8.6Project Budget Prior to the issuance of the Certificate Developer
Statementof Compliance for the Project (but not
more frequently than quarterly), at
City request, Developer shall provide
a Project Budget Statement within
thirty (30) calendar days following the
of the
expiration of the applicable quarter.
DDAItemActionResponsible
Party
4.DESIGNAND CONDOMINIUM PLAN APPROVAL
A8.4Basic Concept Developer shall submit any Developer
Plan Modificationmodifications to the Basic Concept
Plan to City in writing.The City, in
its Proprietary Capacity only, shall
conclusively be deemed to have
disapproved such modifications to the
Basic Concept Plan unless, within
fifteen (15) Business Days after the
,
the City gives written notice of
approval to Developer. Developer
shall make changes in response to the
deemed disapproval and resubmit
such Basic Concept Plan to the City
for review and approval in accordance
with the provisions of Section8.4.6
period shall be ten (10) Business
Days.)
B8.4.3Submission of Developer shall submit for approval Developer
Final Design by the City in its Governmental
DrawingsCapacity,not later than six(6) months
following the Close of Escrow,final
design drawings and related
documents conforming to the
requirements of the City Code, the
Specific Plan and all other
Entitlements and conditions of
approval.
C8.12(g)Approval by City Prior to or concurrently with its Developer
ofCondominium submittal to BRE of any
PlanCondominium Plan and following
BRE approval of any such
Condominium Plan and prior to
Recording thereof, Developer shall
submit to the City each such
Condominium Plan for approval by
the City, provided that the approval of
the City shall be limited to confirming
that the number of Homes shown for
each Phase on the proposed
Condominium Plan are consistent
DDAItemActionResponsible
Party
with the Approved Plans, as the same
may have been amended from time to
time with the approval of the City in
its Governmental Capacity and its
Proprietary Capacity.
5. CERTIFICATE OF COMPLIANCE
A8.9.1; 9.1; Developer Within thirty (30) days fromthedate Developer
9.3submits request all Conditions Precedent to issuance
for issuance of the are satisfied, Developer shall submit a
Certificate of certification of satisfaction of all
Compliance by Conditions Precendent and a request
Cityfor issuance of Certificateof
Compliance.
B9.3;The City approves Within fifteen (15) Business DaysCity
9.6ordisapproves the following submission of request for
request for Final Certificate of Compliance and
issuance of the satisfaction of all conditions precedent
Final Certificate set forth in DDA
of Compliance
C9.6Cityshall cause Within five (5) BusinessDaysCity
the Recording of following issuance of Certificate of
the Certificate of Compliance by City
Compliance
ATTACHMENT 8
SCOPE OF DEVELOPMENT
Development Agreement of which this Attachment is a part;
the Attachments to the Agreement unless otherwise specified. Capitalized terms not otherwise
defined in this Attachment have the meaning set forth in the Agreement.
1.0General Information
The Development Parcelsare delineated on Attachment 2. The Development Parcelsare subject
to easements, obligations and encumbrances, including, but not limited to, the following:
a)Covenants and conditions contained in the Quitclaim Deeds from the United States of
America, as Grantor,to the City of Tustin, California, as Grantee, Recorded May 14, 2002
as Instrument No. 20020404598 and on May 9, 2003 as Instrument No. 2003000533361
of Official Records.
b)Developershall improve and provide public access toall private streets, roadwaydrives,
andsidewalks
Pedestrian Plaza and to the portions of the Common Area as shown in Attachment 13 of
the DDA and,pursuant to the Final Map and subsequent Condominium Plans, shall record
an access easement in favor of the City of Tustin for the benefit of the public to ensure
public access in, on, over and across the Private Streets and Sidewalks, the paseo walkway
areas and theportions of the Common Area to be made available to the public as further
. Developershall prepare the required
legal descriptions and submit to the City for review.
2.0Developer Improvements
2.1Definition of Improvements
Developershall construct on the Development Parcelsall of the Horizontal Improvements, Phase
Improvementsand Vertical Improvements and shall construct or cause to be constructed to serve
the Project certain private and public infrastructure as required and approved by the City, including
without limitation, the City Planning Commission and City Council. This Attachment presents
theScope of Development and minimal specific design criteria. Additional requirements may be
contained in conditions of approval of the entitlements for the Projectand in the Approved Plans.
TheImprovements shall generally consistof the following:
2.1.1Vertical Improvements. Developer shall complete the development of the Vertical
Improvements to consist of construction and installation of a residential condominium community
project with design quality and amenities appropriate for the community. The Project will be
located within the western portion of Planning Area 15 of Neighborhood G of the Specific Plan
and Lots 1 through 8, Lot B, and Lot A (which has an Irrevocable Offer of Dedication to the City
of Tustin) of Tentative Tract Map 18125, and will consist of 218 residential condominium Homes,
-substantive
modifications may occur during the building permit process, subject to prior approval by the City.
Vertical Improvements shall include, but not be limited to, buildings, architectural amenities,
security lighting, pedestrian amenities and trash enclosures. Design of all Vertical Improvements
shall be consistent with requirements of the Specific Plan, development standards contained in
Section 3.0of this Attachment, and additional requirements contained in any conditions of
approval of the entitlements for the Project and the Approved Plans.
2.1.2Horizontal Improvementsand Phase Improvements. Developer shall be
responsible for construction ofall Horizontal Improvements and Phase Improvements. Such Phase
Improvements shall constitute improvements which are located entirely within a development
phase as further depicted on Attachment 26 of the DDA. Phase Improvements will generally
include utility extensions, private courts and drives, walls and fences, landscape and hardscape,
paseo walkway areas, Pedestrian Plaza, swimming pool, spa and restroom facilities, trellises,
barbecues and other site amenities and furnishings. Horizontal Improvements and Phase
Improvements shallinclude any necessary private and public infrastructure and utilities including,
without limitation:
a)all Grading Work (including any necessary import and/or export) and completion of the
Private Streets and Sidewalks;
b)all utilities including connection of all utilities, including but not limited to sewer, domestic
and reclaimed water, electrical, gas, telephone, cable and telecommunication service
connections from their origin or Tustin Legacy Backbone Infrastructure Program locations
as shown in the Specific Plan or as modified by private utility purveyors and as approved
by the Director of Public Works to the buildings and uses on the Development Parcels;
c)any drainage improvements needed to convey the drainage from the Development Parcels;
d)Landscaping Improvements including, with limitation, any common area landscape,
irrigation and/or hardscape improvements including the landscape of lots, medians,
Common Areas on the Development Parcelsand other improvements within the existing
and proposed public right-of-way, as may be required and approved by the Planning
Commission and City Council, as applicable, with approval of a Development Agreement,
Basic Concept Plan approval, Design Review, and any or other required entitlements.
Developershall install and maintain landscaping to the back of curb, and shall enter into a
Landscape Maintenance Agreement for maintenance of the Boundary Landscape Areas.
Pursuant to the Landscape Maintenance Agreement,the City shall be responsible for
maintaining the meandering sidewalk within and outside the public right-of-wayand, if the
City accepts the dedication of all or any portion thereof, the portion of the Pedestrian Plaza
Area for which such dedication is accepted;
e)The full improvement of paseo walkway areas and other publicly accessible private
pathways through and adjacent to the site as depicted on Attachment 13 of the DDA,
Common Areafacilities inclusive of the swimming pool, spa, associated equipment room
and restroom facilities. Site amenities such as outdoor kitchens and barbecues, site
furnishings, trellises and mail pavilions, and the Pedestrian Plaza located on Lot A.
f)Full improvements include, without limitation,all water lines, gas, storm drainage,
electricity, sewage and reclaimed water as shown in the Specific Plan and/or Irvine Ranch
Water District Sub Area Master Plan for Tustin Legacy, and/or as approved by the City
and responsible private utility purveyors. All scope of work for design and construction
includes, without limitation,all surveying, rough and precise grading, import and export of
dirt as required, asphalt paving, including, without limitation,any necessary overlays,
driveways, sidewalks, concrete, curb and gutter, landscaping, irrigation, street lighting, all
traffic control, striping and signage and other work to construct improvements in
accordance with Tustin City standards.
2.1.3Compliance with Codes and Conditions. All of the Improvements shall conform to
all applicable federal, state, county and city regulations, the regulations of the Specific Plan,the
Tustin City Code,the conditions of City resolutions(as and to the extent required by the DA)and
all City of Tustin planning, building, electrical, plumbing, mechanical, fire codes, public and
private street standards(unless otherwise waived/modified by the City)as well as compliance with
agency having jurisdiction including, but not limited to, Planning Commission and City Council
approvals.
As more particularly described and provided in Section 8.4of the Agreement, all final working
drawings, specifications, grading plans, soil reports, landscaping plans, color and finish schedules
shall be approved by the City in its Proprietary Capacity and its Governmental Capacity prior to
start of the construction.
2.1.4Compliance with DDA. Developershall comply with all provisions of the
Agreement related to the planning, design, construction, and operation of the Improvements.
2.2Schedule of Performance
Developershall commence and complete the Improvements by the respective times established in
the Schedule of Performance (Attachment 7).
3.0Development Standards
The Improvements shall be designed and developed as a planned development in which all
construction will have architectural quality and character, both individually and in the context of
the surrounding area appropriate and customary for the community. All public spaces, open space,
and individual yard areas shall be designed, landscaped and developed with comparable quality.
Particular attention shall be paid to enhancing pedestrian activities, minimizing mass, scale, and
bulk and to the selection of color and materials. The City and Developer will cooperate and direct
their consultants, architects and/or engineers to cooperate so as to ensure the continuity and
coordination necessary for the proper and timely completion of development of Improvements.
Developeracknowledges the responsibility to obtain any approvals required by any governmental
agency, utility or other agency, including the City, which has jurisdiction over all of any portion
be incorporated into the final design and noted in the construction documents by the architects,
engineers and other consultants. Developershall make all necessary applications by such time(s)
as will be consistent with the timely commencement and completion of various portions of the
Improvements as identified in the Schedule for Performance. In addition, the following
development standards shall apply to the Improvements:
3.1Architecture and Project Design
The Project design shall be of a quality design appropriate and customary for the community and
incorporating 4-side architecture on all buildings. The design shall be of a contemporary nature
which represents the future ofTustin Legacy. The Project design elements include substantial
changes in plane which reduce the building massing, balconies and rooftop decks, extensive
fenestrations, accent wall materials both as primary materials and insets, casement and fixed
windowtypes, upper level trellises, canopies and shading devices, metal and glass railings, and
resort style amenities.
The Project shall reflect the following architectural guidelines:
Homes and buildings shall define and relate to the perimeter public street edge, with
architecture to face the streets.
Homes and buildings shall frame and define public space with an especially strong
relationship between the building and street encouraged.Windows and yard spaces shall
engage the streets where possible and promote an open community through the use of
pedestrian scale improvements.
Architecture shall be technically sophisticated in detailing, incorporating a rich palette of
materials and textures.
Visually interesting façade treatments with distinctive architectural elements and design
details.
Varied setbacks, projections, roof lines, windows and reveals, and elements that minimize
the impact of the building mass.
Homes and buildings designed with contemporaryforms, accented by unique architectural
shapes and details.
Extensive fenestrations shall be provided on facades which face onto open spaces with
window and door detailing appropriate to the architecture.
Homes and buildings shall incorporate smaller-scale architectural details such as roof
decks, balconies, trellises, canopies, shade devices, low walls and entry gates, accent
materials, contemporary exterior lighting fixtures, and unique doors and windows.
Varied building heights are encouraged, but with a predominantly vertical expression.
Building façade articulation is encouraged.
Personal outdoor living opportunities are to be provided through the use of expansive upper
floor rooftop decks and balconies.
Quality standards will be consistent with the plans approved by thePlanning Commission and will
include landscaping in accordance with a landscaping paletteapproved by the Cityin its
Proprietary Capacity and its Governmental Capacity, appropriate front, rear and side architectural
building features and roof top screening of equipment,including but not limited to upgraded
exterior building materials on buildings visible to the public from Tustin RanchRoad, Victory
Road, Park Avenue, and Moffett Drive. Consistent architecture style shall be evident in all
elements of design, from all elevations of the structures and treatment of roofs and parapets, down
to smaller elements such as community structures and facilities. Particular attention shall also be
paid to massing, scaleandcolor.Expression of such quality for the Project shall be true to the
and as may be further developed
by the parties and approved by the City.
In general, the design of the Project shall encourage active participation by pedestrians by
providing suitable and attractive amenities in the Project and by reinforcing internal relationships
between the uses through streetscape design, pedestrian and bikeway linkages, and site planning
techniques. A strong visual identity for the Project shall be created through creative design of
community entries, landscape design along roadways, signage and placement of views. Enhanced
views into the Project shall be considered from all exterior roadways, including at the formal
project entries along Victory Road andMoffett Drive. Creative site planning is encouraged for
theDevelopment Parcelsdue to its prominent location within the Specific Plan. Careful
consideration of building site location, attention to views, relationships to surrounding uses and
open spacesall need to be incorporated into site plans.
The Project shall also be designed in compliance with all applicable provisions of the Specific
Plan.
3.2Vehicular Access.The placement of vehicular driveways shall be coordinated with the
needs of properstreet traffic flow. In the interest of minimizing traffic congestion, the City will
control the number and location of curb breaks for access to the Development Parcels. Access to
the Development Parcels as depicted on the Site Plan attached as Attachment3 to the DDA will
be subject to approval by the City Traffic Engineer. Traffic signals will not be required to be
constructed at the Development Parcelsentries; however, if Developerdetermines that traffic
signals are necessary to support the development in the future the cost to design and construct the
signal(s) will be the responsibility of Developer.
3.3Signs.Signs shall be designed to contribute positively to the environment. Signs
identifying the Project will be permitted, but their height, size, location, color, lighting and design
shall be subject to City approval and must conform to provisions of the Specific Plan and/or Tustin
City Code, as applicable and shall be at a scale appropriate to the overall design of the Project.
3.4Screening. All outdoor storage of materials or equipment shall be screened to the extent
and manner required by the City of Tustin. Tops of equipment shall be compatibly screened from
view from the surrounding streets and from future mid-rise buildings which may be located or
constructed in the immediate area to the northorwest of the Project.
3.5Landscaping.Developershall provide landscaping within the Landscape Areas as
defined in the DDA. This shall include Landscape Improvements along all of the Development
Parcel street frontages(from back of curb to the perimeter walls of the Project), including Tustin
Ranch Road,Park Avenue, Victory Road, and Moffett Drive as required by the Landscape
Maintenance Agreement and Landscape Improvements within the Common Areas of the Project
Improvements shall comply with the Specific Plan, City Landscape Guidelines, the conditions of
approval related to landscaping,plans and drawings approved by the City. Developershall
maintainall such landscapinguntil responsibility therefor has been as
Association.
3.6Utilities.All utilities on the Development Parcelsshall be undergrounded.
3.7Maximum Development Thresholds/ Residential Land Use/Trip Budget. Development
on the Development Parcelsshall not exceed 218units for the Disposition Parcel 6B.
4.0Development Parcels Preparation and Demolition
.The Development Parcels shall be
delivered to Developer in an as-is condition; Developer shall carry out all site preparation
(including, without limitation, demolitionand relocation of utilities) necessary for the provision of
the Horizontal Improvements, Phase Improvements and Vertical Improvements. Site preparation
shall include the following, without limitation:
4.1Demolition. Demolition activities shall include, without limitation:
a)Insofar as necessary to provide the Improvements, the reduction and removal of any
structures and improvements from the Development Parcels, including subsurface
structures, and the removal of all bricks, lumber, pipes, equipment and other materials and
all debris and rubbish resulting from such demolition.
b)Insofaras necessary to provide the Improvements, the removal of all paving (including
catch basins, curbs, gutters, drives and sidewalks) within or on the Development Parcels.
c)Removal and abandonment by public utility companies of such utility lines, installation,
facilities and related equipment within the Development Parcelsrequiredto effectuate the
purposes of the Project and this Agreement. Developerwill also be responsible for
accepting a Bill of Sale of all City-owned utility systems previously owned by the military
on the Development Parcelsand for removal and abandonment of those systems for
construction of Improvements.
The City is not responsible in any way for the filling of any excavation, nor for grading or
compaction. Soil conditions shall be solely the responsibility of Developer.
4.2Soil Conditions. Developerassumes responsibility to deal with all portions of the
Development ParcelsSection4.5of
the Agreement. It shall be solely the responsibility ofDeveloper to investigate and determine the
soil and subsurface conditions of the Development Parcels. Without limiting in any manner the
provisions of the DDA, in the event such investigation indicates the conditions are not in all
respects entirely suitable for the use or uses to be included in the Project, then the City shall have
no responsibility or obligation to take such action as may be necessary to place the Development
Parcelsand the soil conditions of the Development Parcelsin all respects in a condition entirely
suitable for the development of the Development Parcels.
ATTACHMENT 10A
LIST OF ENVIRONMENTAL REPORTS AND STATEMENTS
1.
2.Department of Navy findings and determinations that the Development Parcels were
to Transfer For Parcels 23, 29, 34, 35, and 36and Portions of 1, 16, 17, 24, 27, 28,40 and
April 22, 2002.
3.Agreement Between The United States of America and The City of Tustin, California for
the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated May
13,2002
4.Lease in Furtherance of Conveyance Between The United States of America and The
City of Tustin, California for Portions of Former Marine Corps Air Station Tustin dated
May 13, 2002
5.Quitclaim Deed H and Environmental Restriction Pursuant to Civil Code Section 1471
dated May 13, 2002 and Recorded on May 14, 2002 as Instrument Number 20020404598
6.Department of Navy findings and determinations that the Development Parcels were
ng of Suitability
to Transfer For A Portion of Parcel 1 (CO-11) and Portions of Parcels 16, 27, and 40
(CO-
7.Quitclaim Deed II-G-5 and II-H-9 and Environmental Restriction Pursuant to Civil Code
Section 1471 dated March 26, 2003 and Recorded on May 9, 2003 as Instrument Number
2003000533361
8.Background Metals Information for Former MCAS Tustin:
a.Draft Final Background Concentrations of Metals Issue Paper Marine Corps Air
Station Tustin, California dated October 1996
b.Proposed Site Specific Preliminary Remediation Goal for Cadmium Tustin
Legacy Community Partners LLC Former Marine Corps Air Station letter from
Pacific States Environmental Contractors Inc. dated May 4, 2009
c.Background for Acceptable Cadmium Soil Concentration at MCAS Tustin memo
from Pacific States Environmental Contractors Inc. dated June 16, 2011.
9.Legacy Road Stained Soil Excavation
a.Hydrocarbon Impacted Soil Excavation, Legacy Road Construction at Former
MCAS Tustin memo from Pacific States Environmental Contractors Inc. dated
May 30, 2012
b.DTSC Approval of Legacy Road Stained Soil Remediation Report dated May 31,
2012
ATTACHMENT 10B
CITY ACTIVITIES AFTER MAY 2002
1.2011
a.TPH soil discovery in Legacy (Victory) Roadduring road grading activities
2.2015
a.Park Avenue/Moffett Drive extension project (KEC)
i.July 2015-April 2017
b.Rough gradingof subject property(KEC)
i.September 2015-August 2016
c.License 15-005 (Standard Pacific)
i.May 2015-June 2015
ii.Parking for Greenwood model opening
3.2017
a.License 17-009 (CalAtlantic)
i.June 2017-December 2017
ii.Storage for Greenwood construction materials
b.Legacy/Moffett Extension (Sukut)
i.November 2017-TBD
ATTACHMENT 11
QUITCLAIM DEED
CITY OF TUSTIN OFFICIAL
BUSINESS REQUEST DOCUMENT
TO BE RECORDED AND TO BE
EXEMPT FROM RECORDING FEES
PER GOVERNMENT CODE §6103
AND §27383.
Recording requested by andwhen
recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Mail Tax Statements to:
Attn:
SPACE ABOVE THIS LINE FOR
QUITCLAIM DEEDFORDISPOSITION PARCEL6B
AND COVENANTS, CONDITIONS AND RESTRICTIONS, INCLUDING
ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471
[[467,2017,2099,2074][12][B,I,][Times New Roman]][PRIOR TO EXECUTION, CONFORM ALL QUOTED SECTIONS OF DDA
[[818,2074,1766,2131][12][B,I,][Times New Roman]]TO THEN CURRENT VERSION OF DDA]
This Quitclaim Deed For Disposition Parcel6Band Covenants, Conditions and
Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471(this
Quitclaim Deed
___day of _______,201_, by the CITY OF TUSTIN,
GRANTOR
California, a municipal corporation of the State of Cal
GRANTEE
____________, a ______________(the
WHEREAS:
Government
into that certain Agreement between the United States of America (acting by and through
the Secretary of the Navyor designee) and the City of Tustin, California, for the
MCAS
Conveyance of a Portion of the Former Marine Corps Air Station Tustin
TustinConveyance Agreement
;
Pursuant to the Conveyance Agreement, the Government conveyed property at the
Grantor Property
GRANTOR pursuant to (1) that certain Quitclaim DeedHand Environmental Restriction
Pursuant to Civil Code Section 1471dated May 13, 2002, that was recorded on May 14,
Official
2002 in the Officeof the County Recorder, Orange County,California (the
RecordsGovernment Deed I-H
Instrument Number 20020404598,and (2) that
certain Quitclaim Deed for Parcels II-G-5 and II-H-9 and Environmental Restriction
Pursuant to Civil Code Section 1471 dated March 26, 2003, that was Recorded on May 9,
Government DeedsII-G and II-H
2003 as Instrument Number 2003000533361 (
Government Deeds
collectivelywith Government Deed I-H,the
Pursuant to California Civil Code §1471, the Government determined that it is
reasonably necessary to impose certain restrictions on the use of the Grantor Property to
protect present and future human health or safety or the environment as a result of the
presence of hazardous materials on portions of the Grantor Property described hereinafter
with particularity;
The GRANTOR and the GRANTEE entered into the following: (i) that certain
Tustin Legacy Disposition and Development Agreement ForDisposition Parcel6B, dated
DDA
as of______,201_(, providing for the sale and development of a portion of
the Grantor Property; and (ii) that certain Memorandum ofTustin LegacyDisposition and
Memorandum ofDDA
Development Agreement For Disposition Parcel6B
recorded in the Official Records of even date with and immediately prior to the recording
of this Quitclaim Deed;
The GRANTOR has executed that certainDeclaration of Special Restrictionsfor
Special Restrictions
Disposition Parcel6B
shall be recorded in the Official Records immediately prior to the recording of this
Quitclaim Deed; and
The GRANTOR desires to convey and the GRANTEE desires to acquire a portion
of the Grantor Property to facilitate economic redevelopment in accordance withthat
certain MCAS TustinReuse Plan adopted by the City Council of the City on October 17,
Reuse Plan
1996 and amended in September, 1998 (theapproved by the
Government for MCASTustin.
1.NOW THEREFORE, the GRANTOR, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby remise, release and forever quitclaim
to the GRANTEE, a
property, comprising approximately 14.45 gross acres of land, more particularly described on
Land
her with
all existing improvements, if any, presently located on the Land, all appurtenances pertaining to
theParcels (as hereinafter defined) or such improvements and all permits, licenses, approvals and
authorizations issued by any Governmental Authority in connection with the Parcels. The Land,
Parcels
less and except all of the matters in Section 2 of this Quitclaim Deed, is referred to as the
2.EXCEPTING THEREOUT AND THEREFROM, however, and reserving to the
GRANTOR, its successors and assigns, together with the right to grant and transfer all or a portion
of the same, the following:
2.1Any and all oil, oil rights, minerals, mineral rights, natural gas, natural gas rights
and other hydrocarbon by whatsoever name known, geothermal steam and allproducts derived
from any of the foregoing, that may be within or under the Land together with the perpetual right
of drilling, mining, exploring for and storing in and removing the same from the Land or any other
land, including the right to whipstock ordirectionally drill and mine from lands other than the
Land, oil or gas wells, tunnels and shafts into, through or across the subsurface of the Land and to
bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or
beyond the exterior limits thereof, and to re-drill, re-tunnel, equip, maintain, repair, deepen and
operate any such well or mines; but without, however, the right to enterupon or use the surface of
the Landin the exercise of such rights or otherwise adversely affect the use or operation of the
Landas anticipated by this Agreement or the structural integrity of any improvements on the Land.
2.2Any and all water, water rights or interests therein appurtenant or relating to the
Land or owned or used by the GRANTORin connection with or with respect to the Land no matter
how acquired by the GRANTOR, whether such water rights shall be riparian, overlying,
appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with
the perpetual right and power to explore, drill, re-drill and remove the same from or in the Land,
to store the same beneath the surface of the Landand to divert or otherwise utilize such water,
rights or interests on any other property owned or leased by the GRANTOR; but without, however,
the right to enter upon or use the surface of the Landin the exercise of such rights or otherwise
adversely affect the use or operation of the Landas anticipated by this Agreement or the structural
integrity of any improvements on the Land.
2.3Those excess development rights remaining within Specific Plan Neighborhood G,
Planning Area 15 after deducting the number of residential units constructed by GRANTEEprior
toRecordingof the Certificate of Compliance (which number shall be set forth in and established
by the Certificate of Compliance)and, except to the extent any of such rights were conveyed by
theGRANTORto third parties prior to the Effective Date, the GRANTORshall retain all
residential units and all development rights associated with Specific Plan Neighborhood G,
Planning Area 15 in excess of the units shown on the Recorded Certificate of Compliance, and the
units and development rights retained by the GRANTORshall be freely transferable by the
GRANTORthroughout Tustin Legacy.
Notwithstanding anything to the contrary set forth in this Quitclaim Deed, the reservation
by the GRANTOR of the rightsand interests in this Section2 shall not be deemed to limit the
right toconstruct foundations and other subsurface improvements for the purpose
of constructing the Project, and otherwise engage in subsurface construction activity in order to
construct the Project.
3.SUBJECT TO THE FOLLOWING NOTICES, COVENANTS, RESTRICTIONS, AND
CONDITIONS,which shall bebinding upon and enforceable against theParcelsand the
GRANTEE, and its successors and assigns, in perpetuity:
3.1The GRANTEE agrees to accept conveyance of theParcelssubject to all covenants,
conditions, restrictions, easements, rights-of-way, reservations, rights, agreements and
encumbrances of record, including, without limitation, the DDA, the Memorandum of DDA,and
the Special Restrictions, which are covenants running with the land and are binding upon the
GRANTEE and all successors and assigns of the GRANTEE owning all or any portion ofParcels
for the benefit of the GRANTOR and its successors and assigns, unless or until such
responsibilities and obligations are released pursuant to the provisions of the aforesaid documents,
including the release of obligations under the DDA that GRANTEE may obtain pursuant to a
Certificate of Compliance(as defined and further provided for in the DDA)executed by the
GRANTORand recorded against the Parcels.
3.2The Government Deedsconveying theParcelsto the GRANTOR wererecorded
prior to recordation of this Quitclaim Deed. The GRANTOR has no knowledge regarding the
accuracy of information provided by the Government regarding the environmental condition of
theParcelsand makes no warranties regarding the environmental conditions of theParcels. The
remediation of theParcelsas provided in the Government Deeds.The foregoing Section 3.2 does
not limit or restrict any representations, warranties, covenants or obligationsthat the GRANTOR
may have made solely for the benefit of the GRANTEE(and its permitted transferees)in the DDA
or any other agreement.
3.3Government Deed I-H. The italicized information below is copied verbatim
(except as discussed below) from Sections 2.2 through 2.6, and Sections 2.8, 2.9and 3of
Government Deed I-Hconveying a portion of the Grantor Property to the GRANTOR. To the
extent applicable to theParcelsconveyed hereunder, by acceptance of this Quitclaim Deed, the
GRANTEE,on behalf of itself and its successors and assigns acquiring fee title to all or any portion
of the Property, hereby acknowledges and assumes all responsibilities placed upon the GRANTOR
under the terms of the aforesaid Government DeedI-H. Within the italicized information
contained in this Section 3.3
l mean the Grantor Property,
including, without limitation, theParcels. To avoid confusion, within the italicized information,
brackets
[[450,2214,538,2271][12][,I,][Times New Roman]]2.2 [[598,2214,741,2271][12][,I,][Times New Roman]]FOST [[720,2214,770,2271][12][,I,][Times New Roman]]s [[763,2214,885,2271][12][,I,][Times
New Roman]]have
[[450,2272,1111,2329][12][,I,][Times New Roman]]report is referenced in the FOST [[1090,2272,1140,2329][12][,I,][Times New Roman]]s [[1109,2272,1357,2329][12][,I,][Times New Roman]].
The FOST [[1335,2272,1385,2329][12][,I,][Times New Roman]]s [[1364,2272,2300,2329][12][,I,][Times New Roman]]and EBS reference environmental conditions
[[450,2329,1769,2386][12][,I,][Times New Roman]]on the Property and on other property not subject to this De [[1741,2329,1851,2386][12][,I,][Times New Roman]]ed. [[1821,2329,2091,2386][12][,I,][Time
s New Roman]]GRANTEE
[[1984,2387,2034,2444][12][,I,][Times New Roman]]s [[2017,2387,2300,2444][12][,I,][Times New Roman]]and that all
[[450,2444,1685,2501][12][,I,][Times New Roman]]documents referenced therein have been made available to [[1649,2444,1919,2501][12][,I,][Times New Roman]]GRANTEE
[[441,2502,1047,2559][12][,I,][Times New Roman]]for inspection and copying.
[[450,2609,538,2666][12][,I,][Times New Roman]]2.3 [[598,2609,2299,2666][12][,I,][Times New Roman]]Except as otherwise provided herein, or as otherwise provided by law, the
[[450,2667,720,2724][12][,I,][Times New Roman]]GRANTEE
[[450,2782,525,2839][12][,I,][Times New Roman]]an
[[450,2839,624,2896][12][,I,][Times New Roman]]of the [[598,2839,873,2896][12][,I,][Times New Roman]]GRANTOR
[[450,281,2299,338][12][,I,][Times New Roman]]regarding the making of any alterations, improvements, repairs or additions. Except for
[[450,339,539,396][12][,I,][Times New Roman]]the [[530,339,2056,396][12][,I,][Times New Roman]]environmental remediation which may be required to be undertaken by [[2025,339,2270,396][12][,I,][Times
New Roman]]GRANTOR
[[1065,397,1122,454][12][,I,][Times New Roman]]p [[1097,397,1654,454][12][,I,][Times New Roman]]aragraph 2.6 below, the [[1625,397,1864,454][12][,I,][Times New Roman]]GRANTEE
[[441,454,1118,511][12][,I,][Times New Roman]]further acknowledges that the [[1089,454,1334,511][12][,I,][Times New Roman]]GRANTOR
[[450,512,846,569][12][,I,][Times New Roman]]latent or patent de [[809,512,1596,569][12][,I,][Times New Roman]]fects in the Property except to the ext [[1561,512,2225,569][12][,I,][Times
New Roman]]ent required by applicable law.
[[450,619,563,676][12][B,I,][Times New Roman]]2.4. [[597,619,1250,676][12][B,I,][Times New Roman]]Asbestos Containing Material
[[600,727,650,784][12][,I,][Times New Roman]]2 [[625,727,750,784][12][,I,][Times New Roman]].4.1. [[750,727,989,784][12][,I,][Times New Roman]]GRANTEE [[1450,727,2300,784][12][,I,][Times
New Roman]]is hereby informed an does hereby
[[450,784,2049,841][12][,I,][Times New Roman]]acknowledge that hazardous materials in the form of asbestos or asbestos [[2020,784,2070,841][12][,I,][Times New Roman]]- [[2036,784,2300,841][12][,I,][T
imes New Roman]]containing
[[1188,842,1368,899][12][,I,][Times New Roman]]and are [[1350,842,1594,899][12][,I,][Times New Roman]]otherwise [[1548,842,1605,899][12][,I,][Times New Roman]]p [[1580,842,1999,899][12][,I,][Times
New Roman]]resumed to exist in [[1959,842,2009,899][12][,I,][Times New Roman]][ [[1979,842,2300,899][12][,I,][Times New Roman]]buildings and
[[450,899,681,956][12][,I,][Times New Roman]]structures [[645,899,699,956][12][,I,][Times New Roman]]] [[682,899,1443,956][12][,I,][Times New Roman]]on the Property. The EBS and FOST
[[1421,899,1471,956][12][,I,][Times New Roman]]s [[1452,899,1502,956][12][,I,][Times New Roman]]d [[1477,899,2156,956][12][,I,][Times New Roman]]isclose the presence of known as [[2126,899,2176,956]
[12][,I,][Times New Roman]]b [[2151,899,2301,956][12][,I,][Times New Roman]]estos
[[450,957,1813,1014][12][,I,][Times New Roman]]or ACM hazards in such buildings and structures on the Property.
[[600,1064,650,1121][12][,I,][Times New Roman]]2 [[625,1064,725,1121][12][,I,][Times New Roman]].4.2 [[750,1064,989,1121][12][,I,][Times New Roman]]GRANTEE [[1369,1064,2260,1121][12][,I,][Times
New Roman]]covenants, on behalf of itself, its successor [[2230,1064,2280,1121][12][,I,][Times New Roman]]s
[[450,1122,2299,1179][12][,I,][Times New Roman]]and assigns, as a covenant running with the land, that it will prohibit occupancy and use
[[450,1179,2299,1236][12][,I,][Times New Roman]]of buildings and structures, or portions thereof, containing known asbestos or ACM
[[450,1237,2152,1294][12][,I,][Times New Roman]]hazards prior to abatement of such hazards. In connection with its use and occupa [[2129,1237,2300,1294][12][,I,][Times New Roman]]ncy
of
[[450,1294,2299,1351][12][,I,][Times New Roman]]the Property, including, but not limited to, demolition of buildings and structures
[[450,1352,2299,1409][12][,I,][Times New Roman]]containing asbestos or ACM, it will comply with all applicable federal, state and local laws
[[450,1409,1097,1466][12][,I,][Times New Roman]]relating to asbestos and ACM. [[1072,1409,1172,1466][12][,I,][Times New Roman]]. . .
[[600,1517,713,1574][12][,I,][Times New Roman]]2.4. [[675,1517,725,1574][12][,I,][Times New Roman]]4 [[750,1517,875,1574][12][,I,][Times New Roman]]The [[848,1517,1093,1574][12][,I,][Times
New Roman]]GRANTOR [[1462,1517,1532,1574][12][,I,][Times New Roman]]sh [[1506,1517,1832,1574][12][,I,][Times New Roman]]all provide a [[1803,1517,1855,1574][12][,I,][Times New Roman]]N
[[1839,1517,2048,1574][12][,I,][Times New Roman]]otice of [[2019,1517,2071,1574][12][,I,][Times New Roman]]R [[2051,1517,2300,1574][12][,I,][Times New Roman]]elease, in
[[450,1574,977,1631][12][,I,][Times New Roman]]recordable form, to the [[944,1574,1183,1631][12][,I,][Times New Roman]]GRANTEE [[1574,1574,2222,1631][12][,I,][Times New Roman]]at such
time as demolition of [[2189,1574,2278,1631][12][,I,][Times New Roman]]the
[[450,1632,2299,1689][12][,I,][Times New Roman]]buildings on the Property containing ACM has been completed and the appropriate
[[448,1689,1661,1746][12][,I,][Times New Roman]]government regulatory agency(s) have confirmed in writi [[1626,1689,1860,1746][12][,I,][Times New Roman]]ng to the [[1827,1689,2066,1746][12][,I,][Tim
es New Roman]]GRANTEE
[[652,1747,2299,1804][12][,I,][Times New Roman]]that ACM has been removed from the buildings and any necessary soil
[[450,1804,2239,1861][12][,I,][Times New Roman]]remediation has been conducted in accordance with all applicable federal, state, and loc [[2212,1804,2301,1861][12][,I,][Times New Roman]]al
[[450,1862,1054,1919][12][,I,][Times New Roman]]laws and regulations. This [[1018,1862,1070,1919][12][,I,][Times New Roman]]N [[1054,1862,1255,1919][12][,I,][Times New Roman]]otice
of [[1218,1862,1270,1919][12][,I,][Times New Roman]]R [[1251,1862,1721,1919][12][,I,][Times New Roman]]elease shall be deeme [[1693,1862,2300,1919][12][,I,][Times New Roman]]d to remove
all notices and
[[450,1919,1585,1976][12][,I,][Times New Roman]]restrictions relating to ACM from the Property. The [[1553,1919,1798,1976][12][,I,][Times New Roman]]GRANTOR [[2154,1919,2300,1976][12][,I,][Times
New Roman]]shall
[[450,1977,2300,2034][12][,I,][Times New Roman]]have no obligation under this subparagraph for the demolition of buildings or the removal
[[450,2034,1627,2091][12][,I,][Times New Roman]]of ACM or soil remediation related to such demolition or [[1609,2034,1960,2091][12][,I,][Times New Roman]]removal action.
[[450,2142,563,2199][12][B,I,][Times New Roman]]2.5. [[598,2142,1137,2199][12][B,I,][Times New Roman]]Lead Based Paint (LBP)
[[600,2249,650,2306][12][,I,][Times New Roman]]2 [[625,2249,750,2306][12][,I,][Times New Roman]].5.1. [[750,2249,1601,2306][12][,I,][Times New Roman]]The Property may include improvements
[[1585,2249,1793,2306][12][,I,][Times New Roman]]. . . that [[1758,2249,2300,2306][12][,I,][Times New Roman]]are presumed to contain
[[448,2307,558,2364][12][,I,][Times New Roman]]LBP [[551,2307,1899,2364][12][,I,][Times New Roman]]because they are thought to have been constructed prior to 1978. [[1915,2307,2300,2364][12][,I,][Ti
mes New Roman]]Lead from paint,
[[443,2364,1280,2421][12][,I,][Times New Roman]]paint chips, and dust can pose health h [[1256,2364,2300,2421][12][,I,][Times New Roman]]azards if not managed properly. Pursuant to
40
[[450,2479,2300,2536][12][,I,][Times New Roman]]residential real property on which a residential dwelling was built prior to 1978 is notified
[[450,2537,997,2594][12][,I,][Times New Roman]]that such property may p [[973,2537,1697,2594][12][,I,][Times New Roman]]resent exposure to lead from lead [[1672,2537,1722,2594][12][,I,][Times
New Roman]]- [[1688,2537,2300,2594][12][,I,][Times New Roman]]based paint that may place
[[445,2594,2299,2651][12][,I,][Times New Roman]]young children at risk of developing lead poisoning. Lead poisoning in young children
[[450,2652,2299,2709][12][,I,][Times New Roman]]may produce permanent neurological damage, including learning disabilities, reduced
[[450,2709,942,2766][12][,I,][Times New Roman]]intelligence quotient, b [[918,2709,2300,2766][12][,I,][Times New Roman]]ehavioral problems, and impaired memory. Lead poisoning also
[[443,2767,2299,2824][12][,I,][Times New Roman]]poses a particular risk to pregnant women. The seller of any interest in residential real
[[443,2824,1860,2881][12][,I,][Times New Roman]]property is required to provide the buyer with any information on lead [[1836,2824,1886,2881][12][,I,][Times New Roman]]- [[1852,2824,2300,2881][12][,I
,][Times New Roman]]based paint hazards
[[441,281,720,338][12][,I,][Times New Roman]]from risk as
[[450,339,705,396][12][,I,][Times New Roman]]known lead [[680,339,730,396][12][,I,][Times New Roman]]- [[696,339,2141,396][12][,I,][Times New Roman]]based paint hazards. A risk assessment
or inspection for possible lead [[2117,339,2167,396][12][,I,][Times New Roman]]- [[2133,339,2300,396][12][,I,][Times New Roman]]based
[[600,504,650,561][12][,I,][Times New Roman]]2 [[625,504,725,561][12][,I,][Times New Roman]].5.2 [[750,504,875,561][12][,I,][Times New Roman]]The [[852,504,1091,561][12][,I,][Times
New Roman]]GRANTEE [[1521,504,2300,561][12][,I,][Times New Roman]]hereby acknowledges the required
[[450,562,2299,619][12][,I,][Times New Roman]]disclosure of the presence of any known LBP and/or LBP hazards in target housing
[[450,619,1843,676][12][,I,][Times New Roman]]constructed prior to 1978 in accordance with the Residential Lead [[1819,619,1869,676][12][,I,][Times New Roman]]- [[1834,619,2300,676][12][,I,][Times
New Roman]]Based Paint Hazard
[[448,677,1446,734][12][,I,][Times New Roman]]Reduction Act of 1992, 42 U.S.C. Section 485 [[1422,677,1472,734][12][,I,][Times New Roman]]2 [[1447,677,1703,734][12][,I,][Times New Roman]]d
(Title X) [[1669,677,1848,734][12][,I,][Times New Roman]]. The [[1819,677,2058,734][12][,I,][Times New Roman]]GRANTEE
[[643,734,2300,791][12][,I,][Times New Roman]]acknowledges the receipt of available records and reports pertaining to LBP
[[450,792,2300,849][12][,I,][Times New Roman]]and/or LBP hazards and receipt of the Environmental Protection Agency (EPA) approved
[[1971,849,2021,906][12][,I,][Times New Roman]]7 [[1996,849,2046,906][12][,I,][Times New Roman]]- [[2010,849,2062,906][12][,I,][Times New Roman]]K [[2046,849,2096,906][12][,I,][Times
New Roman]]- [[2062,849,2137,906][12][,I,][Times New Roman]]94 [[2112,849,2162,906][12][,I,][Times New Roman]]¬ [[2146,849,2313,906][12][,I,][Times New Roman]]001).
[[448,907,858,964][12][,I,][Times New Roman]]Furthermore, the [[834,907,1073,964][12][,I,][Times New Roman]]GRANTEE [[1499,907,2300,964][12][,I,][Times New Roman]]acknowledges that
it has read and
[[450,964,1101,1021][12][,I,][Times New Roman]]understood the EPA pamphlet.
[[600,1072,650,1129][12][,I,][Times New Roman]]2 [[625,1072,725,1129][12][,I,][Times New Roman]].5.3 [[763,1072,888,1129][12][,I,][Times New Roman]]The [[862,1072,1101,1129][12][,I,][Times
New Roman]]GRANTEE [[1521,1072,2300,1129][12][,I,][Times New Roman]]covenants and agrees that, in any
[[450,1129,2299,1186][12][,I,][Times New Roman]]improvements on the Property defined as target housing by Title X and constructed prior
[[450,1187,2299,1244][12][,I,][Times New Roman]]to 1978, LBP hazards will be disclosed to potential occupants in accordance with Title X
[[450,1244,1377,1301][12][,I,][Times New Roman]]before use of such improvements as a residen [[1352,1244,2300,1301][12][,I,][Times New Roman]]tial dwelling (as defined in Title X).
Further,
[[450,1302,539,1359][12][,I,][Times New Roman]]the [[521,1302,760,1359][12][,I,][Times New Roman]]GRANTEE [[1123,1302,2300,1359][12][,I,][Times New Roman]]covenants and agrees that LBP
hazards in target housing
[[449,1359,2299,1416][12][,I,][Times New Roman]]will be abated in accordance with Title X before use and occupancy as a residential
[[1212,1417,2300,1474][12][,I,][Times New Roman]]y housing constructed prior to 1978, except housing
[[441,1474,2299,1531][12][,I,][Times New Roman]]for the elderly or persons with disabilities (unless any child who is less than six [6] years
[[450,1532,1837,1589][12][,I,][Times New Roman]]of age resides, or is expected to reside, in such housing) or any zero [[1812,1532,1862,1589][12][,I,][Times New Roman]]- [[1829,1532,2242,1589][12][,I
,][Times New Roman]]bedroom dwelling.
[[600,1639,650,1696][12][,I,][Times New Roman]]2 [[625,1639,725,1696][12][,I,][Times New Roman]].5.4 [[750,1639,875,1696][12][,I,][Times New Roman]]The [[838,1639,1077,1696][12][,I,][Times
New Roman]]GRANTEE [[1450,1639,2300,1696][12][,I,][Times New Roman]]covenants and agrees that in its use and
[[450,1697,2299,1754][12][,I,][Times New Roman]]occupancy of the Property, it will comply with Title X and all applicable federal, state, and
[[450,1754,1182,1811][12][,I,][Times New Roman]]local laws relating to LBP. The [[1152,1754,1391,1811][12][,I,][Times New Roman]]GRANTEE [[1792,1754,2300,1811][12][,I,][Times New Roman]]acknowledge
s that the
[[450,1812,695,1869][12][,I,][Times New Roman]]GRANTOR [[1041,1812,2300,1869][12][,I,][Times New Roman]]assumes no liability for damages for personal injury, illness,
[[450,1869,1004,1926][12][,I,][Times New Roman]]disability, or death to the [[967,1869,1206,1926][12][,I,][Times New Roman]]GRANTEE [[1566,1869,2300,1926][12][,I,][Times New Roman]],
or to any other person, including
[[450,1927,2299,1984][12][,I,][Times New Roman]]members of the general public, arising from or incident to the purchase, transportation,
[[450,1984,764,2041][12][,I,][Times New Roman]]removal, hand [[740,1984,2299,2041][12][,I,][Times New Roman]]ling, use, disposition, or other activity causing or leading to contact of
any
[[450,2042,2299,2099][12][,I,][Times New Roman]]kind whatsoever with LBP on the Property, arising after the conveyance of the Property
[[441,2099,672,2156][12][,I,][Times New Roman]]from the [[639,2099,884,2156][12][,I,][Times New Roman]]GRANTOR [[1239,2099,1406,2156][12][,I,][Times New Roman]]to the [[1372,2099,1610,2156][12][,I,
][Times New Roman]]GRANTEE [[1984,2099,2300,2156][12][,I,][Times New Roman]], whether the
[[450,2157,689,2214][12][,I,][Times New Roman]]GRANTEE [[1053,2157,2300,2214][12][,I,][Times New Roman]]has properly warned, or failed to properly warn, the persons
[[450,2214,644,2271][12][,I,][Times New Roman]]injured.
[[600,2322,650,2379][12][,I,][Times New Roman]]2 [[625,2322,725,2379][12][,I,][Times New Roman]].5.5 [[750,2322,875,2379][12][,I,][Times New Roman]]The [[850,2322,1095,2379][12][,I,][Times
New Roman]]GRANTOR [[1468,2322,2079,2379][12][,I,][Times New Roman]]shall provide a notice of r [[2049,2322,2300,2379][12][,I,][Times New Roman]]elease, in
[[450,2379,977,2436][12][,I,][Times New Roman]]recordable form, to the [[944,2379,1183,2436][12][,I,][Times New Roman]]GRANTEE [[1574,2379,2300,2436][12][,I,][Times New Roman]]at such
time as demolition of the
[[450,2437,761,2494][12][,I,][Times New Roman]]buildings on [[737,2437,2299,2494][12][,I,][Times New Roman]]the Property containing LBP has been completed and the appropriate
[[448,2494,1859,2551][12][,I,][Times New Roman]]government regulatory agency(s) have confirmed in writing to the [[1827,2494,2066,2551][12][,I,][Times New Roman]]GRANTEE
[[633,2552,2300,2609][12][,I,][Times New Roman]]that LBP has been removed from the buildings and any necessary soil remediation
[[450,2609,853,2666][12][,I,][Times New Roman]]has been conducte [[826,2609,2300,2666][12][,I,][Times New Roman]]d in accordance with all applicable federal, state, and local laws and
[[450,2667,2300,2724][12][,I,][Times New Roman]]regulations. This Notice of Release shall be deemed to remove all notices and restrictions
[[450,2724,1372,2781][12][,I,][Times New Roman]]relating to LBP from the Property. The [[1347,2724,1592,2781][12][,I,][Times New Roman]]GRANTOR [[1961,2724,2300,2781][12][,I,][Times
New Roman]]shall have no
[[450,2782,816,2839][12][,I,][Times New Roman]]obligation under [[799,2782,2300,2839][12][,I,][Times New Roman]]this subparagraph for the demolition of buildings or the removal of LBP
[[450,2839,1790,2896][12][,I,][Times New Roman]]or soil remediation related to such demolition or removal action.
[[598,281,761,338][12][B,I,][Times New Roman]]Notice [[733,281,783,338][12][B,I,][Times New Roman]]s [[762,281,1111,338][12][B,I,][Times New Roman]]And Covenants
[[450,282,525,339][12][,I,][Times New Roman]]2. [[488,282,538,339][12][,I,][Times New Roman]]6 [[1081,282,1131,339][12][,I,][Times New Roman]].
[[748,388,1711,445][12][B,I,][Times New Roman]]Notices: Hazardous Substance Notification
[[600,389,675,446][12][,I,][Times New Roman]]2. [[638,389,688,446][12][,I,][Times New Roman]]6 [[663,389,751,446][12][,I,][Times New Roman]].1. [[1690,389,2300,446][12][,I,][Times New
Roman]]. Pursuant to 42 U.S.C.
[[450,447,1640,504][12][,I,][Times New Roman]]§9620(h)(3)(A), and the provisions of 40 C.F.R. part 373,
[[450,504,2299,561][12][,I,][Times New Roman]]hereby gives notice that hazardous substances were stored for one year or more, released
[[450,562,1668,619][12][,I,][Times New Roman]]or disposed of on the Property. The information containe [[1641,562,2300,619][12][,I,][Times New Roman]]d in this notice is required by
[[450,619,1307,676][12][,I,][Times New Roman]]regulations promulgated under Section [[1295,619,2300,676][12][,I,][Times New Roman]]120(h) of the Comprehensive Environmental
[[2079,677,2129,734][12][,I,][Times New Roman]]. [[2103,677,2300,734][12][,I,][Times New Roman]]Section
[[450,734,658,791][12][,I,][Times New Roman]]9620(h). [[656,734,706,791][12][,I,][Times New Roman]]T [[684,734,1023,791][12][,I,][Times New Roman]]he GRANTOR [[1350,734,1871,791][12][,I,][Times
New Roman]]has made a complete se [[1844,734,2300,791][12][,I,][Times New Roman]]arch of its files and
[[450,792,1150,849][12][,I,][Times New Roman]]records concerning the Property [[1123,792,2300,849][12][,I,][Times New Roman]]. Based on that search, the type and quantity of such
[[450,849,2299,906][12][,I,][Times New Roman]]hazardous substances, the time at which such storage, release or disposal took place, to
[[450,907,1644,964][12][,I,][Times New Roman]]the extent such information is available, and a description [[1633,907,2300,964][12][,I,][Times New Roman]]of the remedial action taken,
if
[[450,964,550,1021][12][,I,][Times New Roman]]any [[522,964,572,1021][12][,I,][Times New Roman]], [[1091,964,1141,1021][12][,I,][Times New Roman]], [[1114,964,1164,1021][12][,I,][Times
New Roman]][ [[1133,964,1348,1021][12][,I,][Times New Roman]]which is [[1309,964,2028,1021][12][,I,][Times New Roman]]attached to this Quitclaim Deed as
[[450,1022,824,1079][12][,I,][Times New Roman]]and incorporated [[811,1022,1312,1079][12][,I,][Times New Roman]]herein by this reference [[1279,1022,1355,1079][12][,I,][Times New Roman]]].
[[750,1128,2270,1185][12][B,I,][Times New Roman]]Grant of Covenant [CERCLA 42 U.S.C. Section 9620 (h)(3)(A)(ii)(I)]
[[600,1129,675,1186][12][,I,][Times New Roman]]2. [[638,1129,688,1186][12][,I,][Times New Roman]]6 [[663,1129,751,1186][12][,I,][Times New Roman]].2. [[2237,1129,2287,1186][12][,I,][Times
New Roman]].
[[450,1187,763,1244][12][,I,][Times New Roman]]The GRANTO [[748,1187,800,1244][12][,I,][Times New Roman]]R [[1183,1187,2300,1244][12][,I,][Times New Roman]]covenants and warrants that
all remedial action
[[450,1244,2299,1301][12][,I,][Times New Roman]]necessary to protect human health and the environment with respect to any hazardous
[[450,1302,2098,1359][12][,I,][Times New Roman]]substance remaining on the Property has been taken before the date of transfer.
[[747,1408,1194,1465][12][B,I,][Times New Roman]]Additional Remedia [[1170,1408,2300,1465][12][B,I,][Times New Roman]]tion Obligation [CERCLA 42 U.S.C. Section 9620
[[600,1409,675,1466][12][,I,][Times New Roman]]2. [[638,1409,688,1466][12][,I,][Times New Roman]]6 [[663,1409,751,1466][12][,I,][Times New Roman]].3.
[[450,1466,819,1523][12][B,I,][Times New Roman]](h)(3)(A)(ii)(II)]
[[786,1467,1252,1524][12][,I,][Times New Roman]]. The GRANTOR [[1614,1467,2300,1524][12][,I,][Times New Roman]]covenants and warrants that
[[450,1524,725,1581][12][,I,][Times New Roman]]GRANTOR [[1057,1524,2299,1581][12][,I,][Times New Roman]]shall conduct any additional remedial action found to be
[[450,1582,1543,1639][12][,I,][Times New Roman]]necessary after the date of transfer for any hazardou [[1519,1582,2300,1639][12][,I,][Times New Roman]]s substance existing on the Property
[[443,1639,2299,1696][12][,I,][Times New Roman]]prior to the date of this Deed. This covenant shall not apply to the extent that the
[[450,1697,720,1754][12][,I,][Times New Roman]]GRANTEE [[1068,1697,2300,1754][12][,I,][Times New Roman]]caused or contributed to any release or threatened release
[[450,1754,1428,1811][12][,I,][Times New Roman]]of any hazardous substance, pollutant, or conta [[1403,1754,1592,1811][12][,I,][Times New Roman]]minant.
[[746,1861,1956,1918][12][B,I,][Times New Roman]]Access [CERCLA 42 U.S.C. Section 9620 (h)(3)(A)(iii)]
[[600,1862,675,1919][12][,I,][Times New Roman]]2. [[638,1862,688,1919][12][,I,][Times New Roman]]6 [[663,1862,781,1919][12][,I,][Times New Roman]].4. [[1923,1862,2300,1919][12][,I,][Times
New Roman]]. In connection
[[1219,1919,1574,1976][12][,I,][Times New Roman]]covenant in 2.6 [[1550,1919,2300,1976][12][,I,][Times New Roman]].3 above and in connection with
[[1564,1977,2300,2034][12][,I,][Times New Roman]]property adjacent to the Property,
[[450,2034,720,2091][12][,I,][Times New Roman]]GRANTEE [[1074,2034,2300,2091][12][,I,][Times New Roman]]agrees on behalf of itself, its successors and assigns, as a
[[450,2092,1476,2149][12][,I,][Times New Roman]]covenant running with the land, that GRANTOR [[1784,2092,2300,2149][12][,I,][Times New Roman]], or its officers, agents,
[[450,2149,2299,2206][12][,I,][Times New Roman]]employees, contractors and subcontractors, shall have the right, upon reasonable notice
[[450,2207,514,2264][12][,I,][Times New Roman]]to [[511,2207,781,2264][12][,I,][Times New Roman]]GRANTEE [[1138,2207,2300,2264][12][,I,][Times New Roman]], to enter upon the Property
in any case in which a
[[450,2264,2299,2321][12][,I,][Times New Roman]]response or corrective action is found to be necessary at such property after the date of
[[450,2322,655,2379][12][,I,][Times New Roman]]this deed [[631,2322,681,2379][12][,I,][Times New Roman]], [[657,2322,2221,2379][12][,I,][Times New Roman]]or such access is necessary
to carry out a response action or corrective act [[2186,2322,2275,2379][12][,I,][Times New Roman]]ion
[[450,2379,1398,2436][12][,I,][Times New Roman]]on adjoining property. Neither GRANTEE [[1752,2379,2300,2436][12][,I,][Times New Roman]], nor its successors and
[[450,2437,2299,2494][12][,I,][Times New Roman]]assigns, shall have any claim on account of such entries against the United States or any
[[450,2494,2031,2551][12][,I,][Times New Roman]]of its officers, agents, employees, contractors or subcontractors. The right t [[1996,2494,2300,2551][12][,I,][Times New Roman]]o enter
shall
[[450,2552,2299,2609][12][,I,][Times New Roman]]include the right to conduct tests, investigations and surveys, including, where necessary,
[[450,2609,732,2666][12][,I,][Times New Roman]]drilling, test [[696,2609,746,2666][12][,I,][Times New Roman]]- [[706,2609,2300,2666][12][,I,][Times New Roman]]pitting, boring and other
similar activities. Such right shall also include the
[[450,2667,1560,2724][12][,I,][Times New Roman]]right to construct, operate, maintain or undertake any [[1545,2667,2300,2724][12][,I,][Times New Roman]]other response or corrective action
[[450,2724,2267,2781][12][,I,][Times New Roman]]as required or necessary, including, but not limited to monitoring wells, pumping wells [[2238,2724,2288,2781][12][,I,][Times New Roman]],
[[450,2782,2299,2839][12][,I,][Times New Roman]]treatment facilities, and the installation of associated utilities. In exercising these rights
[[450,2839,1141,2896][12][,I,][Times New Roman]]of access, except in case of immin [[1117,2839,2300,2896][12][,I,][Times New Roman]]ent and substantial endangerment to human health or
the
[[450,281,1093,338][12][,I,][Times New Roman]]environment, the GRANTOR [[1430,281,2087,338][12][,I,][Times New Roman]](1) shall give the GRANTEE
[[634,339,2299,396][12][,I,][Times New Roman]]reasonable notice of any action to be taken related to such remedial or corrective
[[450,397,1122,454][12][,I,][Times New Roman]]actions on the Property, and (2) [[1102,397,2300,454][12][,I,][Times New Roman]]make reasonable efforts to minimize interference with the
[[450,454,525,511][12][,I,][Times New Roman]]on [[500,454,550,511][12][,I,][Times New Roman]]- [[515,454,1826,511][12][,I,][Times New Roman]]going use of the Property. Furthermore,
the GRANTOR [[2176,454,2300,511][12][,I,][Times New Roman]]and
[[450,512,658,569][12][,I,][Times New Roman]]GRANTE [[637,512,689,569][12][,I,][Times New Roman]]E [[1078,512,2300,569][12][,I,][Times New Roman]]agree to cooperate in good faith to
minimize any conflict
[[450,569,2299,626][12][,I,][Times New Roman]]between the necessary environmental investigation and remediation activities and the
[[1098,627,2300,684][12][,I,][Times New Roman]]use of the Property. Any inspection, survey, investigation
[[450,684,525,741][12][,I,][Times New Roman]]or [[541,684,2300,741][12][,I,][Times New Roman]]other response, corrective or remedial action undertaken by GRANTOR
[[835,742,2300,799][12][,I,][Times New Roman]]will, to the maximum extent practical, be coordinated with
[[450,799,1399,856][12][,I,][Times New Roman]]representatives designated by the GRANTEE [[1730,799,1780,856][12][,I,][Times New Roman]].
[[1682,907,1857,964][12][,I,][Times New Roman]]remedi [[1820,907,2300,964][12][,I,][Times New Roman]]al actions described
[[450,964,863,1021][12][,I,][Times New Roman]]above, GRANTEE [[1203,964,2300,1021][12][,I,][Times New Roman]]agrees on behalf of itself, its successors and assigns,
[[450,1022,2299,1079][12][,I,][Times New Roman]]as a covenant running with the land, to comply with the provisions of any health or safety
[[443,1079,882,1136][12][,I,][Times New Roman]]plan in effect during [[870,1079,1504,1136][12][,I,][Times New Roman]]the course of any such action.
[[599,1186,1492,1243][12][B,I,][Times New Roman]]Indemnification Regarding Transferees
[[450,1187,500,1244][12][,I,][Times New Roman]]2 [[475,1187,525,1244][12][,I,][Times New Roman]]. [[488,1187,538,1244][12][,I,][Times New Roman]]8 [[1462,1187,1512,1244][12][,I,][Times
New Roman]]. [[1541,1187,1924,1244][12][,I,][Times New Roman]]The GRANTOR
[[450,1244,2299,1301][12][,I,][Times New Roman]]hereby recognizes its obligations under Section 330 of the National Defense Authorization
[[447,1302,988,1359][12][,I,][Times New Roman]]Act of 1993 (Pub. L. 102 [[963,1302,1013,1359][12][,I,][Times New Roman]]- [[980,1302,2300,1359][12][,I,][Times New Roman]]484), as amended,
regarding indemnification of transferees of
[[450,1359,657,1416][12][,I,][Times New Roman]]closing D [[643,1359,1317,1416][12][,I,][Times New Roman]]epartment of Defense property.
[[598,1466,711,1523][12][B,I,][Times New Roman]]Non [[689,1466,739,1523][12][B,I,][Times New Roman]]- [[705,1466,1040,1523][12][B,I,][Times New Roman]]Discrimination
[[450,1467,525,1524][12][,I,][Times New Roman]]2. [[488,1467,538,1524][12][,I,][Times New Roman]]9 [[1018,1467,1353,1524][12][,I,][Times New Roman]]. GRANTEE [[1754,1467,2300,1524][12][,I,][Times
New Roman]]covenants for itself, its
[[450,1524,2299,1581][12][,I,][Times New Roman]]successors and assigns, that it will comply with all applicable provisions of the Civil Rights
[[447,1582,2299,1639][12][,I,][Times New Roman]]Act of 1964, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in
[[448,1639,1397,1696][12][,I,][Times New Roman]]Employment Act of 1975 in the use, occupancy [[1369,1639,2300,1696][12][,I,][Times New Roman]], sale or lease of the Property. The foregoing
[[450,1697,2299,1754][12][,I,][Times New Roman]]shall not be construed to prohibit the operation of federal or state approved programs
[[441,1754,2299,1811][12][,I,][Times New Roman]]focusing on the special needs of the homeless, veterans, victims of domestic violence and
[[450,1812,1092,1869][12][,I,][Times New Roman]]other classes of persons at risk [[1064,1812,2299,1869][12][,I,][Times New Roman]]; nor shall it be construed to prohibit employment practices
[[450,1869,1528,1926][12][,I,][Times New Roman]]not otherwise prohibited by law. The GRANTOR [[1864,1869,2300,1926][12][,I,][Times New Roman]]shall be deemed a
[[450,1927,2300,1984][12][,I,][Times New Roman]]beneficiary of this covenant without regard to whether it remains the owner of any land or
[[450,1984,946,2041][12][,I,][Times New Roman]]interest therein in the lo [[921,1984,2299,2041][12][,I,][Times New Roman]]cality of the Property hereby conveyed and shall have the sole
right
[[450,2042,1758,2099][12][,I,][Times New Roman]]to enforce this covenant in any court of competent jurisdiction.
[[598,2148,1415,2205][12][B,I,][Times New Roman]]NO HAZARD TO AIR NAVIGATION
[[450,2149,500,2206][12][,I,][Times New Roman]]3 [[475,2149,525,2206][12][,I,][Times New Roman]]. [[1401,2149,1701,2206][12][,I,][Times New Roman]]: GRANTEE [[2051,2149,2300,2206][12][,I,][Times
New Roman]]covenants
[[441,2207,1445,2264][12][,I,][Times New Roman]]for itself, its successors and assigns, that in conn [[1421,2207,2300,2264][12][,I,][Times New Roman]]ection with any construction or
alteration
[[450,2264,2299,2321][12][,I,][Times New Roman]]on the Property, it will obtain a determination of no hazard to air navigation from the
[[448,2322,2299,2379][12][,I,][Times New Roman]]Federal Aviation Administration in accordance with Title 14, Code of Federal Regulations,
[[448,2437,1357,2494][12][,I,][Times New Roman]]Federal Aviation Act of 1958, as amended.
3.4Government DeedsII-G and II-H. The italicized information below is copied
verbatim (except as discussed below) from Sections 3.2 through 3.6, and Sections 3.7, 3.8 and 3.9
of Government DeedsII-G and II-Hconveying a portion of the Grantor Property to the
GRANTOR. To the extent applicable to the Parcels conveyed hereunder, by acceptance of this
Quitclaim Deed, the GRANTEE, on behalf of itself and its successors and assigns acquiring fee
title to all or any portion of the Property, hereby acknowledges and assumes all responsibilities
placed upon the GRANTOR under the terms of the aforesaid Government DeedI-H. Within the
italicized informationcontained in this Section 3.4
the Grantor Property, including, without limitation, the Parcels. To avoid confusion, within the
[[450,677,500,734][12][,I,][Times New Roman]]3 [[475,677,538,734][12][,I,][Times New Roman]].2 [[597,677,895,734][12][,I,][Times New Roman]]A FOST has [[887,677,1966,734][12][,I,][Times
New Roman]]been completed and an Environmental Baseline S
[[450,734,2299,791][12][,I,][Times New Roman]]report is referenced in the FOST. The FOST and EBS reference environmental conditions
[[2014,849,2300,906][12][,I,][Times New Roman]]and that all
[[441,964,1047,1021][12][,I,][Times New Roman]]for inspection and copying.
[[450,1072,500,1129][12][,I,][Times New Roman]]3 [[475,1072,538,1129][12][,I,][Times New Roman]].3 [[598,1072,2299,1129][12][,I,][Times New Roman]]Except as otherwise provided herein,
or as otherwise provided by law, the
[[1566,1129,2300,1186][12][,I,][Times New Roman]]inspected, is aware of and accepts
[[1456,1302,2300,1359][12][,I,][Times New Roman]]uch condition and state of repair, or
[[450,1359,2299,1416][12][,I,][Times New Roman]]regarding the making of any alterations, improvements, repairs or additions. Except for
[[450,1417,2299,1474][12][,I,][Times New Roman]]the environmental remediation which may be required to be undertaken by GRANTOR
[[1307,1474,1357,1531][12][,I,][Times New Roman]]3 [[1332,1474,1593,1531][12][,I,][Times New Roman]].6 below, t
[[450,1589,2225,1646][12][,I,][Times New Roman]]latent or patent defects in the Property except to the extent required by applicable law.
[[450,1697,563,1754][12][B,I,][Times New Roman]]3.4. [[597,1697,1277,1754][12][B,I,][Times New Roman]]Asbestos Containing Material
[[600,1804,650,1861][12][,I,][Times New Roman]]3 [[625,1804,750,1861][12][,I,][Times New Roman]].4.1. [[1450,1804,2300,1861][12][,I,][Times New Roman]]is hereby informed an does hereby
[[450,1862,2049,1919][12][,I,][Times New Roman]]acknowledge that hazardous materials in the form of asbestos or asbestos [[2020,1862,2070,1919][12][,I,][Times New Roman]]- [[2036,1862,2300,1919][12][
,I,][Times New Roman]]containing
[[1196,1919,1377,1976][12][,I,][Times New Roman]]and are [[1361,1919,1605,1976][12][,I,][Times New Roman]]otherwise [[1560,1919,1617,1976][12][,I,][Times New Roman]]p [[1592,1919,2016,1976][12][,I,]
[Times New Roman]]resumed to exist in [[1978,1919,2300,1976][12][,I,][Times New Roman]]buildings and
[[450,1977,700,2034][12][,I,][Times New Roman]]structures [[665,1977,1194,2034][12][,I,][Times New Roman]]on the Property. The EB [[1175,1977,1446,2034][12][,I,][Times New Roman]]S
and FOST [[1438,1977,2156,2034][12][,I,][Times New Roman]]disclose the presence of known as [[2126,1977,2176,2034][12][,I,][Times New Roman]]b [[2151,1977,2301,2034][12][,I,][Times
New Roman]]estos
[[450,2034,1813,2091][12][,I,][Times New Roman]]or ACM hazards in such buildings and structures on the Property.
[[600,2142,650,2199][12][,I,][Times New Roman]]3 [[625,2142,725,2199][12][,I,][Times New Roman]].4.2 [[1369,2142,2260,2199][12][,I,][Times New Roman]]covenants, on behalf of itself,
its successor [[2230,2142,2280,2199][12][,I,][Times New Roman]]s
[[450,2199,1651,2256][12][,I,][Times New Roman]]and assigns, as a covenant running with the land, that it w [[1636,2199,2300,2256][12][,I,][Times New Roman]]ill prohibit occupancy and
use
[[450,2257,2299,2314][12][,I,][Times New Roman]]of buildings and structures, or portions thereof, containing known asbestos or ACM
[[450,2314,2299,2371][12][,I,][Times New Roman]]hazards prior to abatement of such hazards. In connection with its use and occupancy of
[[450,2372,1621,2429][12][,I,][Times New Roman]]the Property, including, but not limited to, demoliti [[1586,2372,2300,2429][12][,I,][Times New Roman]]on of buildings and structures
[[450,2429,2299,2486][12][,I,][Times New Roman]]containing asbestos or ACM, it will comply with all applicable federal, state and local laws
[[450,2487,1097,2544][12][,I,][Times New Roman]]relating to asbestos and ACM.
[[600,2594,725,2651][12][,I,][Times New Roman]]3.4.3 [[750,2594,875,2651][12][,I,][Times New Roman]]The [[1803,2594,1855,2651][12][,I,][Times New Roman]]N [[1839,2594,2048,2651][12][,I,][Times
New Roman]]otice of [[2019,2594,2071,2651][12][,I,][Times New Roman]]R [[2051,2594,2300,2651][12][,I,][Times New Roman]]elease, in
[[450,2652,977,2709][12][,I,][Times New Roman]]recordable form, to the [[944,2652,1152,2709][12][,I,][Times New Roman]]GRANTE [[1574,2652,2222,2709][12][,I,][Times New Roman]]at such
time as demolition of [[2189,2652,2278,2709][12][,I,][Times New Roman]]the
[[450,2709,2299,2766][12][,I,][Times New Roman]]buildings on the Property containing ACM has been completed and the appropriate
[[448,2767,1859,2824][12][,I,][Times New Roman]]government regulatory agency(s) have confirmed in writing to the
[[652,2824,1399,2881][12][,I,][Times New Roman]]that ACM has been removed fro [[1375,2824,2300,2881][12][,I,][Times New Roman]]m the buildings and any necessary soil
[[450,281,2239,338][12][,I,][Times New Roman]]remediation has been conducted in accordance with all applicable federal, state, and loc [[2212,281,2301,338][12][,I,][Times New Roman]]al
[[450,339,1054,396][12][,I,][Times New Roman]]laws and regulations. This [[1018,339,1070,396][12][,I,][Times New Roman]]N [[1054,339,1255,396][12][,I,][Times New Roman]]otice of [[1218,339,1270,39
6][12][,I,][Times New Roman]]R [[1251,339,2300,396][12][,I,][Times New Roman]]elease shall be deemed to remove all notices and
[[450,397,1270,454][12][,I,][Times New Roman]]restrictions relating to ACM from the [[1236,397,1586,454][12][,I,][Times New Roman]]Property. The [[2154,397,2300,454][12][,I,][Times
New Roman]]shall
[[450,454,2300,511][12][,I,][Times New Roman]]have no obligation under this subparagraph for the demolition of buildings or the removal
[[450,512,1960,569][12][,I,][Times New Roman]]of ACM or soil remediation related to such demolition or removal action.
[[450,619,563,676][12][B,I,][Times New Roman]]3.5. [[598,619,1179,676][12][B,I,][Times New Roman]]Lead Based Paint (LBP)
[[600,727,650,784][12][,I,][Times New Roman]]3 [[625,727,750,784][12][,I,][Times New Roman]].5.1. [[750,727,2300,784][12][,I,][Times New Roman]]The Property may include improvements
that are presumed to contain LBP
[[450,784,1839,841][12][,I,][Times New Roman]]because they are thought to have been constructed prior to 1978. [[1806,784,1913,841][12][,I,][Times New Roman]]. . . [[1906,784,2300,841][12][,I,][Time
s New Roman]]Lead from paint,
[[443,842,2299,899][12][,I,][Times New Roman]]paint chips, and dust can pose health hazards if not managed properly. Pursuant to 40
[[450,899,689,956][12][,I,][Times New Roman]]CFR Secti
[[450,957,2300,1014][12][,I,][Times New Roman]]residential real property on which a residential dwelling was built prior to 1978 is notified
[[450,1014,1696,1071][12][,I,][Times New Roman]]that such property may present exposure to lead from lead [[1672,1014,1722,1071][12][,I,][Times New Roman]]- [[1688,1014,2216,1071][12][,I,][Times
New Roman]]based paint that may pl [[2181,1014,2300,1071][12][,I,][Times New Roman]]ace
[[445,1072,2299,1129][12][,I,][Times New Roman]]young children at risk of developing lead poisoning. Lead poisoning in young children
[[450,1129,2299,1186][12][,I,][Times New Roman]]may produce permanent neurological damage, including learning disabilities, reduced
[[450,1187,2199,1244][12][,I,][Times New Roman]]intelligence quotient, behavioral problems, and impaired memory. Lead poisoning [[2167,1187,2300,1244][12][,I,][Times New Roman]]also
[[443,1244,2299,1301][12][,I,][Times New Roman]]poses a particular risk to pregnant women. The seller of any interest in residential real
[[443,1302,1860,1359][12][,I,][Times New Roman]]property is required to provide the buyer with any information on lead [[1836,1302,1886,1359][12][,I,][Times New Roman]]- [[1852,1302,2300,1359][12][,I
,][Times New Roman]]based paint hazards
[[1823,1359,2300,1416][12][,I,][Times New Roman]]otify the buyer of any
[[450,1417,705,1474][12][,I,][Times New Roman]]known lead [[680,1417,730,1474][12][,I,][Times New Roman]]- [[696,1417,2141,1474][12][,I,][Times New Roman]]based paint hazards. A risk
assessment or inspection for possible lead [[2117,1417,2167,1474][12][,I,][Times New Roman]]- [[2133,1417,2300,1474][12][,I,][Times New Roman]]based
[[600,1582,650,1639][12][,I,][Times New Roman]]3 [[625,1582,725,1639][12][,I,][Times New Roman]].5.2 [[750,1582,875,1639][12][,I,][Times New Roman]]The [[1521,1582,2300,1639][12][,I,][Times
New Roman]]hereby acknowledges the required
[[450,1639,958,1696][12][,I,][Times New Roman]]disclosure of the prese [[930,1639,2299,1696][12][,I,][Times New Roman]]nce of any known LBP and/or LBP hazards in target housing
[[450,1697,1843,1754][12][,I,][Times New Roman]]constructed prior to 1978 in accordance with the Residential Lead [[1819,1697,1869,1754][12][,I,][Times New Roman]]- [[1834,1697,2300,1754][12][,I,][Ti
mes New Roman]]Based Paint Hazard
[[448,1754,1446,1811][12][,I,][Times New Roman]]Reduction Act of 1992, 42 U.S.C. Section 485 [[1422,1754,1472,1811][12][,I,][Times New Roman]]2 [[1447,1754,1848,1811][12][,I,][Times
New Roman]]d (Title X). The
[[643,1812,1172,1869][12][,I,][Times New Roman]]acknowledges the receip [[1147,1812,2300,1869][12][,I,][Times New Roman]]t of available records and reports pertaining to LBP
[[450,1869,2300,1926][12][,I,][Times New Roman]]and/or LBP hazards and receipt of the Environmental Protection Agency (EPA) approved
[[1996,1927,2046,1984][12][,I,][Times New Roman]]- [[2010,1927,2062,1984][12][,I,][Times New Roman]]K [[2046,1927,2096,1984][12][,I,][Times New Roman]]- [[2062,1927,2137,1984][12][,I,][Times
New Roman]]94 [[2112,1927,2162,1984][12][,I,][Times New Roman]]¬ [[2146,1927,2313,1984][12][,I,][Times New Roman]]001).
[[448,1984,858,2041][12][,I,][Times New Roman]]Furthermore, the [[1499,1984,2300,2041][12][,I,][Times New Roman]]acknowledges that it has read and
[[450,2042,1101,2099][12][,I,][Times New Roman]]understood the EPA pamphlet.
[[600,2149,650,2206][12][,I,][Times New Roman]]3 [[625,2149,725,2206][12][,I,][Times New Roman]].5.3 [[763,2149,888,2206][12][,I,][Times New Roman]]The [[1521,2149,2300,2206][12][,I,][Times
New Roman]]covenants and agrees that, in any
[[450,2207,2299,2264][12][,I,][Times New Roman]]improvements on the Property defined as target housing by Title X and constructed prior
[[450,2264,1129,2321][12][,I,][Times New Roman]]to 1978, LBP hazards will be di [[1093,2264,2299,2321][12][,I,][Times New Roman]]sclosed to potential occupants in accordance with Title
X
[[450,2322,2300,2379][12][,I,][Times New Roman]]before use of such improvements as a residential dwelling (as defined in Title X). Further,
[[450,2379,539,2436][12][,I,][Times New Roman]]the [[1123,2379,2300,2436][12][,I,][Times New Roman]]covenants and agrees that LBP hazards in target housing
[[449,2437,860,2494][12][,I,][Times New Roman]]will be abated in [[832,2437,2300,2494][12][,I,][Times New Roman]]accordance with Title X before use and occupancy as a residential
[[441,2552,2299,2609][12][,I,][Times New Roman]]for the elderly or persons with disabilities (unless any child who is less than six [6] years
[[450,2609,636,2666][12][,I,][Times New Roman]]of age r [[606,2609,1837,2666][12][,I,][Times New Roman]]esides, or is expected to reside, in such housing) or any zero [[1812,2609,1862,2666][12][,I,][
Times New Roman]]- [[1829,2609,2242,2666][12][,I,][Times New Roman]]bedroom dwelling.
[[600,2717,650,2774][12][,I,][Times New Roman]]3 [[625,2717,725,2774][12][,I,][Times New Roman]].5.4 [[750,2717,875,2774][12][,I,][Times New Roman]]The [[1450,2717,2300,2774][12][,I,][Times
New Roman]]covenants and agrees that in its use and
[[450,2774,2299,2831][12][,I,][Times New Roman]]occupancy of the Property, it will comply with Title X and all applicable federal, state, and
[[450,2832,514,2889][12][,I,][Times New Roman]]lo [[489,2832,1182,2889][12][,I,][Times New Roman]]cal laws relating to LBP. The [[1792,2832,2300,2889][12][,I,][Times New Roman]]acknowledges
that the
[[1041,281,2300,338][12][,I,][Times New Roman]]assumes no liability for damages for personal injury, illness,
[[450,339,1004,396][12][,I,][Times New Roman]]disability, or death to the [[1566,339,2300,396][12][,I,][Times New Roman]], or to any other person, including
[[450,397,2299,454][12][,I,][Times New Roman]]members of the general public, arising from or incident to the purchase, transportation,
[[450,454,2299,511][12][,I,][Times New Roman]]removal, handling, use, disposition, or other activity causing or leading to contact of any
[[450,512,2045,569][12][,I,][Times New Roman]]kind whatsoever with LBP on the Property, arising after the conveyance of t [[2010,512,2300,569][12][,I,][Times New Roman]]he Property
[[441,569,672,626][12][,I,][Times New Roman]]from the [[1239,569,1406,626][12][,I,][Times New Roman]]to the [[1984,569,2300,626][12][,I,][Times New Roman]], whether the
[[1053,627,2300,684][12][,I,][Times New Roman]]has properly warned, or failed to properly warn, the persons
[[450,684,644,741][12][,I,][Times New Roman]]injured.
[[600,792,650,849][12][,I,][Times New Roman]]3 [[625,792,725,849][12][,I,][Times New Roman]].5.5 [[750,792,875,849][12][,I,][Times New Roman]]The [[1462,792,2071,849][12][,I,][Times
New Roman]]shall provide a Notice of R [[2051,792,2226,849][12][,I,][Times New Roman]]elease, [[2211,792,2275,849][12][,I,][Times New Roman]]in
[[450,849,977,906][12][,I,][Times New Roman]]recordable form, to the [[1574,849,2300,906][12][,I,][Times New Roman]]at such time as demolition of the
[[450,907,2299,964][12][,I,][Times New Roman]]buildings on the Property containing LBP has been completed and the appropriate
[[448,964,1859,1021][12][,I,][Times New Roman]]government regulatory agency(s) have confirmed in writing to the
[[450,1022,572,1079][12][,I,][Times New Roman]]Tust [[633,1022,2300,1079][12][,I,][Times New Roman]]that LBP has been removed from the buildings and any necessary soil remediation
[[450,1079,2299,1136][12][,I,][Times New Roman]]has been conducted in accordance with all applicable federal, state, and local laws and
[[450,1137,2133,1194][12][,I,][Times New Roman]]regulations. This Notice of Release shall be deemed to remove all notices and rest [[2098,1137,2301,1194][12][,I,][Times New Roman]]rictions
[[450,1194,1372,1251][12][,I,][Times New Roman]]relating to LBP from the Property. The [[1961,1194,2300,1251][12][,I,][Times New Roman]]shall have no
[[450,1252,2299,1309][12][,I,][Times New Roman]]obligation under this subparagraph for the demolition of buildings or the removal of LBP
[[450,1309,1790,1366][12][,I,][Times New Roman]]or soil remediation related to such demolition or removal action.
[[450,1417,500,1474][12][B,I,][Times New Roman]]3 [[474,1417,538,1474][12][B,I,][Times New Roman]].6 [[600,1417,848,1474][12][B,I,][Times New Roman]]CERCLA [[809,1417,936,1474][12][B,I,][Times
New Roman]]Noti [[899,1417,1357,1474][12][B,I,][Times New Roman]]ces And Covenants:
[[748,1523,1711,1580][12][B,I,][Times New Roman]]Notices: Hazardous Substance Notification
[[600,1524,650,1581][12][,I,][Times New Roman]]3 [[625,1524,750,1581][12][,I,][Times New Roman]].6.1. [[1690,1524,2300,1581][12][,I,][Times New Roman]]. Pursuant to 42 U.S.C.
[[450,1582,1762,1639][12][,I,][Times New Roman]]§9620(h)(3)(A), and the provisions of 40 C.F.R. part 373, the [[1729,1582,1923,1639][12][,I,][Times New Roman]]Grantor
[[450,1639,2058,1696][12][,I,][Times New Roman]]has made a complete search of its files and records concerning the Property [[2024,1639,2300,1696][12][,I,][Times New Roman]]and hereby
[[448,1697,1043,1754][12][,I,][Times New Roman]]gives notice that based on th [[1018,1697,1093,1754][12][,I,][Times New Roman]]at [[1069,1697,2300,1754][12][,I,][Times New Roman]]research
no hazardous substances were stored, released or
[[450,1754,862,1811][12][,I,][Times New Roman]]disposed of on the [[823,1754,875,1811][12][,I,][Times New Roman]]P [[856,1754,1066,1811][12][,I,][Times New Roman]]roperty.
[[750,1861,2270,1918][12][B,I,][Times New Roman]]Grant of Covenant [CERCLA 42 U.S.C. Section 9620 (h)(3)(A)(ii)(I)]
[[600,1862,650,1919][12][,I,][Times New Roman]]3 [[625,1862,750,1919][12][,I,][Times New Roman]].6.2. [[2237,1862,2287,1919][12][,I,][Times New Roman]].
[[1678,1919,2300,1976][12][,I,][Times New Roman]]s that all remedial action
[[450,1977,2299,2034][12][,I,][Times New Roman]]necessary to protect human health and the environment with respect to any hazardous
[[450,2034,2098,2091][12][,I,][Times New Roman]]substance remaining on the Property has been taken before the date of transfer.
[[747,2141,2097,2198][12][B,I,][Times New Roman]]Additional Remediation Obligation [CERCLA 42 U.S.C. Sect [[2062,2141,2300,2198][12][B,I,][Times New Roman]]ion 9620
[[600,2142,650,2199][12][,I,][Times New Roman]]3 [[625,2142,750,2199][12][,I,][Times New Roman]].6.3.
[[450,2198,819,2255][12][B,I,][Times New Roman]](h)(3)(A)(ii)(II)]
[[450,2314,2299,2371][12][,I,][Times New Roman]]necessary after the date of transfer for any hazardous substance existing on the Property
[[443,2372,500,2429][12][,I,][Times New Roman]]p [[475,2372,2299,2429][12][,I,][Times New Roman]]rior to the date of this Deed. This covenant shall not apply to the extent that the
[[450,2487,1604,2544][12][,I,][Times New Roman]]of any hazardous substance, pollutant, or contaminant.
[[746,2593,1237,2650][12][B,I,][Times New Roman]]Access [CERCLA 42 [[1205,2593,1956,2650][12][B,I,][Times New Roman]]U.S.C. Section 9620 (h)(3)(A)(iii)]
[[600,2594,650,2651][12][,I,][Times New Roman]]3 [[625,2594,780,2651][12][,I,][Times New Roman]].6.4. [[1923,2594,2300,2651][12][,I,][Times New Roman]]. In connection
[[1487,2652,1537,2709][12][,I,][Times New Roman]]3 [[1512,2652,2299,2709][12][,I,][Times New Roman]].6.3 above and in connection with
[[1428,2767,2299,2824][12][,I,][Times New Roman]]of itself, its successors and assigns, as a
[[450,281,2299,338][12][,I,][Times New Roman]]employees, contractors and subcontractors, shall have the right, upon reasonable notice
[[1315,339,2300,396][12][,I,][Times New Roman]]r upon the Property in any case in which a
[[450,397,2299,454][12][,I,][Times New Roman]]response or corrective action is found to be necessary at such property after the date of
[[450,454,2299,511][12][,I,][Times New Roman]]this deed, or such access is necessary to carry out a response action or corrective action
[[450,512,1158,569][12][,I,][Times New Roman]]on adjoining property. Neither
[[450,569,2299,626][12][,I,][Times New Roman]]assigns, shall have any claim on account of such entries against the United States or any
[[450,627,2299,684][12][,I,][Times New Roman]]of its officers, agents, employees, contractors or subcontractors. The right to enter shall
[[450,684,898,741][12][,I,][Times New Roman]]include the right to c [[871,684,2300,741][12][,I,][Times New Roman]]onduct tests, investigations and surveys, including, where necessary,
[[450,742,732,799][12][,I,][Times New Roman]]drilling, test [[696,742,746,799][12][,I,][Times New Roman]]- [[706,742,2300,799][12][,I,][Times New Roman]]pitting, boring and other similar
activities. Such right shall also include the
[[450,799,2275,856][12][,I,][Times New Roman]]right to construct, operate, maintain or undertake any other response or corrective action
[[450,857,2267,914][12][,I,][Times New Roman]]as required or necessary, including, but not limited to monitoring wells, pumping wells [[2238,857,2288,914][12][,I,][Times New Roman]],
[[450,914,2299,971][12][,I,][Times New Roman]]treatment facilities, and the installation of associated utilities. In exercising these rights
[[450,972,1890,1029][12][,I,][Times New Roman]]of access, except in case of imminent and substantial endangerment to [[1851,972,2300,1029][12][,I,][Times New Roman]]human health or
the
[[450,1144,1122,1201][12][,I,][Times New Roman]]actions on the Property, and (2) [[1102,1144,1834,1201][12][,I,][Times New Roman]]make reasonable efforts to minimiz [[1803,1144,2300,1201][12][,I,][Ti
mes New Roman]]e interference with the
[[450,1202,525,1259][12][,I,][Times New Roman]]on [[500,1202,550,1259][12][,I,][Times New Roman]]-
[[450,1317,2036,1374][12][,I,][Times New Roman]]between the necessary environmental investigation and remediation activi [[2001,1317,2300,1374][12][,I,][Times New Roman]]ties and the
[[450,1432,2299,1489][12][,I,][Times New Roman]]or other response, corrective or remedial action undertaken by GRANTOR
[[450,1547,675,1604][12][,I,][Times New Roman]]represent
[[450,1719,774,1776][12][,I,][Times New Roman]]the land, to co [[750,1719,2300,1776][12][,I,][Times New Roman]]mply with the provisions of any health or safety plan in effect during
the
[[450,1777,1011,1834][12][,I,][Times New Roman]]course of any such action.
[[599,1883,1492,1940][12][B,I,][Times New Roman]]Indemnification Regarding Transferees
[[450,1884,538,1941][12][,I,][Times New Roman]]3.7 [[1462,1884,1512,1941][12][,I,][Times New Roman]].
[[450,1942,2163,1999][12][,I,][Times New Roman]]hereby recognizes its obligations under Section 330 of the National Defense Authori [[2127,1942,2300,1999][12][,I,][Times New Roman]]zation
[[447,1999,988,2056][12][,I,][Times New Roman]]Act of 1993 (Pub. L. 102 [[963,1999,1013,2056][12][,I,][Times New Roman]]- [[980,1999,2300,2056][12][,I,][Times New Roman]]484), as amended,
regarding indemnification of transferees of
[[450,2057,1317,2114][12][,I,][Times New Roman]]closing Department of Defense property.
[[598,2163,711,2220][12][B,I,][Times New Roman]]Non [[689,2163,739,2220][12][B,I,][Times New Roman]]- [[705,2163,1040,2220][12][B,I,][Times New Roman]]Discrimination
[[450,2164,538,2221][12][,I,][Times New Roman]]3.8
[[450,2222,1312,2279][12][,I,][Times New Roman]]successors and assigns, that it will comply [[1294,2222,2300,2279][12][,I,][Times New Roman]]with all applicable provisions of the Civil
Rights
[[447,2279,2299,2336][12][,I,][Times New Roman]]Act of 1964, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in
[[448,2337,2300,2394][12][,I,][Times New Roman]]Employment Act of 1975 in the use, occupancy, sale or lease of the Property. The foregoing
[[450,2394,959,2451][12][,I,][Times New Roman]]shall not be construed [[928,2394,2300,2451][12][,I,][Times New Roman]]to prohibit the operation of federal or state approved programs
[[441,2452,2299,2509][12][,I,][Times New Roman]]focusing on the special needs of the homeless, veterans, victims of domestic violence and
[[450,2509,2299,2566][12][,I,][Times New Roman]]other classes of persons at risk; nor shall it be construed to prohibit employment practices
[[450,2567,672,2624][12][,I,][Times New Roman]]not other
[[450,2624,2300,2681][12][,I,][Times New Roman]]beneficiary of this covenant without regard to whether it remains the owner of any land or
[[450,2682,2299,2739][12][,I,][Times New Roman]]interest therein in the locality of the Property hereby conveyed and shall have the sole right
[[450,2739,500,2796][12][,I,][Times New Roman]]t [[464,2739,1758,2796][12][,I,][Times New Roman]]o enforce this covenant in any court of competent jurisdiction.
[[598,280,1415,337][12][B,I,][Times New Roman]]NO HAZARD TO AIR NAVIGATION
[[450,281,500,338][12][,I,][Times New Roman]]3 [[475,281,538,338][12][,I,][Times New Roman]].9
[[441,339,2299,396][12][,I,][Times New Roman]]for itself, its successors and assigns, that in connection with any construction or alteration
[[450,397,993,454][12][,I,][Times New Roman]]on the Property, it will o [[969,397,2300,454][12][,I,][Times New Roman]]btain a determination of no hazard to air navigation from the
[[448,454,2299,511][12][,I,][Times New Roman]]Federal Aviation Administration in accordance with Title 14, Code of Federal Regulations,
[[448,569,815,626][12][,I,][Times New Roman]]Federal Aviation [[800,569,1358,626][12][,I,][Times New Roman]]Act of 1958, as amended.
3.5The responsibilities and obligations placed upon the GRANTOR by the
Government shall run with the land and be binding on the GRANTEE and all subsequent owners
of theParcelsor any portion thereof, unless and until such responsibilities and obligations are
released pursuant to the provisions set forth in the Government Deeds.
3.6As further set forth in, and subject to the terms and conditions of the DDA,
GRANTEE acknowledges that it has examined theParcelsand is buying theParcelsfrom the
condition and with all faults, which provisions shall survive the close of escrow related to this
transaction and do not merge with this Quitclaim Deed.
4.DDA Provisions.
4.1Definitions. Pursuant to the DDA, the GRANTORhas imposed certain covenants,
conditions and restrictions on the Parcels,including the releases contained in Section4.5.2 of the
DDA, which are set forth verbatim below in italics and each of which is hereby declared to be a
covenant running with the land in perpetuity. Within the italicized language which follows, section
references shall be to sections of the DDA,and where initially capitalized terms are used within
the italicized language which followsand otherwise within this Quitclaim Deed, such terms (unless
expressly noted otherwise)shall have the meanings set forth in attached hereto and
incorporated herein by this reference. Except for the provisions set forth in
Sections4.2,4.3and4.4and , the provisions of the DDArestated in this Quitclaim
Deed shall not be binding upon or burden any End User.
4.2Releases.Section 4.5.2(f) of the Original DDA provides as follows:
[[749,2133,936,2190][12][B,I,][Times New Roman]]Release
[[628,2134,708,2191][12][,I,][Times New Roman]](f) [[908,2134,987,2191][12][,I,][Times New Roman]]. [[953,2134,2300,2191][12][,I,][Times New Roman]]Developer, on behalf of itself,
each Successor Owner and each
[[600,2192,2299,2249][12][,I,][Times New Roman]]and every Person claiming by, through or under Developer or any Successor
[[600,2249,1678,2306][12][,I,][Times New Roman]]Owner and including, without limitation, each [[1659,2249,1767,2306][12][,I,][Times New Roman]]End [[1775,2249,1903,2306][12][,I,][Times
New Roman]]User [[1905,2249,2300,2306][12][,I,][Times New Roman]](each, including
[[1655,2307,2300,2364][12][,I,][Times New Roman]]y waives, as of the Effective
[[598,2364,2299,2421][12][,I,][Times New Roman]]Date, and agrees to waive, as of the Close of Escrow, the right of each Developer
[[598,2422,2299,2479][12][,I,][Times New Roman]]Releasing Party to recover from, and fully and irrevocably releases, the City
[[598,2479,1998,2536][12][,I,][Times New Roman]]Released Parties from any and all Claims that any Developer Releas [[1968,2479,2300,2536][12][,I,][Times New Roman]]ing Party may
[[600,2537,2299,2594][12][,I,][Times New Roman]]now have or hereafter suffer or acquire arising from or related to: (i) any Due
[[598,2594,2299,2651][12][,I,][Times New Roman]]Diligence Information, (ii) any condition of the Property or any current or future
[[600,2652,2300,2709][12][,I,][Times New Roman]]improvement thereon, known or unknown by any Developer Releasing Party or any
[[600,2709,650,2766][12][,I,][Times New Roman]]C [[634,2709,2300,2766][12][,I,][Times New Roman]]ity Released Party, including as to the extent or effect of any grading of the
[[598,2767,2299,2824][12][,I,][Times New Roman]]Development Parcels; (iii) any construction defects, errors, omissions or other
[[600,2824,2299,2881][12][,I,][Times New Roman]]conditions, latent or otherwise; (iv) economic and legal conditions on or affecting
[[600,281,904,338][12][,I,][Times New Roman]]the Property [[869,281,2300,338][12][,I,][Times New Roman]]or any improvements thereon; (v) Environmental Matters, including
[[600,339,2299,396][12][,I,][Times New Roman]]the existence, Release, threatened Release, presence, storage, treatment,
[[600,397,2299,454][12][,I,][Times New Roman]]transportation or disposal of any Hazardous Materials at any time on, in, under,
[[600,454,1336,511][12][,I,][Times New Roman]]or from, the Property or any curren [[1311,454,2300,511][12][,I,][Times New Roman]]t or future improvement thereon or any portion
[[600,512,2299,569][12][,I,][Times New Roman]]thereof; (vi) Claims of or acts or omissions to act of any Governmental Authority
[[600,569,2299,626][12][,I,][Times New Roman]]or any other third party arising from or related to any actual, threatened, or
[[600,627,1664,684][12][,I,][Times New Roman]]suspected Release of a Hazardous Material on, in [[1640,627,2300,684][12][,I,][Times New Roman]], under, or from or about the
[[598,684,2300,741][12][,I,][Times New Roman]]Property or any current or future improvement thereon, including any Investigation
[[600,742,2299,799][12][,I,][Times New Roman]]or Remediation at or about the Property or any current or future improvement
[[600,799,2074,856][12][,I,][Times New Roman]]thereon; and/or (vii) arising from the Tustin Legacy Backbone Infr [[2044,799,2300,856][12][,I,][Times New Roman]]astructure
[[598,857,2299,914][12][,I,][Times New Roman]]Program, any community facilities district, service district or assessment district
[[600,914,2299,971][12][,I,][Times New Roman]]the cost or extent thereof, or the amount of the Project Fair Share Contribution or
[[600,972,2102,1029][12][,I,][Times New Roman]]any community facilities district, service district or assessment district as [[2072,972,2300,1029][12][,I,][Times New Roman]]sessment
[[600,1029,2300,1086][12][,I,][Times New Roman]]against the Development Parcels described in this Agreement or the DA; provided
[[600,1087,2299,1144][12][,I,][Times New Roman]]that the foregoing release by the Developer Releasing Parties shall not extend to
[[600,1144,2300,1201][12][,I,][Times New Roman]]the extent of (A) any breach by the City of any of the representations or warranties
[[600,1202,2299,1259][12][,I,][Times New Roman]]of the City set forth in Sections 3.3 or 17.12 of this Agreement, (B) any breach by
[[600,1259,2299,1316][12][,I,][Times New Roman]]the City of any of the covenants or obligations set forth in this Agreement or any
[[600,1317,2299,1374][12][,I,][Times New Roman]]Other Agreement, (C) any Claim that is the result of the gross negligence, willful
[[600,1374,767,1431][12][,I,][Times New Roman]]miscon [[742,1374,2299,1431][12][,I,][Times New Roman]]duct or fraud of the City Released Parties, (D) any actions of the City
[[598,1432,2299,1489][12][,I,][Times New Roman]]Released Parties which occur following the Close of Escrow with respect to the
[[598,1489,2299,1546][12][,I,][Times New Roman]]Property, or (E) any other Claims against City relating to or arising out of tort
[[600,1547,1117,1604][12][,I,][Times New Roman]]Claims brought by third [[1101,1547,2299,1604][12][,I,][Times New Roman]]parties against Developer, to the extent such claims are
[[600,1604,2299,1661][12][,I,][Times New Roman]]based upon the Active Negligence of the City Released Parties and Accruing prior
[[600,1662,2299,1719][12][,I,][Times New Roman]]to the Close of Escrow; provided that the exceptions in clauses (C) and (E) above
[[600,1719,1299,1776][12][,I,][Times New Roman]]shall not apply with respect to any [[1282,1719,2300,1776][12][,I,][Times New Roman]]matter for which the City is indemnified pursuant
[[600,1777,2299,1834][12][,I,][Times New Roman]]to Section 5.5 or Section 10.2. This release includes Claims of which Developer is
[[593,1834,2300,1891][12][,I,][Times New Roman]]presently unaware or which Developer does not presently suspect to exist which, if
[[600,1892,1496,1949][12][,I,][Times New Roman]]known by Developer, would materially a
[[598,1949,2299,2006][12][,I,][Times New Roman]]Released Parties. Developer specifically waives the provision of California Civil
[[600,2007,1571,2064][12][,I,][Times New Roman]]Code Section 1542, which provides as follows:
[[775,2122,2149,2179][12][,I,][Times New Roman]]A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
[[750,2179,2040,2236][12][,I,][Times New Roman]]WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT [[2036,2179,2150,2236][12][,I,][Times New Roman]]TO
[[748,2237,2149,2294][12][,I,][Times New Roman]]EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
[[750,2294,2149,2351][12][,I,][Times New Roman]]THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
[[748,2352,2149,2409][12][,I,][Times New Roman]]HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
[[598,2517,2300,2574][12][,I,][Times New Roman]]In this connection and to the extent permitted by law, Developer on behalf of itself,
[[600,2574,700,2631][12][,I,][Times New Roman]]and [[692,2574,2300,2631][12][,I,][Times New Roman]]the other Developer Releasing Parties hereby agrees that (x) it realizes and
[[600,2632,2299,2689][12][,I,][Times New Roman]]acknowledges that factual matters now unknown to it may have given or may
[[600,2689,2299,2746][12][,I,][Times New Roman]]hereafter give rise to Claims or controversies which are presently unknown,
[[600,2747,1219,2804][12][,I,][Times New Roman]]unanticipated and unsuspecte [[1191,2747,2300,2804][12][,I,][Times New Roman]]d; (y) the waivers and releases in this Section 4.5.2(f)
[[600,2804,2300,2861][12][,I,][Times New Roman]]have been negotiated and agreed upon in light of that realization and (z) Developer,
[[600,2862,2299,2919][12][,I,][Times New Roman]]on behalf of itself and the other Developer Releasing Parties, nevertheless hereby
[[600,281,1249,338][12][,I,][Times New Roman]]intends to release, discharge a [[1224,281,2299,338][12][,I,][Times New Roman]]nd acquit the City Released Parties from any such
[[600,339,1920,396][12][,I,][Times New Roman]]unknown Claims and controversies to the extent set forth above.
[[748,454,2150,511][12][,I,][Times New Roman]]BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES THAT
[[750,512,2149,569][12][,I,][Times New Roman]](A) IT HAS READ AND FULLY UNDERSTANDS THE
[[748,569,2022,626][12][,I,][Times New Roman]]PROVISIONS OF THIS SECTION, (B) IT HAS HAD THE CHA [[2001,569,2150,626][12][,I,][Times New Roman]]NCE
[[750,627,2149,684][12][,I,][Times New Roman]]TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS MEANING
[[747,684,2149,741][12][,I,][Times New Roman]]AND SIGNIFICANCE, AND (C) IT HAS ACCEPTED AND
[[747,742,2011,799][12][,I,][Times New Roman]]AGREED TO THE TERMS SET FORTH IN THIS SECTION.
[[749,849,1325,906][12][,I,][Times New Roman]]______________________ [[1499,849,2100,906][12][,I,][Times New Roman]]_______________________
[[448,1032,2300,1089][12][,I,][Times New Roman]]From and after the acquisition of the Development Parcels by Developer, this release shall
[[450,1089,2300,1146][12][,I,][Times New Roman]]run with the land for the benefit of the City and its Governmental Successors and burdening
[[450,1147,2130,1204][12][,I,][Times New Roman]]the Development Parcels and Developer and the Successor Owners owning all [[2114,1147,2300,1204][12][,I,][Times New Roman]]or any
[[443,1204,2299,1261][12][,I,][Times New Roman]]portion of the Development Parcels and all Persons claiming by, through or under
[[448,1262,2299,1319][12][,I,][Times New Roman]]Developer or any Successor Owner of the Development Parcels or such portion thereof,
[[450,1319,2274,1376][12][,I,][Times New Roman]]including each End User, and to further evidence its effectiveness with respect to
[[448,1377,2299,1434][12][,I,][Times New Roman]]Developer and the Successor Owners of the Development Parcels, shall be included in its
[[450,1434,1127,1491][12][,I,][Times New Roman]]entirety in the Quitclaim Deed. [[1089,1434,1933,1491][12][,I,][Times New Roman]]The provisions of this Section 4.5.2 shall [[1909,1434,2301,1491][12
][,I,][Times New Roman]]survive the Close
[[450,1492,1773,1549][12][,I,][Times New Roman]]of Escrow and the termination of this Agreement and shall [[1748,1492,2129,1549][12][,I,][Times New Roman]]not be merged w [[2113,1492,2300,1549][12][
,I,][Times New Roman]]ith the
[[450,1549,818,1606][12][,I,][Times New Roman]]Quitclaim Deed.
4.3Disclaimer of Responsibility by City and Exculpation. Section 8.14of the DDA
provides in applicable part as follows:
[[898,1829,2299,1886][12][,I,][Times New Roman]]Disclaimer of Responsibility. The City neither undertakes nor
[[450,1887,1236,1944][12][,I,][Times New Roman]]assumes nor will have any responsibi [[1201,1887,2300,1944][12][,I,][Times New Roman]]lity or duty to Developer, any Successor Owner,
any
[[448,1944,2299,2001][12][,I,][Times New Roman]]End User or to any other third party to review, inspect, supervise, pass judgment upon or
[[450,2002,2300,2059][12][,I,][Times New Roman]]inform Developer, any Successor Owner, any End User or any third party of any matter in
[[450,2059,1014,2116][12][,I,][Times New Roman]]connection with the develo [[982,2059,2299,2116][12][,I,][Times New Roman]]pment or construction of Improvements or the approval of any
[[450,2117,2299,2174][12][,I,][Times New Roman]]maps, including Condominium Plan, whether regarding the quality, adequacy or
[[450,2174,2299,2231][12][,I,][Times New Roman]]suitability of the plans, any labor, service, equipment or material furnished for
[[450,2232,1243,2289][12][,I,][Times New Roman]]development of the Project, any Pers [[1213,2232,2300,2289][12][,I,][Times New Roman]]on furnishing same, or otherwise. Developer, any
[[450,2289,2300,2346][12][,I,][Times New Roman]]Successor Owner, End User and all third parties shall rely upon its or their own judgment
[[450,2347,2299,2404][12][,I,][Times New Roman]]regarding such matters, and any review, inspection, supervision, exercise of judgment or
[[450,2404,1043,2461][12][,I,][Times New Roman]]information supplied to Dev [[1016,2404,2300,2461][12][,I,][Times New Roman]]eloper, any Successor Owner, End User or to any third party
[[450,2462,2299,2519][12][,I,][Times New Roman]]by the City in connection with such matter is for the public purpose of developing the
[[448,2519,2300,2576][12][,I,][Times New Roman]]Project, and neither Developer nor any Successor Owner, End User nor any third party is
[[450,2577,865,2634][12][,I,][Times New Roman]]entitled to rely ther [[835,2577,957,2634][12][,I,][Times New Roman]]eon.
[[600,2692,750,2749][12][,I,][Times New Roman]]8.14.2 [[748,2692,2300,2749][12][,I,][Times New Roman]]Exculpation. The City shall not be liable in damages to Developer or to any
[[450,2749,1894,2806][12][,I,][Times New Roman]]owner, lessee, any licensee or other Person, on account of (a) [[1873,2749,2300,2806][12][,I,][Times New Roman]]any approvals or
[[450,2807,2239,2864][12][,I,][Times New Roman]]disapprovals by the City, including by the City Manager or designee, whether made in t [[2204,2807,2301,2864][12][,I,][Times New Roman]]he
[[450,2864,2299,2921][12][,I,][Times New Roman]]Governmental Capacity or Proprietary Capacity of the City of any design documents or
[[450,281,2299,338][12][,I,][Times New Roman]]maps, in connection with the Project, the Horizontal Improvements, the Vertical
[[448,339,2299,396][12][,I,][Times New Roman]]Improvements, the Phase Improvements or any Condominium Plan, including the
[[447,397,737,454][12][,I,][Times New Roman]]Approved Pl [[701,397,2300,454][12][,I,][Times New Roman]]ans, any Basic Concept Plan and grading plans with respect to the foregoing,
[[449,454,2299,511][12][,I,][Times New Roman]]whether or not defective or whether or not in compliance with applicable laws or
[[450,512,797,569][12][,I,][Times New Roman]]ordinances; (b) [[776,512,2299,569][12][,I,][Times New Roman]]any construction, performance or nonperformance by Developer or any
[[450,569,769,626][12][,I,][Times New Roman]]owner, lessee, [[744,569,2299,626][12][,I,][Times New Roman]]licensee or other Person of any work on the Property or the Improvements,
[[449,627,2299,684][12][,I,][Times New Roman]]whether or not pursuant to Approved Plans or whether or not in compliance with
[[450,684,1164,741][12][,I,][Times New Roman]]applicable laws or ordinances; (c) [[1143,684,2300,741][12][,I,][Times New Roman]]any mistake in judgment, negligence, action or omission
[[450,742,692,799][12][,I,][Times New Roman]]in exercisi [[656,742,1950,799][12][,I,][Times New Roman]]ng its rights, powers and responsibilities hereunder; and/or (d) [[1929,742,2300,799][12][,I,][T
imes New Roman]]the enforcement
[[450,799,2299,856][12][,I,][Times New Roman]]or failure to enforce any of the provisions of this Agreement. Every Person who makes
[[450,857,2299,914][12][,I,][Times New Roman]]design submittals for approval agrees by reason of such submittal, and Developer and
[[450,914,544,971][12][,I,][Times New Roman]]eve [[516,914,2300,971][12][,I,][Times New Roman]]ry Successor Owner of the Property or the Improvements or any portion thereof agrees
[[450,972,2299,1029][12][,I,][Times New Roman]]by acquiring title thereto or an interest therein, not to bring any suit or action against the
[[450,1029,2076,1086][12][,I,][Times New Roman]]City seeking to recover any such damages and expressly waives any such claim [[2077,1029,2300,1086][12][,I,][Times New Roman]]or cause
[[450,1087,2299,1144][12][,I,][Times New Roman]]of action for such damages which it would otherwise be entitled to assert. The review of
[[450,1144,2299,1201][12][,I,][Times New Roman]]any design submittals shall not constitute the assumption of any responsibility by, or
[[450,1202,1896,1259][12][,I,][Times New Roman]]impose any liability upon, the City as to the accuracy, efficacy, suf [[1852,1202,2300,1259][12][,I,][Times New Roman]]ficiency or legality
[[450,1259,2299,1316][12][,I,][Times New Roman]]thereof nor decrease or diminish any liability, duties, responsibilities, or obligations of
[[448,1317,1414,1374][12][,I,][Times New Roman]]Developer under this Agreement or otherwise. [[1390,1317,1503,1374][12][,I,][Times New Roman]]. . .
[[600,1432,750,1489][12][,I,][Times New Roman]]8.14.4 [[748,1432,2299,1489][12][,I,][Times New Roman]]No Supervision or Control. The City (whether acting in its Governmental
[[450,1489,658,1546][12][,I,][Times New Roman]]Capacity [[653,1489,2299,1546][12][,I,][Times New Roman]]or its Proprietary Capacity) does not have any right, and hereby expressly
[[450,1547,2299,1604][12][,I,][Times New Roman]]disclaims any right, of supervision or control over the architects, designers, engineers or
[[443,1604,2299,1661][12][,I,][Times New Roman]]persons responsible for drafting or formulating of the plans, drawings and related
[[450,1662,597,1719][12][,I,][Times New Roman]]docum [[583,1662,985,1719][12][,I,][Times New Roman]]ents of Developer.
[[600,1777,750,1834][12][,I,][Times New Roman]]8.14.5 [[750,1777,1582,1834][12][,I,][Times New Roman]]Survival. The provisions of this Section [[1570,1777,2300,1834][12][,I,][Times
New Roman]]8.14 shall survive the termination
[[450,1834,852,1891][12][,I,][Times New Roman]]of this Agreement.
4.4Rights of the City to Enforce.Section 17.15.2of the DDA provides as follows:
[[798,2107,1391,2164][12][,I,][Times New Roman]]Rights of the City to Enforce [[1363,2107,1413,2164][12][,I,][Times New Roman]]. [[1398,2107,2300,2164][12][,I,][Times New Roman]]The
City is the beneficiary of the terms and
[[593,2164,2300,2221][12][,I,][Times New Roman]]provisions of this Agreement and of the covenants running with the land, for and in
[[600,2222,2299,2279][12][,I,][Times New Roman]]its own right and for the purposes of protecting the interests of the community and
[[600,2279,1520,2336][12][,I,][Times New Roman]]other parties, public or private, in whos [[1490,2279,2300,2336][12][,I,][Times New Roman]]e favor and for whose benefit this
[[597,2337,2299,2394][12][,I,][Times New Roman]]Agreement and the covenants running with the land have been provided, without
[[600,2394,2300,2451][12][,I,][Times New Roman]]regard to whether the City has been, remains or is an owner of any land or interest
[[600,2452,1809,2509][12][,I,][Times New Roman]]in the Property, the Development Parcels or in the Project. [[1794,2452,2300,2509][12][,I,][Times New Roman]]The City shall have the
[[600,2509,2300,2566][12][,I,][Times New Roman]]right, if this Agreement or any covenants herein are breached, to exercise all rights
[[600,2567,2299,2624][12][,I,][Times New Roman]]and remedies, and to maintain any actions or suits at law or in equity or other
[[593,2624,1940,2681][12][,I,][Times New Roman]]proper proceedings to enforce the curing of such breaches to whi [[1904,2624,2300,2681][12][,I,][Times New Roman]]ch it or any other
[[600,2682,2300,2739][12][,I,][Times New Roman]]beneficiaries of this Agreement and any covenants may be entitled. For avoidance
[[600,2739,1284,2796][12][,I,][Times New Roman]]of doubt, the provisions of this [[1252,2739,1554,2796][12][,I,][Times New Roman]]Section 17.15 [[1546,2739,2300,2796][12][,I,][Times
New Roman]]shall be included in the Quitclaim
[[598,2797,2133,2854][12][,I,][Times New Roman]]Deed and the Special Restrictions and shall apply with respect to all cov [[2107,2797,2300,2854][12][,I,][Times New Roman]]enants,
[[600,2854,2060,2911][12][,I,][Times New Roman]]representations, warranties, releases and indemnities included therein.
5.This Quitclaim Deed is made and accepted upon (a) the covenants, conditions, restrictions
and other matters set forth in the Special Restrictions, which for the term of the Special Restrictions
areincorporated herein by reference with the same force and effect as though fully set forth herein,
and (b) subject to reservations, covenants and restrictions as set forth in the Government Deeds.
Each future transfer or conveyanceof theParcelsor any portion thereof shall include those
disclosures and environmental covenants contained in the Government Deeds.
6.The terms of this Quitclaim Deedare hereby agreed and declared by the GRANTEE and
the GRANTOR to be covenants running with the land and enforceable as restrictions and equitable
servitudes against theParcels, and are hereby declared to be and shall be binding upon and burden
theParcelsand the GRANTEE and each and every Successor Ownerof GRANTEEowning all or
any portion of the Parcels and all Persons claiming by, through or under GRANTEE or any
Successor Owner of the Parcels or such portion thereoffor the benefit of the GRANTORand its
Governmental Successors,and the GRANTOR and its Governmental Successors shall retain the
right to enforce the restrictions and equitable servitudes against the Parcelsand the same shall be
enforceable solely by the GRANTOR and its Governmental Successors.
[[1092,1302,1591,1359][12][,I,][Times New Roman]]{signatures on next pag [[1566,1302,1639,1359][12][,I,][Times New Roman]]e}
IN WITNESS WHEREOF, the GRANTOR, THE CITY OF TUSTIN, has caused this Quitclaim
Deed to be executed on the day first above written.
CITY OF TUSTIN:
Dated:________________
By:___________________________
Jeffrey C. Parker,
City Manager
ATTEST:
By:______________________
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:___________________________
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:__________________________
Amy E. Freilich
[[912,2384,1668,2441][12][,I,][Times New Roman]]{signatures continued on next page}
BY EXECUTING THIS QUITCLAIM DEED BELOW, ON AND AS OF THE DATE
WRITTEN BELOW, GRANTEE HEREBY (A) ACKNOWLEDGESAND ACCEPTSon behalf
of itself and all subsequent owners of the Parcels or any portion thereof: (A)this Quitclaim Deed
and the covenants and agreementsof the GRANTEEcontained in this Quitclaim Deedand
(B)ACKNOWLEDGES AND ACCEPTS the Special Restrictions and assumesand agrees to be
bound by all of the obligations and liabilities, covenants, conditions,and restrictions in the Special
Restrictions.
____________________,
a___________________
By: ________________________
Name: ______________________
Title: _______________________
By: ________________________
Name: ______________________
Dated: __________________Title: _______________________
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalfof which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIAALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
EXHIBIT
LEGAL DESCRIPTION OF PARCELS
[[1115,466,1468,523][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
DESCRIPTION OF THE REMEDIAL ACTION TAKENBY THE GOVERNMENT
(DDA Definitions Applicable to Section 4.1,4.2and 6of the Quitclaim Deed)
AccrueAccruing
act or occur pursuant to which a legally enforceable claim could be asserted by any Person.
Active Negligence
to act.
Agreement
City
mean the GRANTORas defined in this Quitclaim Deed
and each assignee or
CityReleased Parties
shallmean GRANTORand its elected and appointed officials,
employees, agents, attorneys, affiliates, representatives, consultants, contractors, successors and
assigns, individually.
ClaimClaims
orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses
costs and expenses attributable to compliance with judicial and regulatory orders and requirements,
fines, penalties, liens, taxes, or any type of compensation whatsoever, direct or indirect, known or
unknown, foreseen or unforeseen.
Close of Escrow
e title
to the Property by the GRANTORtoGRANTEEpursuant to this Quitclaim Deed, which occurred
concurrently with the Recording of this Quitclaim Deed.
Developer
GRANTEEpursuant to this Quitclaim Deed and all
subsequent owners of the Parcels or any portion thereof.
Developer Releasing Party
shall mean the GRANTEEpursuant to this Quitclaim Deed
and each Successor Owner and each and every Person claiming by, through or under GRANTEE
or any Successor Owner and including, without limitation, each End User.
Development Parcels
DA
mean the Development Agreement by and between GRANTORand
GRANTEEwith respect to the Parcels, which agreement was executed prior to or substantially
concurrently with the execution of the Quitclaim Deed and Recorded.
Due Diligence Information
relating to the Property furnished to GRANTEE by GRANTOR, or its elected and appointed
officials,employees, agents, attorneys, affiliates, representatives, contractors or consultants, in
connection with s due diligencepursuant to the DDA.
Effective Date
this Quitclaim Deed.
End User
shall mean any (a)Homebuyer who purchases a Home;(b)
Association with respect to any Common Areawithin the Property conveyed to the
Association,(c)utility or Governmental Authority with respect to any transfer of portions of the
Property or grants of easements affecting the Development Parcels desirable for the development
of the Development Parcelsand/or (d)any lighting or landscaping district.
Environmental Agency
Agency; the California Environmental Protection Agency and all of its sub-entities, including any
Regional Water Quality Control Board, the State Water Resources Control Board, the DTSC, the
South Coast Air Quality Management District, and the California Air Resources Board; the City
of Tustin; any Fire Department or Health Department with jurisdiction over the Property; and/or
any other federal, State, regional or local governmental agency or entity that has or asserts
jurisdiction over Hazardous Substance Releases or the presence, use, storage, transfer,
manufacture, licensing, reporting, permitting, analysis, disposal or treatment of Hazardous
Materials in, on, under, about, or affecting the Project.
Environmental Laws
nces,
rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence
as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating
or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory
decrees, judgments and orders and common law, including those relating to industrial hygiene,
public safety, human health, or protection of the environment, or the reporting, licensing,
permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage,
discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous Materials.
Environmental Laws shall include the Comprehensive Environmental Response, Compensation
CERCLA
and Liability Act of 1980, as amended (42 U.S.C. Section
Resource Conservation and Recovery Act, as amended, (42 U.S.C. Section6901 et seq.)
RCRA
U.S.C. Section1251 et seq.);
the Toxic Substances Control Act, as amended, (15 U.S.C. Section2601 et seq.); the Hazardous
Substances Account Act (Chapter6.8 of the California Health and Safety Code Section25300 et
seq.); Chapter 6.5 commencing with Section25100 (Hazardous Waste Control) and Chapter6.7
commencing with Section25280 (Underground Storage of Hazardous Substances) of the
California Health and Safety Code; and the California Water Code, Sections13000 et seq.
Environmental Matters
the environmental condition of the Property;
(b)the compliance of the Property with Environmental Laws; (c)the existence, Release,
threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous
Materials at any time on, in, under, or from, the Property or any current or future improvement
thereon or any portion thereof, and/or (d)Claims of or acts or omission to act of any Governmental
Authority or any other third party arising from or related to any actual, threatened, or suspected
Release of a Hazardous Material on, in, under, or from, about, or adjacent to the Property or any
current or future improvement thereon, including any Investigation or Remediation at or about the
Property or any current or future improvement thereon.
Governmental Authorityand Governmental Authorities
shall mean, respectively,
each and all federal, State, county, municipal and local governmental and quasi-governmental
bodies and authorities (including the United States of America, the State and any political
subdivision, public corporation, district, joint powers authority or other political or public entity)
or departments thereof having or exercising jurisdiction over the Parties, the Project, the Property
or over any property owned by the GRANTORupon which work is conducted by or on behalf of
GRANTEE in connection with construction of the Project or such portions of the foregoing as the
context indicates.
Governmental Successors
assign of the GRANTORthat is a governmental entity or association.
Hazardous Materials
Hazardous SubstanceHazardous MaterialHazardous Waste
(a)
Toxic Substance
Compensation and
Liability Act of 1980, 42 U.S.C. subsection9601, et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. subsection5101, et seq., or the Resource Conservation and Recovery Act, 42
U.S.C. subsection6901, et seq.;
ExtremelyHazardous WasteHazardous Waste
(b)
Restricted Hazardous Waste
25115, 25117, or 25122.7 of the California
Health and Safety Code, or is listed or identified pursuant to subsection25140 or 44321 of the
California Health and Safety Code;
Hazardous MaterialHazardous SubstanceHazardous Waste
(c)
Toxic Air ContaminantMedical Waste
25281, 25316, 25501,
25501.1, 117690 or 39655 of the California Health and Safety Code;
OilHazardous Substance
(d)
Section311 of the Federal Water Pollution Control Act, 33 U.S.C. Section1321, as well as any
other hydro carbonic substance or by-product;
Hazardous WasteExtremely Hazardous
(e)
WasteAcutely Hazardous Waste
Code of Regulations;
(f)Listed by the State as a chemical known by the State to cause cancer or
reproductive toxicity pursuant to Section25249.8 of the California Health and Safety Code;
(g)A material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures damages or threatens to damage, health,
safety, or the environment, or is required by any law or public agency to be remediated, including
remediation which such law or public agency requires in order for the property to be put to any
lawful purpose;
(h)Any material whose presence would require remediation pursuant to the
guidelines set forth in the State Leaking Underground Fuel Tank Field Manual, whether or not the
presence of such material resulted from a leaking underground fuel tank;
(i)Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. subsection136 et seq.;
(j)Asbestos, PCBs and other substances regulated under the Toxic Substances
Control Act, 15 U.S.C. subsection2601 et seq.;
(k)
---
however produced, regulated under the Atomic Energy Act, 42U.S.C. subsection2011 et seq., the
Nuclear Waste Policy Act, 42 U.S.C. subsection10101 etseq., or pursuant to the California
Radiation Control Law, California Health and Safety Code Section114960 et seq.;
(l)Regulated under the Occupational Safety and Health Act, 29U.S.C.
subsection651 et seq., or the California Occupational Safety and Health Act, California Labor
Code subsection6300 et seq.; and/or
(m)Regulated under the Clean Air Act, 42 U.S.C. subsection7401 etseq. or
pursuant to Division 26 of the California Health and Safety Code.
HomeHomes
hall mean the approximately 218 residencesand related
improvements that are to be developed on the Parcels, asrow townhomes,motor court flats and
single-familyresidences.
Homebuyer
and occupy for
residential purposes, an individual detached or attached Homefor use as a single-family residence.
to the laws and regulations of the State for the management of a common area development.
Intangible Property
policies maintained by or for the benefit of the GRANTOR) and all permits, licenses, approvals
and authorizations issued by any Governmental Authorities in connection with the Parcels and
transferred to GRANTEE pursuant to Bill of Sale executed and delivered by GRANTOR
concurrently with the execution and delivery of this Quitclaim Deed.
Investigation(s)
, sampling,
monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying
of or concerning the Property, including the air, soil, surface water, and groundwater, and the
surrounding population or properties, or any of them, to characterize or evaluate the nature, extent
or impact of Hazardous Materials.
Person
association, corporation, limited liability company, joint venture, firm, joint stockcompany,
unincorporated association, Governmental Authority, governmental agency or other entity,
domestic or foreign.
Project
and installation on the Development Parcels of a
residential condominiumproject containing approximately 218 Homes for sale to Homebuyersin
three product types, accompanying amenities and above and below ground infrastructure
improvements, including, without limitation, utilities, utility extensions, utility systems,
landscaping, storm drains and detention facilities.
Project Fair Share Contribution
Backbone Infrastructure Program required to be paid by theGRANTEEpursuant to the DDA.
Property
fined in this Quitclaim Deed, together with all
existing improvements, if any, located thereon as of the Effective Date of this Quitclaim Deed and
the Intangible Property.
Quitclaim Deed
RecordRecordationRecordingRecorded
specified instrument, or the current or past recording of the specified instrument, in the official
records of Orange County California.
Release
threat of
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing, or dumping into the environment.
RemediateRemediation
defined
under Section101(25) of CERCLA, and similar actions with respect to Hazardous Materials as
defined under comparable state and local laws, and any other cleanup, removal, containment,
abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or
other mitigation or remediation of Hazardous Materials or Releases required by any Environmental
Agency or within the purview of any Environmental Laws.
State
Successor Owner
ean (a)with respect to the Parcels, each and every Person
owning or acquiring fee title to all or any portion of the Parcels, but excluding each and every End
User, and (b)with respect to the GRANTOR, its Governmental Successors.
Tustin Legacy Backbone Infrastructure Program
Backbone Infrastructure Program in effect as of the Effective Date.
ATTACHMENT 12
MEMORANDUM OF DDA
CITY OF TUSTIN OFFICIAL
BUSINESS REQUEST DOCUMENT
TO BE RECORDED AND TO BE
EXEMPT FROM RECORDING FEES
PER GOVERNMENT CODE §6103
AND §27383.
Recording requested by and
when recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
SPACE ABOVE THIS LINE FOR
MEMORANDUM OF
TUSTIN LEGACY
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR DISPOSITION PARCEL6B
[[467,1700,2099,1757][12][B,I,][Times New Roman]][PRIOR TO EXECUTION, CONFORM ALL QUOTED SECTIONS OF DDA
[[818,1758,1766,1815][12][B,I,][Times New Roman]]TO THEN CURRENT VERSION OF DDA]
This MEMORANDUM OF TUSTIN LEGACY DISPOSITION AND DEVELOPMENT
Memorandumof DDA
AGREEMENTFOR DISPOSITION PARCEL6B(
Memorandum Effective Date
of_______, 201__by and among the CITY OF TUSTIN, a
City
municipal corporation of the State of California (and ________________, a
Developer
_______________(to confirm that the City and CalAtlantic Group, Inc., a Delaware
[[555,2151,913,2208][12][B,I,][Times New Roman]][{if no Assignm [[903,2151,1265,2208][12][B,I,][Times New Roman]]ent or Merger: [[1225,2151,1282,2208][12][B,I,][Times New Roman]]} [[1319,2151,1558,22
08][12][B,I,][Times New Roman]]Developer [[1594,2151,1648,2208][12][B,I,][Times New Roman]]/ [[1637,2151,1687,2208][12][B,I,][Times New Roman]]{ [[1655,2151,2232,2208][12][B,I,][Times
New Roman]]if Assignment or Merger
corporation [[2201,2152,2300,2209][12][,I,][Times New Roman]]:},
[[1081,2209,1306,2266][12][B,I,][Times New Roman]]Original [[1268,2209,1507,2266][12][B,I,][Times New Roman]]Developer
have entered into that certain Tustin
LegacyDisposition and Development AgreementforDisposition Parcel6B,dated as of______,
[[437,2324,738,2381][12][B,I,][Times New Roman]]{if amended: [[698,2324,755,2381][12][B,I,][Times New Roman]]} [[863,2324,1178,2381][12][B,I,][Times New Roman]]Original DDA
201_[[418,2325,468,2382][12][,I,][Times New Roman]][ [[2143,2325,2219,2382][12][,I,][Times New Roman]]__ [[2211,2325,2275,2382][12][,I,][Times New Roman]]to
[[300,2382,1823,2439][12][,I,][Times New Roman]]Tustin Legacy Disposition and Development Agreement for Disposition [[1791,2382,1994,2439][12][,I,][Times New Roman]]Parcel 6 [[1967,2382,2019,2439][1
2][,I,][Times New Roman]]B [[2018,2382,2300,2439][12][,I,][Times New Roman]]dated as of
[[968,2439,1091,2496][12][B,I,][Times New Roman]]DDA [[1162,2439,1532,2496][12][B,I,][Times New Roman]]{if not amended: [[1492,2439,1549,2496][12][B,I,][Times New Roman]]} [[1578,2439,1701,2496][12][
B,I,][Times New Roman]]DDA [[1724,2439,1779,2496][12][B,I,][Times New Roman]]]
[[299,2440,475,2497][12][,I,][Times New Roman]]______ [[450,2440,572,2497][12][,I,][Times New Roman]], 201 [[546,2440,622,2497][12][,I,][Times New Roman]]__ [[597,2440,647,2497][12][,I,][Times
New Roman]]( [[613,2440,910,2497][12][,I,][Times New Roman]]as amended, [[870,2440,959,2497][12][,I,][Times New Roman]]the [[1535,2440,1585,2497][12][,I,][Times New Roman]]( [[1746,2440,1818,2497][
12][,,][Times New Roman]]. [[1778,2440,1977,2497][12][,,][Times New Roman]]The City [[1960,2440,2082,2497][12][,,][Times New Roman]]and [[2042,2440,2283,2497][12][,,][Times New Roman]]Developer
PartyParties
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such
terms in the DDA.
1.Real Property Affected by the DDA.
Property
1.1The Development Parcels. The property affected by the DDA
consistingof(a)the real property legally described and depicted on attached hereto
and incorporated herein by referencebut excepting therefromthe matters set forth in Section 2 of
Development
theQuitclaim Deed (as defined below) (taking into account such exceptions, the
Parcels
), (b)all existing improvements, if any, presently located on the Development Parcels,
(c)all appurtenances pertaining to the Development Parcels,(d)all permits, licenses, approvals and
authorizations issued by any Governmental Authority relating to the Development Parcels and
(e)rty as more fully
described in the DDA
.
1.2Quitclaim Deed. Immediately following the recordation of this Memorandum of
DDA, the Property shall be conveyed by the City to Developerpursuant to, among other
conveyance instruments,that certain Quitclaim Deed For Disposition Parcel6Band Covenants,
Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section
1472 made by the City in favor of Developer, dated as of_________, 201_and recorded
Quitclaim Deed
immediately following the recordation of this .
1.3Special Restrictions. This Memorandum of DDA has been executed as of the
Memorandum Effective Date and shall be recorded in the Office of the County Recorder, Orange
Official Records
prior to theRecordingin the Official
Records of (i) that certain Declaration of Special Restrictions for Disposition Parcel6Bexecuted
Special
by the City and acknowledged by Developeraffecting the Development Parcels
Restrictions
),and (ii)the Quitclaim Deed. The DDA, this Memorandum of DDA, the Special
Restrictions and all covenants, conditions, restrictions and obligations set forth in the Special
Restrictionsandthe Quitclaim Deed shall be binding upon the Development Parcelsand, unless
and until terminated in accordance with their respective terms,shall govern the use and
development of the Property, the Development Parcelsand the Improvements by Developer.
2.Effect of theDDA. The DDA imposes certain obligations, agreements, covenants,
conditions and restrictions with respect to the Development Parcelsand with respect to
Developeracquisition, development, use, operation and ultimate disposition thereof, that run
with the Development Parcels, unless and until terminatedin accordance with their respective
terms,as further set forth in the DDA. Among these obligations are the following:
(a)Certain restrictions onTransfer, conveyance and/or assignment of the DDA
and/or theProperty and Improvements thereonor any portion thereof or interest therein, whether
voluntary or involuntary, and certain restrictions on the Transfer of Control of Developer or
[[1626,2486,1676,2543][12][B,I,][Times New Roman]]{ [[1644,2486,1855,2543][12][B,I,][Times New Roman]]Original [[1812,2486,1869,2543][12][B,I,][Times New Roman]]}
, eachcontained in Section2of the DDA, thatterminate
as to all of the Development Parcels upon execution and Recordingby the City of a Certificateof
Compliance;
(b)Certain restrictions on Mortgages contained in Section 2.2.4of the
[[300,2766,543,2823][12][B,I,][Times New Roman]]{Original}
DDA, including without limitation, a prohibition on encumbrance of the Development
Parcelswith any Mortgage,which limitations terminate as to all of the Development Parcels upon
execution and Recordingby the City of a Certificateof Compliance;
[[1679,280,1921,337][12][B,I,][Times New Roman]]{Original}
(c)The releases contained in Section4.5.2of the DDAthat remain
in effectin perpetuityand run with the land for the benefit of the City and its Governmental
Successorsand burden the Development Parcels and Developer and the Successor Owners owning
all or any portion of the Development Parcels and all Persons claiming by, through or under
Developer or any Successor Owner of the Development Parcels or such portion thereof, including
each End User;
[[1344,676,1587,733][12][B,I,][Times New Roman]]{Original}
(d)Subject to Section 9.7 of the DDA, theindemnities set forth in
Sections5.5,8.12(e),8.15,8.16,10.1,10.2and17.12.1which run with the landand bind
Developer, its successor and assigns and each and every Successor Owner, which shallsurvive the
Close of Escrow and the execution and Recordingby the City of the Certificate of Compliance
and shall not merge into the Quitclaim Deed; provided however that upon sale or transfer of the
fee interest in the Development Parcels or any portion thereof to an End User, such indemnities
shall terminate as to such End User and shall cease to run with the land acquired by such End User
or any of their respective successors and assigns;
(e)The Right of Purchase in favor of the City, contained in Section16.3ofthe
[[300,1243,543,1300][12][B,I,][Times New Roman]]{Original}
DDA (copied verbatim below), that terminatesas to all Development Parcels upon
execution and Recordingby the City of a Certificateof Compliance;and
(f)The Right of Reversion in favor of the City contained in Section16.4of the
[[300,1466,543,1523][12][B,I,][Times New Roman]]{Original}
DDA(copied verbatim below), that terminates as to all of theDevelopment Parcels
upon execution and Recordingby the City of a Certificateof Compliance.
3.Effect of DDA onHomebuyers and OtherEnd Users.Notwithstanding anything to the
contrary set forth in this Memorandum of DDA, recognizing that the Development Parcels will be
subdivided and developed with the intent to sell individual Homes toHomebuyers, thegeneral
prohibition against Transfer outlined herein shall not be applicable to (a)the sale of individual
Homes to Homebuyers, or (b) the transfer of Common Area or Common Area Improvements to a
provided, however, that sale or transfer of any Home shall not be
permitted unless and until such Home is authorized for sale pursuant to State law, including
regulations promulgated by the California Bureau of Real Estateand the transfer of any Property
to be constructed thereon pursuant to the Scope of Development, the Approved Plans and the
CC&Rs have been Completed. Except for the provisions of the DDA, the Quitclaim Deed, the
Special Restrictions,or the Certificate of Compliance expressly stating to the contrary, andthe
provisions of this Memorandum of DDA,the obligations, covenants, conditions and restrictions
set forth therein and in this Memorandum of DDA shall not survive a Transfer to an End Userand
upon such Transfer to an End User, shall cease to run with the land Transferred to theEnd User,
and each End Usershall take title to the property conveyed to it free and clear of the lien or charge
of the DDA or this Memorandum of DDA, except to the extent provided in the Quitclaim Deed.
For ease of reference only, the following erbatim from the
[[300,2666,543,2723][12][B,I,][Times New Roman]]{Original}
DDA:
[[627,2773,868,2830][12][B,I,][Times New Roman]]End User
[[1314,2774,2150,2831][12][,I,][Times New Roman]]Homebuyer who purchases a Home;
[[450,2832,541,2889][12][,I,][Times New Roman]](b)
[[1617,281,2150,338][12][,I,][Times New Roman]]utility or Governmental
[[447,339,743,396][12][,I,][Times New Roman]]Authority wi [[707,339,2149,396][12][,I,][Times New Roman]]th respect to any transfer of portions of the Property or grants of
[[450,397,2149,454][12][,I,][Times New Roman]]easements affecting the Development Parcels desirable for the development of the
[[448,454,1879,511][12][,I,][Times New Roman]]Development Parcels and/or (d) any lighting or landscaping district.
4.Right of Purchase and Right of Reversion. For ease of reference only, the following
[[1556,618,1799,675][12][B,I,][Times New Roman]]{Original}
italicized Sections16.3 and 16.4arecopied verbatim from the DDA:
[[599,726,1003,783][12][B,I,][Times New Roman]]Right of Purchase
[[450,727,587,784][12][,I,][Times New Roman]]16.3. [[976,727,1026,784][12][,I,][Times New Roman]].
[[600,842,775,899][12][,I,][Times New Roman]]16.3.1. [[748,842,2299,899][12][,I,][Times New Roman]]Following the Close of Escrow and prior to the issuance of a Certificate of
[[300,899,591,956][12][,I,][Times New Roman]]Compliance [[552,899,2299,956][12][,I,][Times New Roman]]with respect to the Property and the Project, in the event of a Repurchase Default
(as
[[1311,956,1716,1013][12][B,I,][Times New Roman]]Right of Purchase
[[300,1014,1728,1071][12][,I,][Times New Roman]]time, to purchase all or a portion of the Development Parcels and all [[1691,1014,2300,1071][12][,I,][Times New Roman]]applicable Entitlements
and
[[300,1072,2299,1129][12][,I,][Times New Roman]]other development rights, consents, authorizations, variances, waivers, licenses, permits,
[[300,1129,1515,1186][12][,I,][Times New Roman]]certificates and approvals from any governmental or quasi [[1480,1129,1530,1186][12][,I,][Times New Roman]]- [[1494,1129,2300,1186][12][,I,][Times
New Roman]]governmental authority, Transferable
[[1645,1186,2134,1243][12][B,I,][Times New Roman]]Repurchased Property
[[298,1187,1188,1244][12][,I,][Times New Roman]]Products and all other appurtenant rights
[[298,1244,2300,1301][12][,I,][Times New Roman]]Repurchased Property shall exclude (a) those Buildings and the Phases upon which such Buildings
[[300,1359,510,1416][12][,I,][Times New Roman]]delivery
[[300,1417,2299,1474][12][,I,][Times New Roman]]exercise of the Right of Purchase; and (b) as to the Buildings and Phases excluded pursuant to
[[300,1474,1780,1531][12][,I,][Times New Roman]]clause (a) above, (i) the Common Area and any Improvements located wi [[1744,1474,2300,1531][12][,I,][Times New Roman]]thin such Building
and/or
[[298,1532,2299,1589][12][,I,][Times New Roman]]Phase, as applicable, and (ii) all Entitlements and other development rights, consents,
[[300,1589,2299,1646][12][,I,][Times New Roman]]authorizations, variances, waivers, licenses, permits, certificates and approvals from any
[[298,1647,814,1704][12][,I,][Times New Roman]]governmental or quasi [[779,1647,829,1704][12][,I,][Times New Roman]]- [[794,1647,1468,1704][12][,I,][Times New Roman]]governmental authority,
and a [[1443,1647,2300,1704][12][,I,][Times New Roman]]ll other appurtenant rights applicable
[[300,1704,2299,1761][12][,I,][Times New Roman]]thereto, including those units allocated to development of the Repurchased Property as shown in
[[300,1762,2300,1819][12][,I,][Times New Roman]]the Approved Plans or established pursuant to any Recorded Condominium Map approved by the
[[300,1819,675,1876][12][,I,][Times New Roman]]City pursuant to [[638,1819,934,1876][12][,I,][Times New Roman]]Section 8.12( [[899,1819,976,1876][12][,I,][Times New Roman]]g) [[943,1819,993,1876][12
][,I,][Times New Roman]].
[[749,1933,1202,1990][12][B,I,][Times New Roman]]Repurchase Default
[[600,1934,775,1991][12][,I,][Times New Roman]]16.3.2. [[1166,1934,2299,1991][12][,I,][Times New Roman]]. Subject to extension for Force Majeure Delay with
[[300,1992,557,2049][12][,I,][Times New Roman]]respect to [[531,1992,1055,2049][12][,I,][Times New Roman]]clauses (a) through (e) [[1046,1992,2299,2049][12][,I,][Times New Roman]]below
only, the City shall have the right to acquire the
[[298,2049,1911,2106][12][,I,][Times New Roman]]Repurchased Property for the Repurchase Price in accordance with this Sect [[1876,2049,2300,2106][12][,I,][Times New Roman]]ion 16.3 and
upon
[[1359,2106,1808,2163][12][B,I,][Times New Roman]]Repurchase Default
[[750,2222,841,2279][12][,I,][Times New Roman]](a) [[898,2222,2300,2279][12][,I,][Times New Roman]]Developer fails to comply with the Inventory Commitment and such
[[300,2279,1975,2336][12][,I,][Times New Roman]]becomes a Material Default in accordance with the notice and cure provisions of [[1938,2279,2110,2336][12][,I,][Times New Roman]]Section
[[2097,2279,2210,2336][12][,I,][Times New Roman]]14.2 [[2185,2279,2235,2336][12][,I,][Times New Roman]];
[[750,2394,841,2451][12][,I,][Times New Roman]](b) [[898,2394,2299,2451][12][,I,][Times New Roman]]Developer fails to comply with the Schedule of Performance and
[[300,2452,2299,2509][12][,I,][Times New Roman]]such becomes a Material Default in accordance with the notice and cure provisions of
[[300,2509,472,2566][12][,I,][Times New Roman]]Section [[460,2509,572,2566][12][,I,][Times New Roman]]14.2 [[547,2509,597,2566][12][,I,][Times New Roman]];
[[750,2624,839,2681][12][,I,][Times New Roman]](c) [[898,2624,2299,2681][12][,I,][Times New Roman]]Developer constructs Improvements that are not in substantial
[[300,2682,517,2739][12][,I,][Times New Roman]]conformi [[481,2682,1629,2739][12][,I,][Times New Roman]]ty with the Approved Plans and the requirements of [[1600,2682,1797,2739][12][,I,][Times
New Roman]]Sections [[1779,2682,1904,2739][12][,I,][Times New Roman]]8.1.4 [[1892,2682,1992,2739][12][,I,][Times New Roman]]and [[1979,2682,2067,2739][12][,I,][Times New Roman]]8.9
[[2063,2682,2300,2739][12][,I,][Times New Roman]]and such
[[300,2739,1975,2796][12][,I,][Times New Roman]]becomes a Material Default in accordance with the notice and cure provisions of [[1938,2739,2110,2796][12][,I,][Times New Roman]]Section
[[2097,2739,2210,2796][12][,I,][Times New Roman]]14.2 [[2185,2739,2235,2796][12][,I,][Times New Roman]];
[[750,281,841,338][12][,I,][Times New Roman]](d) [[898,281,2300,338][12][,I,][Times New Roman]]For a period of one hundred eighty (180) consecutive calendar days,
[[298,339,408,396][12][,I,][Times New Roman]]Dev [[380,339,2025,396][12][,I,][Times New Roman]]eloper is in Material Default of the maintenance obligations set forth in [[2003,339,2175,396][12][,I,]
[Times New Roman]]Section [[2163,339,2276,396][12][,I,][Times New Roman]]12.2
[[300,397,2299,454][12][,I,][Times New Roman]](including as set forth in the Special Restrictions, the CC&Rs or Landscape Maintenance
[[297,454,1661,511][12][,I,][Times New Roman]]Agreement), in accordance with the notice and cure provisions of [[1624,454,1796,511][12][,I,][Times New Roman]]Section [[1783,454,1896,511][12][,I,][Ti
mes New Roman]]14.2 [[1871,454,1921,511][12][,I,][Times New Roman]];
[[750,569,839,626][12][,I,][Times New Roman]](e) [[898,569,2300,626][12][,I,][Times New Roman]]Developer commits waste on the Property and such failure becomes
[[300,627,1790,684][12][,I,][Times New Roman]]a Material Default in accordance with the notice and cure provisions of [[1753,627,1925,684][12][,I,][Times New Roman]]Section [[1913,627,2026,684][12][
,I,][Times New Roman]]14.2 [[2001,627,2051,684][12][,I,][Times New Roman]];
[[750,742,830,799][12][,I,][Times New Roman]](f) [[900,742,1941,799][12][,I,][Times New Roman]]The occurrence of a Developer Insolvency Event;
[[750,857,841,914][12][,I,][Times New Roman]](g) [[898,857,1599,914][12][,I,][Times New Roman]]Developer fails to pay prior to d [[1575,857,2300,914][12][,I,][Times New Roman]]elinquency
any property taxes or
[[300,914,1430,971][12][,I,][Times New Roman]]assessments, including District assessments or to pay [[1395,914,1459,971][12][,I,][Times New Roman]]to [[1449,914,2300,971][12][,I,][Times
New Roman]]City any other sums due hereunder and
[[300,972,2299,1029][12][,I,][Times New Roman]]such becomes a Material Default in accordance with the notice and cure provisions of
[[300,1029,472,1086][12][,I,][Times New Roman]]Section [[460,1029,572,1086][12][,I,][Times New Roman]]14.2 [[547,1029,597,1086][12][,I,][Times New Roman]];
[[750,1144,841,1201][12][,I,][Times New Roman]](h) [[897,1144,1367,1201][12][,I,][Times New Roman]]A Material Default a [[1342,1144,2300,1201][12][,I,][Times New Roman]]rises because
of a voluntary or involuntary
[[300,1202,984,1259][12][,I,][Times New Roman]]Transfer or Transfer of Control.
[[749,1316,1390,1373][12][B,I,][Times New Roman]]Exercise of Right of Purchase
[[600,1317,775,1374][12][,I,][Times New Roman]]16.3.3. [[1363,1317,2300,1374][12][,I,][Times New Roman]]. The City may exercise its Right of Purchase
[[300,1374,2299,1431][12][,I,][Times New Roman]]by delivering written notice to Developer stating that the City is exercising its Right of Purchase
[[300,1432,2299,1489][12][,I,][Times New Roman]]and specifying the Repurchased Property which it intends to purchase; provided that such notice
[[300,1489,613,1546][12][,I,][Times New Roman]]is delivered a [[588,1489,2299,1546][12][,I,][Times New Roman]]t least ninety (90) calendar days prior to the date on which the City requires
[[298,1547,2299,1604][12][,I,][Times New Roman]]Developer to convey the Property to the City pursuant to the Right of Purchase and otherwise in
[[300,1604,765,1661][12][,I,][Times New Roman]]accordance with this [[728,1604,999,1661][12][,I,][Times New Roman]]Section 16.3 [[974,1604,1943,1661][12][,I,][Times New Roman]]. The
Right of Purchase shall be a lien and enc [[1916,1604,2301,1661][12][,I,][Times New Roman]]umbrance on the
[[298,1662,2299,1719][12][,I,][Times New Roman]]Property and Improvements thereon that shall be paramount to the lien and charge of any
[[296,1719,2299,1776][12][,I,][Times New Roman]]Mortgage, Construction Lien and/or other lien upon the Property. The Repurchased Property
[[300,1777,1497,1834][12][,I,][Times New Roman]]shall be delivered to the City at close of escrow for the Rep [[1472,1777,2300,1834][12][,I,][Times New Roman]]urchased Property free
and clear of all
[[300,1834,2300,1891][12][,I,][Times New Roman]]liens and Mortgages and subject only to (x) the Permitted Exceptions at the time of the applicable
[[300,1892,2299,1949][12][,I,][Times New Roman]]original Close of Escrow for such portion of the Property, and (y) all other matters created in
[[300,1949,754,2006][12][,I,][Times New Roman]]connection with the E [[735,1949,2296,2006][12][,I,][Times New Roman]]ntitlements and the development of the Project pursuant to this Agreement.
[[747,2063,1242,2120][12][B,I,][Times New Roman]]Access and Inspection
[[600,2064,775,2121][12][,I,][Times New Roman]]16.3.4. [[1221,2064,1679,2121][12][,I,][Times New Roman]]. The provisions of [[1648,2064,1925,2121][12][,I,][Times New Roman]]Section
16.5 [[1919,2064,2300,2121][12][,I,][Times New Roman]]shall apply with
[[300,2122,1095,2179][12][,I,][Times New Roman]]respect to the Repurchased Property.
[[749,2236,938,2293][12][B,I,][Times New Roman]]Process
[[600,2237,775,2294][12][,I,][Times New Roman]]16.3.5. [[908,2237,1646,2294][12][,I,][Times New Roman]]. If the City is entitled to and elects [[1628,2237,2300,2294][12][,I,][Times
New Roman]]to repurchase the Repurchased
[[300,2352,2300,2409][12][,I,][Times New Roman]]election to exercise the Right of Purchase, open an escrow with an escrow agent designated by the
[[300,2409,857,2466][12][,I,][Times New Roman]]City for the purchase and [[850,2409,2300,2466][12][,I,][Times New Roman]]sale, and shall execute an escrow agreement that shall provide
that
[[298,2467,2300,2524][12][,I,][Times New Roman]]Developer shall pay all costs of the escrow and shall include such usual and ordinary terms as are
[[300,2524,2055,2581][12][,I,][Times New Roman]]reasonably required by the escrow agent and by the transaction; (b) no later than five ( [[2022,2524,2300,2581][12][,I,][Times New Roman]]5)
Business
[[298,2582,2299,2639][12][,I,][Times New Roman]]Days after the opening of escrow, Developer shall place into the escrow appropriate quitclaim
[[300,2639,2261,2696][12][,I,][Times New Roman]]deeds and bill of sale conveying fee title to the Repurchased Property; and (c) no later than eighty [[2233,2639,2283,2696][12][,I,][Times
New Roman]]-
[[291,2697,1303,2754][12][,I,][Times New Roman]]five (85) calendar days after the opening of the [[1268,2697,2300,2754][12][,I,][Times New Roman]]escrow, the City shall deposit into
the escrow an
[[300,2754,2299,2811][12][,I,][Times New Roman]]amount equal to (i) the Repurchase Price minus (ii) the Lien Release Amounts, if any, minus (iii)
[[300,2812,2300,2869][12][,I,][Times New Roman]]any amounts then owed to the City by Developer and/or any Successor Owner, including any City
[[298,2869,612,2926][12][,I,][Times New Roman]]Liens arising [[567,2869,2300,2926][12][,I,][Times New Roman]]pursuant to this Agreement with respect to the Repurchased Property and
minus (iv)
[[300,281,2299,338][12][,I,][Times New Roman]]the actual costs incurred by the City to acquire environmental and pollution legal liability
[[300,339,1932,396][12][,I,][Times New Roman]]insurance coverage for the Reacquired Property, including coverage for loss, rem [[1918,339,2300,396][12][,I,][Times New Roman]]ediation
expense
[[300,397,2299,454][12][,I,][Times New Roman]]and legal defense expenses. The escrow shall close, and title to the Repurchased Property shall
[[300,454,2299,511][12][,I,][Times New Roman]]be conveyed to the City, no later than five (5) Business Days after the City has deposited into
[[300,512,1331,569][12][,I,][Times New Roman]]escrow the Repurchase Price, but in no event p
[[297,569,2030,626][12][,I,][Times New Roman]]Acknowledgement with respect to any repairs to the Improvements made pursuant to [[1992,569,2262,626][12][,I,][Times New Roman]]Section
16.5 [[2237,569,2312,626][12][,I,][Times New Roman]].
[[300,627,2139,684][12][,I,][Times New Roman]]Concurrently with the close of escrow, Developer shall comply with its obligations under [[2104,627,2300,684][12][,I,][Times New Roman]]Section
[[300,684,413,741][12][,I,][Times New Roman]]14.3 [[401,684,649,741][12][,I,][Times New Roman]]only with r [[619,684,2300,741][12][,I,][Times New Roman]]espect to the Repurchased Property.
Nothing herein shall restrict the right of the
[[300,742,2299,799][12][,I,][Times New Roman]]City to terminate its exercise of the Right of Purchase at any time prior to the close of escrow and
[[300,799,1670,856][12][,I,][Times New Roman]]such termination shall not be a default by the City. At the close of e [[1642,799,2300,856][12][,I,][Times New Roman]]scrow, real property
taxes and
[[300,857,2299,914][12][,I,][Times New Roman]]assessments with respect to the Repurchased Property shall be prorated between Developer and
[[300,914,1996,971][12][,I,][Times New Roman]]City as of the date of the close of escrow. All prorations shall be based upon a 365 [[1973,914,2023,971][12][,I,][Times New Roman]]- [[1989,914,2300,97
1][12][,I,][Times New Roman]]day year and
[[300,972,981,1029][12][,I,][Times New Roman]]actual days elapsed. All closing [[970,972,2299,1029][12][,I,][Times New Roman]]costs, including the cost of an ALTA policy of title insurance
in
[[291,1029,2299,1086][12][,I,][Times New Roman]]favor of the City with respect to the Repurchased Property shall be borne by Developer and
[[300,1087,1079,1144][12][,I,][Times New Roman]]deducted from the Repurchase Price.
[[750,1201,1566,1258][12][B,I,][Times New Roman]]Cooperation and Grant of Easements
[[600,1202,775,1259][12][,I,][Times New Roman]]16.3.6. [[1537,1202,1884,1259][12][,I,][Times New Roman]]. The Parties s [[1854,1202,2300,1259][12][,I,][Times New Roman]]hall cooperate
with
[[300,1259,2299,1316][12][,I,][Times New Roman]]respect to and concurrently with the close of escrow for the Repurchased Property, shall each
[[300,1317,2299,1374][12][,I,][Times New Roman]]reserve and/or grant to the other such roadway, utility, access and other easement rights as may
[[300,1374,1239,1431][12][,I,][Times New Roman]]be required by the other Party and its succes [[1209,1374,2299,1431][12][,I,][Times New Roman]]sors in interest to develop the Property
as a unified
[[300,1432,2299,1489][12][,I,][Times New Roman]]development and as contemplated by the Entitlements, the CC&Rs, this Agreement and the Other
[[297,1489,598,1546][12][,I,][Times New Roman]]Agreements.
[[750,1603,1489,1660][12][B,I,][Times New Roman]]Termination of Right of Purchase
[[600,1604,775,1661][12][,I,][Times New Roman]]16.3.7. [[1462,1604,2299,1661][12][,I,][Times New Roman]]. In the event that prior to delivery by
[[300,1662,2140,1719][12][,I,][Times New Roman]]the City of written notice to Developer of its exercise of the Right of Purchase pursuant to [[2103,1662,2300,1719][12][,I,][Times New
Roman]]Section
[[300,1719,450,1776][12][,I,][Times New Roman]]16.3.2 [[425,1719,2299,1776][12][,I,][Times New Roman]], Developer or any Person on behalf of Developer either (a) cures the Repurchase
Default
[[299,1777,691,1834][12][,I,][Times New Roman]]which is the basis
[[300,1834,2299,1891][12][,I,][Times New Roman]]Transfer of Control in violation of this Agreement, or (b) Completes the Improvements upon the
[[298,1892,1891,1949][12][,I,][Times New Roman]]Property that is subject to the Right of Purchase, such Right of Purchase shall [[1852,1892,2300,1949][12][,I,][Times New Roman]]cease
and terminate
[[299,1949,2300,2006][12][,I,][Times New Roman]]with respect to such portions of the Repurchased Property for which the Material Default is cured
[[300,2007,2300,2064][12][,I,][Times New Roman]]or for which Improvements are so Completed only. In the event the City has declared a Repurchase
[[298,2064,1116,2121][12][,I,][Times New Roman]]Default, Developer shall not have the ri [[1078,2064,2300,2121][12][,I,][Times New Roman]]ght to apply for building permits for Vertical
Improvements
[[300,2122,2299,2179][12][,I,][Times New Roman]]in a manner that affects or thwarts the ability of the City to exercise its Right of Purchase. The
[[298,2179,2175,2236][12][,I,][Times New Roman]]Right of Purchase shall not apply to the Property after the recordation by the City of the Certi [[2131,2179,2300,2236][12][,I,][Times
New Roman]]ficate
[[300,2237,668,2294][12][,I,][Times New Roman]]of Compliance.
[[749,2351,1229,2408][12][B,I,][Times New Roman]]Effect of Repurchase
[[600,2352,775,2409][12][,I,][Times New Roman]]16.3.8. [[1202,2352,1669,2409][12][,I,][Times New Roman]]. The provisions of [[1640,2352,1920,2409][12][,I,][Times New Roman]]Section
16.6 [[1915,2352,2300,2409][12][,I,][Times New Roman]]shall apply with
[[300,2409,2299,2466][12][,I,][Times New Roman]]respect to the Repurchased Property following close of escrow. Following close of escrow, under
[[300,2467,1455,2524][12][,I,][Times New Roman]]no circumstances shall Developer or any lienholder ha [[1431,2467,2300,2524][12][,I,][Times New Roman]]ve any right or claim to, or against,
the
[[298,2524,2300,2581][12][,I,][Times New Roman]]Repurchased Property. Notwithstanding the purchase of the Repurchased Property by the City as
[[293,2582,667,2639][12][,I,][Times New Roman]]provided in this [[631,2582,905,2639][12][,I,][Times New Roman]]Section 16.3 [[880,2582,2299,2639][12][,I,][Times New Roman]], this Agreement
shall remain in full force and effect with respect to
[[300,2639,693,2696][12][,I,][Times New Roman]]the portions of the [[676,2639,2300,2696][12][,I,][Times New Roman]]Property and Improvements not purchased by the City. The Right of
Purchase
[[300,2697,2300,2754][12][,I,][Times New Roman]]shall not defeat or render invalid or limit any rights or interests provided in easements, covenants,
[[300,2754,1961,2811][12][,I,][Times New Roman]]conditions or restrictions in favor of third parties who are not Developer Af [[1917,2754,2300,2811][12][,I,][Times New Roman]]filiates
that are
[[300,2812,2299,2869][12][,I,][Times New Roman]]approved by the City (or constituting a Permitted Transfer) and recorded on the Repurchased
[[298,2869,966,2926][12][,I,][Times New Roman]]Property purchased hereunder.
[[749,338,1232,395][12][B,I,][Times New Roman]]Survival of Provisions
[[600,339,775,396][12][,I,][Times New Roman]]16.3.9. [[1202,339,1711,396][12][,I,][Times New Roman]]. The provisions of this [[1672,339,1942,396][12][,I,][Times New Roman]]Section
16.3 [[1927,339,2300,396][12][,I,][Times New Roman]]shall survive the
[[300,397,851,454][12][,I,][Times New Roman]]termination of this Agreem [[838,397,949,454][12][,I,][Times New Roman]]ent.
[[450,511,563,568][12][B,I,][Times New Roman]]16.4 [[600,511,1101,568][12][B,I,][Times New Roman]]The Right of Reversion
[[1080,512,1130,569][12][,I,][Times New Roman]].
[[448,619,2299,676][12][,I,][Times New Roman]]Following the Close of Escrow and prior to the recordation of the Certificate of
[[300,677,2299,734][12][,I,][Times New Roman]]Compliance, in the event of the occurrence of any Reversion Action Trigger (defined in
[[300,734,472,791][12][,I,][Times New Roman]]Section [[460,734,610,791][12][,I,][Times New Roman]]16.4.1 [[579,734,2300,791][12][,I,][Times New Roman]]), and in addition to its other
rights or remedies as a result of the occurrence of any
[[300,792,2299,849][12][,I,][Times New Roman]]such Reversion Action Trigger, the City shall have the right on the terms and subject to the
[[300,849,865,906][12][,I,][Times New Roman]]conditions set forth in this [[826,849,998,906][12][,I,][Times New Roman]]Section [[986,849,1099,906][12][,I,][Times New Roman]]16.4 [[1084,849,1203,906]
[12][,I,][Times New Roman]]to re [[1175,849,1225,906][12][,I,][Times New Roman]]- [[1192,849,1760,906][12][,I,][Times New Roman]]enter and take possession o [[1726,849,2300,906][12][,I,][Times
New Roman]]f the Reacquired Property
[[1778,906,2227,963][12][B,I,][Times New Roman]]Right of Reversion
[[300,964,2299,1021][12][,I,][Times New Roman]]notwithstanding that the Reacquired Property may be encumbered by liens, including
[[300,1022,1582,1079][12][,I,][Times New Roman]]Construction Liens. The revesting of any Reacquired Property [[1567,1022,2300,1079][12][,I,][Times New Roman]]by the City is referred
to herein as
[[366,1078,742,1135][12][B,I,][Times New Roman]]Reversion Event
[[300,1137,2298,1194][12][,I,][Times New Roman]]by the City of its intent to exercise the Right of Reversion. The City shall be entitled to exercise
[[300,1194,782,1251][12][,I,][Times New Roman]]the Right of Reversion [[774,1194,2299,1251][12][,I,][Times New Roman]]at any time on or after the occurrence of any of any one or more
of the
[[298,1252,2299,1309][12][,I,][Times New Roman]]Reversion Action Triggers; provided that the City has complied with the conditions to exercise of
[[300,1309,1060,1366][12][,I,][Times New Roman]]the Right of Reversion set forth in [[1029,1309,1201,1366][12][,I,][Times New Roman]]Section [[1188,1309,1338,1366][12][,I,][Times New
Roman]]16.4.2 [[1313,1309,2071,1366][12][,I,][Times New Roman]]. The Right of Reversion shall be [[2040,1309,2300,1366][12][,I,][Times New Roman]]a lien and
[[300,1367,2299,1424][12][,I,][Times New Roman]]encumbrance on the Property that shall be paramount to the lien and charge of any Mortgage,
[[300,1424,1440,1481][12][,I,][Times New Roman]]Construction Lien and/or other lien upon the Property.
[[750,1531,1827,1588][12][B,I,][Times New Roman]]Certain Defaults Triggering the Right of Reversion
[[600,1532,775,1589][12][,I,][Times New Roman]]16.4.1. [[1806,1532,2300,1589][12][,I,][Times New Roman]]. Following the Close
[[300,1589,693,1646][12][,I,][Times New Roman]]of Escrow and pri [[657,1589,2299,1646][12][,I,][Times New Roman]]or to the recordation of the Certificate of Compliance, the City may
exercise the
[[298,1647,2299,1704][12][,I,][Times New Roman]]Right of Reversion with respect any portion of the Development Parcels and any Improvements
[[300,1704,2023,1761][12][,I,][Times New Roman]]thereon and all applicable Entitlements and other development rights, consents, au [[1999,1704,2300,1761][12][,I,][Times New Roman]]thorizations,
[[300,1762,2268,1819][12][,I,][Times New Roman]]variances, waivers, licenses, permits, certificates and approvals from any governmental or quasi [[2233,1762,2283,1819][12][,I,][Times
New Roman]]-
[[298,1819,2299,1876][12][,I,][Times New Roman]]governmental authority, the Transferable Products and all other appurtenant rights applicable
[[1317,1877,2300,1934][12][,I,][Times New Roman]]pon the occurrence of any one of the following
[[300,2049,716,2106][12][,I,][Times New Roman]]shall exclude those [[703,2049,2300,2106][12][,I,][Times New Roman]]Buildings and the Phases upon which such Buildings are located for
which
[[298,2107,2299,2164][12][,I,][Times New Roman]]Developer has been issued a building permit prior to the Reversion Action Trigger Date which
[[2021,2164,2300,2221][12][,I,][Times New Roman]]nd (b) as to
[[300,2222,2299,2279][12][,I,][Times New Roman]]the Buildings and Phases excluded pursuant to clause (a) above, (i) the Common Area and any
[[298,2279,2300,2336][12][,I,][Times New Roman]]Improvements located within such Building and/or Phase, as applicable, and (ii) all Entitlements
[[300,2337,1449,2394][12][,I,][Times New Roman]]and other development rights, consents, authorization [[1424,2337,2300,2394][12][,I,][Times New Roman]]s, variances, waivers, licenses,
permits,
[[300,2394,1515,2451][12][,I,][Times New Roman]]certificates and approvals from any governmental or quasi [[1480,2394,1530,2451][12][,I,][Times New Roman]]- [[1494,2394,2300,2451][12][,I,][Times
New Roman]]governmental authority, and all other
[[300,2452,2299,2509][12][,I,][Times New Roman]]appurtenant rights applicable thereto, including those units allocated to development of the
[[298,2509,871,2566][12][,I,][Times New Roman]]Reacquired Property as sh [[846,2509,2299,2566][12][,I,][Times New Roman]]own in the Approved Plans or established pursuant to any Recorded
[[300,2567,1765,2624][12][,I,][Times New Roman]]Condominium Map approved by the City pursuant to Section 8.12(g).
[[750,2674,841,2731][12][,I,][Times New Roman]](a) [[898,2674,1554,2731][12][,I,][Times New Roman]]Developer fails to commence [[1525,2674,1954,2731][12][,I,][Times New Roman]]the Grading
Work [[1923,2674,2099,2731][12][,I,][Times New Roman]]within [[2069,2674,2283,2731][12][,I,][Times New Roman]]three (3)
[[300,2732,475,2789][12][,I,][Times New Roman]]months [[459,2732,948,2789][12][,I,][Times New Roman]]after Close of Escrow [[912,2732,1571,2789][12][,I,][Times New Roman]]or to Complete
the Horizontal [[1534,2732,2008,2789][12][,I,][Times New Roman]]Improvements within [[1972,2732,2108,2789][12][,I,][Times New Roman]]thirty [[2081,2732,2131,2789][12][,I,][Times New
Roman]]- [[2097,2732,2283,2789][12][,I,][Times New Roman]]six (36)
[[300,2789,2299,2846][12][,I,][Times New Roman]]months after Close of Escrow, subject to extension for Force Majeure Delay for a period not to
[[300,2847,1072,2904][12][,I,][Times New Roman]]exceed a total of twelve (12) months;
[[750,281,841,338][12][,I,][Times New Roman]](b) [[898,281,1978,338][12][,I,][Times New Roman]]Developer fails to Complete the Project within [[1958,281,2094,338][12][,I,][Times New
Roman]]thirty [[2066,281,2116,338][12][,I,][Times New Roman]]- [[2083,281,2284,338][12][,I,][Times New Roman]]six (36)
[[300,339,852,396][12][,I,][Times New Roman]]months following opening [[844,339,2299,396][12][,I,][Times New Roman]]of the Models to the public, as such date may be extended for Force
[[296,397,1546,454][12][,I,][Times New Roman]]Majeure Delay (not to exceed a total of twelve (12) months);
[[750,504,839,561][12][,I,][Times New Roman]](c) [[898,504,2299,561][12][,I,][Times New Roman]]Developer commits waste on the Property and such becomes a
[[296,562,1729,619][12][,I,][Times New Roman]]Material Default in accordance with the notice and cure provisions [[1718,562,1793,619][12][,I,][Times New Roman]]of [[1775,562,1946,619][12][,I,][Times
New Roman]]Section [[1934,562,2047,619][12][,I,][Times New Roman]]14.2 [[2021,562,2300,619][12][,I,][Times New Roman]], subject to
[[300,619,1071,676][12][,I,][Times New Roman]]extension for Force Majeure Delay;
[[750,727,841,784][12][,I,][Times New Roman]](d) [[898,727,2300,784][12][,I,][Times New Roman]]For a period of one hundred eighty (180) consecutive calendar days,
[[298,784,2299,841][12][,I,][Times New Roman]]Developer is in Material Default with respect to the Inventory Commitment set forth in
[[300,842,472,899][12][,I,][Times New Roman]]Section [[460,842,585,899][12][,I,][Times New Roman]]8.9.3 [[560,842,610,899][12][,I,][Times New Roman]];
[[750,949,839,1006][12][,I,][Times New Roman]](e) [[898,949,1339,1006][12][,I,][Times New Roman]]For a period of one h [[1314,949,2300,1006][12][,I,][Times New Roman]]undred eighty (180)
consecutive calendar days,
[[298,1007,2025,1064][12][,I,][Times New Roman]]Developer is in Material Default of the maintenance obligations set forth in [[2003,1007,2175,1064][12][,I,][Times New Roman]]Section
[[2163,1007,2276,1064][12][,I,][Times New Roman]]12.2
[[300,1064,2299,1121][12][,I,][Times New Roman]](including as set forth in the Special Restrictions, CC&Rs or Landscape Maintenance Agreement),
[[300,1122,807,1179][12][,I,][Times New Roman]]in accordance with the [[769,1122,1403,1179][12][,I,][Times New Roman]]notice and cure provisions of [[1366,1122,1538,1179][12][,I,][Times
New Roman]]Section [[1525,1122,1638,1179][12][,I,][Times New Roman]]14.2 [[1613,1122,1663,1179][12][,I,][Times New Roman]];
[[750,1229,830,1286][12][,I,][Times New Roman]](f) [[900,1229,1941,1286][12][,I,][Times New Roman]]The occurrence of a Developer Insolvency Event;
[[750,1337,841,1394][12][,I,][Times New Roman]](g) [[900,1337,1843,1394][12][,I,][Times New Roman]]With respect to any Guarantor which has pr [[1813,1337,2300,1394][12][,I,][Times New
Roman]]ovided a Guaranty to
[[300,1394,534,1451][12][,I,][Times New Roman]]the City, t [[498,1394,847,1451][12][,I,][Times New Roman]]he occurrence o [[814,1394,1476,1451][12][,I,][Times New Roman]]f a Guarantor
Illiquidity Event [[1440,1394,2299,1451][12][,I,][Times New Roman]], unless Developer shall, within the time
[[293,1452,1952,1509][12][,I,][Times New Roman]]period required thereby, provide substitute security meeting the requirements of [[1915,1452,2087,1509][12][,I,][Times New Roman]]Section
[[2075,1452,2163,1509][12][,I,][Times New Roman]]4.7 [[2137,1452,2200,1509][12][,I,][Times New Roman]].1 [[2175,1452,2299,1509][12][,I,][Times New Roman]]; or
[[750,1559,841,1616][12][,I,][Times New Roman]](h) [[897,1559,2299,1616][12][,I,][Times New Roman]]A Material Default arises because of a voluntary or involuntary
[[300,1617,984,1674][12][,I,][Times New Roman]]Transfer or Transfer of Control.
[[750,1723,978,1780][12][B,I,][Times New Roman]]Condition [[956,1723,1748,1780][12][B,I,][Times New Roman]]s to Exercise of the Right of Reversion
[[600,1724,775,1781][12][,I,][Times New Roman]]16.4.2. [[1727,1724,2300,1781][12][,I,][Times New Roman]]. The City shall be entitled
[[300,1782,2300,1839][12][,I,][Times New Roman]]to exercise the Right of Reversion at any time on or after the applicable Reversion Action Trigger
[[298,1839,2070,1896][12][,I,][Times New Roman]]Date, without regard to any notice and cure periods except as expressly provided in Sect [[2035,1839,2300,1896][12][,I,][Times New Roman]]ion
16.4.1;
[[293,1897,2299,1954][12][,I,][Times New Roman]]provided that the City has provided written notice to Developer that the City elects to exercise its
[[298,1954,2299,2011][12][,I,][Times New Roman]]Right of Reversion and such notice states the date for the Reversion Event. The provisions of
[[300,2012,1270,2069][12][,I,][Times New Roman]]Section 16.5 shall be applicable to exercise of [[1234,2012,2300,2069][12][,I,][Times New Roman]]the Right of Reversion. The date for
the Reversion
[[298,2069,2300,2126][12][,I,][Times New Roman]]Event shall not occur before the later of (a) the date that is ninety (90) calendar days after the date
[[300,2127,2299,2184][12][,I,][Times New Roman]]of such notice of exercise; (b) the date that is five (5) Business Days after Developer has had the
[[300,2184,2299,2241][12][,I,][Times New Roman]]opportunity to address the City Council at a public meeting regarding the Reversion Action
[[300,2242,2298,2299][12][,I,][Times New Roman]]Trigger; and (c) the date that is five (5) Business Days following the delivery of the City Repair
[[297,2299,1720,2356][12][,I,][Times New Roman]]Acknowledgment with respect to any repairs to the Improvements mad [[1695,2299,2300,2356][12][,I,][Times New Roman]]e pursuant to Section
16.5.2
[[300,2357,2299,2414][12][,I,][Times New Roman]]below. In the event that, following the first notice by City of its election to exercise the Right of
[[298,2414,2299,2471][12][,I,][Times New Roman]]Reversion and prior to the Reversion Event, Developer or any Person on behalf of Developer
[[300,2472,986,2529][12][,I,][Times New Roman]]either (a) cures the Reversion Ac
[[300,2529,2299,2586][12][,I,][Times New Roman]]of Reversion or (b) Completes the Improvements prior to the date of the Reversion Event, such
[[298,2587,2221,2644][12][,I,][Times New Roman]]Right of Reversion shall cease and terminate with respect to such Reversion Action Trigger on [[2198,2587,2300,2644][12][,I,][Times New
Roman]]ly;
[[293,2644,2299,2701][12][,I,][Times New Roman]]provided that the provisions of this sentence shall not be applicable to any subsequent notice by
[[300,2702,1474,2759][12][,I,][Times New Roman]]the City of its election to exercise the Right of Reversion.
[[749,2808,1362,2865][12][B,I,][Times New Roman]]Sale of Reacquired Property
[[600,2809,775,2866][12][,I,][Times New Roman]]16.4.3. [[1335,2809,2300,2866][12][,I,][Times New Roman]]. Upon the revesting in the City of title to the
[[298,2867,513,2924][12][,I,][Times New Roman]]Reacquir [[483,2867,2299,2924][12][,I,][Times New Roman]]ed Property, the City shall use reasonable efforts to resell the Reacquired Property
as
[[300,281,2299,338][12][,I,][Times New Roman]]soon and in such manner as the City shall find feasible, in accordance with applicable state law,
[[300,339,1716,396][12][,I,][Times New Roman]]if any, and consistent with the objectives of this Agreement, to a qua [[1692,339,2300,396][12][,I,][Times New Roman]]lified and responsible
party
[[300,397,2299,454][12][,I,][Times New Roman]]or parties (as determined by the City in its sole discretion) who will assume the obligation of
[[300,454,2299,511][12][,I,][Times New Roman]]making or completing the Improvements. Concurrently with the resale of the entire Reacquired
[[298,512,1069,569][12][,I,][Times New Roman]]Property, or concurrently with each r [[1039,512,2300,569][12][,I,][Times New Roman]]esale of any portion of the Reacquired Property, the
proceeds
[[300,569,1543,626][12][,I,][Times New Roman]]thereof shall be applied in the following order and amounts:
[[899,670,1225,727][12][B,I,][Times New Roman]]Delinquencies
[[750,671,841,728][12][,I,][Times New Roman]](a) [[1195,671,2150,728][12][,I,][Times New Roman]]. First, to repayment in full of all delinquent
[[300,721,1550,778][12][,I,][Times New Roman]]tax, assessment and other liens with respect to the portion of t [[1514,721,2133,778][12][,I,][Times New Roman]]he Reacquired Property sold;
[[899,820,1483,877][12][B,I,][Times New Roman]]Reimbursement to the City
[[750,821,841,878][12][,I,][Times New Roman]](b) [[1456,821,2150,878][12][,I,][Times New Roman]]. Second, to reimburse the City
[[300,871,2149,928][12][,I,][Times New Roman]]on its own behalf for all costs and expenses incurred by the City, in connection with the
[[300,921,1957,978][12][,I,][Times New Roman]]recapture, management and resale of the Reacquired Property, or any part [[1946,921,2150,978][12][,I,][Times New Roman]]thereof,
[[300,971,662,1028][12][,I,][Times New Roman]]including: a pro [[638,971,688,1028][12][,I,][Times New Roman]]- [[654,971,2150,1028][12][,I,][Times New Roman]]rata share of the salaries
of personnel engaged in such action (based on
[[300,1021,2149,1078][12][,I,][Times New Roman]]the amount of time spent by such personnel on such matters relating to the Reacquired
[[298,1071,1749,1128][12][,I,][Times New Roman]]Property as compared to the aggregate amount of time worked by such p [[1724,1071,2150,1128][12][,I,][Times New Roman]]ersonnel; all taxes,
[[300,1121,2149,1178][12][,I,][Times New Roman]]assessments and utility charges with respect to the Reacquired Property; any payments
[[300,1171,2149,1228][12][,I,][Times New Roman]]made or necessary to be made to discharge or prevent from attaching or being made any
[[300,1221,1606,1278][12][,I,][Times New Roman]]subsequent encumbrances or liens due to obligations, Defaults o [[1581,1221,2150,1278][12][,I,][Times New Roman]]r acts of Developer or
any
[[300,1271,2149,1328][12][,I,][Times New Roman]]Successor Owner or each and every Person claiming by, through or under Developer or
[[300,1321,2149,1378][12][,I,][Times New Roman]]any Successor Owner; any expenditures made or obligations incurred with respect to the
[[300,1371,1576,1428][12][,I,][Times New Roman]]making or completion of the agreed improvements or any par [[1546,1371,2150,1428][12][,I,][Times New Roman]]t thereof on the Reacquired
[[300,1471,2150,1528][12][,I,][Times New Roman]]incurred in the marketing and sale of the Reacquired Property; all legal fees and expenses;
[[300,1521,1242,1578][12][,I,][Times New Roman]]all escrow and title fees and costs; all survey [[1204,1521,2150,1578][12][,I,][Times New Roman]]and due diligence fees and costs; all
the Lien
[[298,1571,2149,1628][12][,I,][Times New Roman]]Release Amounts, if any, paid by the City to third parties; and any amounts otherwise
[[300,1621,2149,1678][12][,I,][Times New Roman]]owing to the City by Developer and/or any Successor Owner under this Agreement or the
[[300,1671,1127,1728][12][,I,][Times New Roman]]Other Agreements, including any City [[1093,1671,2150,1728][12][,I,][Times New Roman]]Liens and the actual cost incurred by the City
to
[[300,1721,2149,1778][12][,I,][Times New Roman]]acquire environmental and pollution legal liability insurance coverage for the Reacquired
[[298,1771,2100,1828][12][,I,][Times New Roman]]Property, including coverage for loss, remediation expense and legal defense expenses.
[[899,1870,1477,1927][12][B,I,][Times New Roman]]Reimbursement to Deve [[1450,1870,1586,1927][12][B,I,][Times New Roman]]loper
[[750,1871,839,1928][12][,I,][Times New Roman]](c) [[1555,1871,2150,1928][12][,I,][Times New Roman]]. Third, to reimburse
[[298,1921,2149,1978][12][,I,][Times New Roman]]Developer up to the amount equal to the Repurchase Price attributable to the portion of
[[300,1971,1019,2028][12][,I,][Times New Roman]]the Reacquired Property sold; and
[[899,2076,1522,2133][12][B,I,][Times New Roman]]Balance Retained by the City
[[750,2077,841,2134][12][,I,][Times New Roman]](d) [[1494,2077,2150,2134][12][,I,][Times New Roman]]. Any balance remaining after
[[300,2134,1159,2191][12][,I,][Times New Roman]]such reimbursements shall be retained by [[1144,2134,1652,2191][12][,I,][Times New Roman]]the City as its property.
[[749,2241,1611,2298][12][B,I,][Times New Roman]]Effect of Exercise of Right of Reversion
[[600,2242,775,2299][12][,I,][Times New Roman]]16.4.4. [[1590,2242,2300,2299][12][,I,][Times New Roman]]. The provisions of Section 16.6
[[300,2299,2299,2356][12][,I,][Times New Roman]]shall apply with respect to the Reacquired Property following close of escrow. Following such
[[300,2357,1384,2414][12][,I,][Times New Roman]]close of escrow, under no circumstances shall Develo [[1352,2357,2300,2414][12][,I,][Times New Roman]]per or any lienholder have any right
or claim
[[300,2414,2299,2471][12][,I,][Times New Roman]]to, or against, the Repurchased Property. Notwithstanding the acquisition of the Reacquired
[[298,2472,1130,2529][12][,I,][Times New Roman]]Property by the City as provided in this [[1092,2472,1363,2529][12][,I,][Times New Roman]]Section 16.4 [[1338,2472,2300,2529][12][,I,][Times
New Roman]], this Agreement shall remain in full force and
[[300,2529,2311,2586][12][,I,][Times New Roman]]effect with respect to the portions of the Property and Improvements not purchased by the City.
[[293,2644,593,2701][12][,I,][Times New Roman]]provided in e [[566,2644,2300,2701][12][,I,][Times New Roman]]asements, covenants, conditions or restrictions in favor of third parties
who are not
[[298,2702,2299,2759][12][,I,][Times New Roman]]Developer Affiliates that are approved by the City (or constituting a Permitted Transfer) and
[[300,281,1837,338][12][,I,][Times New Roman]]recorded on the portion of the Property for which the City exercises its rig [[1813,281,2300,338][12][,I,][Times New Roman]]hts under this
Section
[[300,339,413,396][12][,I,][Times New Roman]]16.4 [[388,339,438,396][12][,,][Times New Roman]].
[[750,446,1553,503][12][B,I,][Times New Roman]]Cooperation and Grant of Easements
[[600,447,775,504][12][,I,][Times New Roman]]16.4.5. [[1523,447,2299,504][12][,I,][Times New Roman]]. Concurrently with close of escrow
[[291,504,2299,561][12][,I,][Times New Roman]]for the Reacquired Property, the Parties shall each reserve and/or grant to the other such
[[300,562,1498,619][12][,I,][Times New Roman]]roadway, utility, access and other easement rights as may [[1485,562,2300,619][12][,I,][Times New Roman]]be required by the other Party
and its
[[300,619,2299,676][12][,I,][Times New Roman]]successors in interest to develop the Property as a unified development and as contemplated by
[[300,677,1804,734][12][,I,][Times New Roman]]the Entitlements, the CC&Rs, this Agreement and the Other Agreements.
[[749,783,1242,840][12][B,I,][Times New Roman]]Survival of Provisions
[[600,784,775,841][12][,I,][Times New Roman]]16.4.6. [[1212,784,1644,841][12][,I,][Times New Roman]]. The provisions of [[1623,784,1795,841][12][,I,][Times New Roman]]Section [[1770,784,1820,841][12
][,I,][Times New Roman]]s [[1805,784,1955,841][12][,I,][Times New Roman]]16.4.3 [[1945,784,2045,841][12][,I,][Times New Roman]]and [[2036,784,2186,841][12][,I,][Times New Roman]]16.4.4
[[2176,784,2301,841][12][,I,][Times New Roman]]and
[[300,842,422,899][12][,I,][Times New Roman]]this [[385,842,694,899][12][,I,][Times New Roman]]Section 16.4.6 [[682,842,1670,899][12][,I,][Times New Roman]]shall survive the termination
of this Agreement.
5.Certificateof Compliance. If Developersatisfies the Conditions Precedent set forth in
[[665,1006,925,1063][12][B,I,][Times New Roman]]{Original}
Section9.3of the DDA with respect to issuance of a Certificateof Compliancefor the
Development Parcels,thenthe City shall furnish DeveloperwithaCertificateof Compliance in
recordable form upon written requestby Developer.The Certificateof Compliance shall be
binding upon the Parties to this Memorandum of DDAand their Successor Owners,and each and
every Person claiming by, through or under Developer or any SuccessorOwneras and to the extent
set forth therein, and shall be deemed to be
completion of the obligations ofDeveloper pursuant to the DDA and shall be evidence of
termination ofthe DDA, subject only to thecontinuing effectivenessof the DDA provisions
referencedinSections 9.7(a) through (e) ofthe DDAandthe Other Agreements, each of which
shall survive in accordance with its respective terms.Developer, on behalf of itself and its
Successor Owners, and each and every Person claiming by, through or under Developer or any
SuccessorOwner, including each End User, hereby consentsto the recordation of the Certificate
of Compliance against the entirety of the Property, notwithstanding that portions of all of the
Property may have been transferred prior thereto to Successor Owners or End Usersand confirms
that no further acknowledgement or consent by the then-owners of the Property shall be required
in connection with such Recording. For ease of reference only, the following italicized Section9.7
[[865,1926,1125,1983][12][B,I,][Times New Roman]]{Original}
iscopied verbatim from the DDA:
Effect of Certificate of Compliance; Termination of Agreement.
9.7.
[[447,2199,2299,2256][12][,I,][Times New Roman]]After the Recording of the Certificate of Compliance, except as set forth below, the DDA
[[300,2257,2299,2314][12][,I,][Times New Roman]]shall terminate and any Person then owning or thereafter purchasing, leasing, or otherwise
[[300,2314,1857,2371][12][,I,][Times New Roman]]acquiring any interest in the Development Parcels subject to the Certificate [[1844,2314,2300,2371][12][,I,][Times New Roman]]of Compliance
shall
[[300,2372,2299,2429][12][,I,][Times New Roman]]not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability
[[300,2429,2299,2486][12][,I,][Times New Roman]]under this Agreement with respect to such Improvements, except that the Quitclaim Deed, the
[[298,2487,1317,2544][12][,I,][Times New Roman]]Profit Participation Agreement, the Special R [[1299,2487,2299,2544][12][,I,][Times New Roman]]estrictions, the CC&Rs, and the Landscape
[[296,2544,2300,2601][12][,I,][Times New Roman]]Maintenance Agreement shall each remain in effect for the term specified therein. Issuance of the
[[300,2602,2299,2659][12][,I,][Times New Roman]]Certificate of Compliance shall not waive any rights or claims that the City may have against any
[[298,2659,673,2716][12][,I,][Times New Roman]]Person for latent [[649,2659,2300,2716][12][,I,][Times New Roman]]or patent defects in design, construction or similar matters under any
applicable
[[300,2774,1820,2831][12][,I,][Times New Roman]]to this Agreement. The Certificate of Compliance shall be in such form [[1827,2774,2300,2831][12][,I,][Times New Roman]]as to permit
it to be
[[298,281,2299,338][12][,I,][Times New Roman]]Recorded. Upon Recordation of the Certificate of Compliance, this Agreement shall terminate,
[[300,339,568,396][12][,I,][Times New Roman]]except that:
[[750,454,841,511][12][,I,][Times New Roman]](a) [[900,454,1308,511][12][,I,][Times New Roman]]the provisions of [[1284,454,1813,511][12][,I,][Times New Roman]]Sections 4.5.2 and 8.14
[[1788,454,2150,511][12][,I,][Times New Roman]], including the
[[300,512,1457,569][12][,I,][Times New Roman]]releases set forth therein, as and to the extent set forth in [[1445,512,2150,569][12][,I,][Times New Roman]]the Quitclaim Deed shall survive
[[300,569,2149,626][12][,I,][Times New Roman]]in perpetuity, shall run with the land and shall be binding upon Developer, its successors
[[300,627,2027,684][12][,I,][Times New Roman]]and assigns and its Successor Owners, as well as Homebuyers and other End Users;
[[750,742,841,799][12][,I,][Times New Roman]](b) [[900,742,1314,799][12][,I,][Times New Roman]]the provisions of [[1293,742,1618,799][12][,I,][Times New Roman]]Section 11.1.4 [[1621,742,1841,799][12
][,I,][Times New Roman]]shall sur [[1811,742,2150,799][12][,I,][Times New Roman]]vive until the
[[300,799,2149,856][12][,I,][Times New Roman]]expiration of the time period for provision of the environmental insurance policy described
[[300,857,2149,914][12][,I,][Times New Roman]]thereby; and the obligation to provide such insurance policy shall remain in effect for a
[[293,914,1530,971][12][,I,][Times New Roman]]period of ten (10) years from Close of Escrow and shall (i) [[1512,914,1919,971][12][,I,][Times New Roman]]continue to run wi [[1883,914,2150,971][12][,I
,][Times New Roman]]th the land
[[300,972,777,1029][12][,I,][Times New Roman]]owned by Developer, [[761,972,1830,1029][12][,I,][Times New Roman]]its successors and assigns and Successor Owners [[1800,972,1850,1029][12][,I,][Times
New Roman]], [[1834,972,2150,1029][12][,I,][Times New Roman]]and not then
[[300,1029,1262,1086][12][,I,][Times New Roman]]conveyed to any Homebuyer or other End User [[1232,1029,1750,1086][12][,I,][Times New Roman]], and (ii) bind Developer [[1720,1029,2150,1086][12][,I,][
Times New Roman]], its successors and
[[300,1087,497,1144][12][,I,][Times New Roman]]assigns [[464,1087,564,1144][12][,I,][Times New Roman]]and [[556,1087,1516,1144][12][,I,][Times New Roman]]Successor Owners and each and
every prior [[1481,1087,2150,1144][12][,I,][Times New Roman]]Developer not released by the
[[300,1144,669,1201][12][,I,][Times New Roman]]City pursuant to [[629,1144,1068,1201][12][,I,][Times New Roman]]Section 2.2.3(a)(iii), [[1034,1144,2150,1201][12][,I,][Times New Roman]]provided
that upon sale or transfer to any Homebuyer
[[300,1202,2149,1259][12][,I,][Times New Roman]]or any other End User, such obligation shall not run with the land or survive with respect
[[300,1259,1283,1316][12][,I,][Times New Roman]]to or bind any such Homebuyer or End User [[1252,1259,2150,1316][12][,I,][Times New Roman]]or any of their respective successors and
[[300,1317,514,1374][12][,I,][Times New Roman]]assigns;
[[750,1432,839,1489][12][,I,][Times New Roman]](c) [[900,1432,1486,1489][12][,I,][Times New Roman]]the indemnities set forth in [[1450,1432,2150,1489][12][,I,][Times New Roman]]Sections
5.5, 8.12(e), 8.15, 8.16,
[[300,1489,779,1546][12][,I,][Times New Roman]]10.1, 10.2 and 17.12.1 [[769,1489,1889,1546][12][,I,][Times New Roman]]shall remain in effect as and to the extent set forth in [[1853,1489,2025,1546][
12][,I,][Times New Roman]]Section [[2013,1489,2125,1546][12][,I,][Times New Roman]]10.3
[[300,1547,2149,1604][12][,I,][Times New Roman]]and shall bind the Persons bound as set forth therein; provided that upon sale or transfer
[[300,1604,2149,1661][12][,I,][Times New Roman]]to any Homebuyer or any other End User, such obligation shall not run with the land or
[[300,1662,1903,1719][12][,I,][Times New Roman]]survive with respect to or bind any such Homebuyer or End User or any of thei [[1867,1662,2150,1719][12][,I,][Times New Roman]]r respective
[[300,1719,828,1776][12][,I,][Times New Roman]]successors and assigns;
[[750,1834,841,1891][12][,I,][Times New Roman]](d) [[900,1834,2150,1891][12][,I,][Times New Roman]]any and all obligations contained in the Federal Deeds shall
[[300,1892,2150,1949][12][,I,][Times New Roman]]survive in perpetuity to the extent set forth therein, unless such obligations are released by
[[300,1949,858,2006][12][,I,][Times New Roman]]the Federal Government;
[[750,2064,839,2121][12][,I,][Times New Roman]](e) [[900,2064,950,2121][12][,I,][Times New Roman]]n [[925,2064,1349,2121][12][,I,][Times New Roman]]either Developer, it [[1313,2064,1833,2121][12][,I,
][Times New Roman]]s successors and assigns [[1815,2064,2150,2121][12][,I,][Times New Roman]](but excluding
[[300,2122,674,2179][12][,I,][Times New Roman]]any End User), [[666,2122,716,2179][12][,I,][Times New Roman]]n [[691,2122,2150,2179][12][,I,][Times New Roman]]or any Successor Owner
shall modify or terminate any prepaid
[[300,2179,2149,2236][12][,I,][Times New Roman]]environmental insurance policy in effect as of the issuance of the Certificate of
[[300,2237,671,2294][12][,I,][Times New Roman]]Compliance; and
[[750,2352,830,2409][12][,I,][Times New Roman]](f) [[900,2352,950,2409][12][,I,][Times New Roman]]t [[914,2352,1280,2409][12][,I,][Times New Roman]]he provisions of [[1242,2352,1550,2409][12][,I,][T
imes New Roman]]Section 11.1.1 [[1536,2352,2150,2409][12][,I,][Times New Roman]]requiring liability insurance
[[300,2409,2150,2466][12][,I,][Times New Roman]]to be maintained in full force and effect until issuance of the Certificate of Compliance and
[[300,2467,2149,2524][12][,I,][Times New Roman]]so long thereafter as necessary to cover any claims of damages suffered by persons or
[[293,2524,1260,2581][12][,I,][Times New Roman]]property prior to issuance of the Certificate [[1229,2524,2150,2581][12][,I,][Times New Roman]]of Compliance, resulting from any acts
or
[[300,2639,2149,2696][12][,I,][Times New Roman]]consultants or other related parties shall (A) continue to run with the land owned by
[[298,2697,538,2754][12][,I,][Times New Roman]]Developer [[508,2697,558,2754][12][,I,][Times New Roman]], [[532,2697,915,2754][12][,I,][Times New Roman]]its successors and [[901,2697,1331,2754][12][,
I,][Times New Roman]]assigns and Success [[1301,2697,2150,2754][12][,I,][Times New Roman]]or Owners and not then conveyed to any
[[298,2754,2150,2811][12][,I,][Times New Roman]]Homebuyer or other End User and (B) bind Developer and its successors and assigns and
[[300,2812,2149,2869][12][,I,][Times New Roman]]Successor Owners and each and every prior Developer not released by the City pursuant
[[300,2869,696,2926][12][,I,][Times New Roman]]to Section 2.2.3(c) [[663,2869,1204,2926][12][,I,][Times New Roman]], provided that upon sale [[1164,2869,2150,2926][12][,I,][Times New
Roman]]or transfer to any Homebuyer or any other End
[[300,281,2149,338][12][,I,][Times New Roman]]User, such obligation shall not run with the land or survive with respect to or bind any
[[300,339,744,396][12][,I,][Times New Roman]]such Homebuyer or [[707,339,948,396][12][,I,][Times New Roman]]any other [[908,339,2163,396][12][,I,][Times New Roman]]End User or any
of their respective successors and assigns.
[[298,454,941,511][12][,I,][Times New Roman]]Notwithstanding anything to th [[917,454,2143,511][12][,I,][Times New Roman]]e contrary set forth in this Agreement, the provisions of this
[[2104,454,2300,511][12][,I,][Times New Roman]]Section
[[300,512,388,569][12][,I,][Times New Roman]]9.7 [[386,512,2299,569][12][,I,][Times New Roman]]shall survive the termination of this Agreement and the Recording of the Certificate of
[[300,569,2299,626][12][,I,][Times New Roman]]Compliance and shall be binding upon Developer, its successors and assigns and Successor
[[300,627,444,684][12][,I,][Times New Roman]]Owne [[417,627,2299,684][12][,I,][Times New Roman]]rs and each and every prior Developer (unless released by the City pursuant to
[[300,684,472,741][12][,I,][Times New Roman]]Section [[460,684,626,741][12][,I,][Times New Roman]]2.2.3(c [[593,684,649,741][12][,I,][Times New Roman]]) [[631,684,706,741][12][,I,][Times
New Roman]]or [[691,684,966,741][12][,I,][Times New Roman]]Section 16.6 [[936,684,2300,741][12][,I,][Times New Roman]]) and Successor Owner thereofthe Development Parcels and the
[[298,742,1985,799][12][,I,][Times New Roman]]Improvements for the term set forth above, and each such party shall be jointly and [[1946,742,2300,799][12][,I,][Times New Roman]]severally
liable
[[300,799,2300,856][12][,I,][Times New Roman]]under such provisions with respect to the entirety of the Project, the Development Parcels and the
[[298,857,1725,914][12][,I,][Times New Roman]]Improvements for the term set forth above, but except as set forth in [[1691,857,1924,914][12][,I,][Times New Roman]]clause (a) [[1905,857,2300,914][12]
[,I,][Times New Roman]]of this Section or
[[300,914,1128,971][12][,I,][Times New Roman]]in the Quitclaim Deed, shall not be bind [[1103,914,1591,971][12][,I,][Times New Roman]]ing on any End User.
6.DDA and Memorandum of DDA Run With the Land. Subject to Section 3 above, the DDA
and this Memorandum of DDA, including, without limitation, the provisionsof the DDArecited
and set forth above, and all other obligations, agreements, covenants, representations, warranties,
and indemnitiesset forth in the DDA and this Memorandum of DDA are hereby agreed by
Developer and by the City to be covenants running with the land and enforceable as equitable
servitudes against the Development Parcelsand are hereby declared to be and shall be binding
upon the Development Parcelsand Developerand its successors and assigns (who may ownall or
any portion of the Development Parcels)for the benefit of the City and its successors and assigns,
subject to the effects of recordation of a Certificateof Compliance as provided for in Section5
above.
7.Priority of DDA and Special Restrictions.The DDA, including the City Lien, the Right of
Purchase and the Right of Reversion contained therein, thisMemorandum of DDA and the Special
Restrictions shall be superior in priority to all Mortgages, provided, however, this priorityshall
not apply to any Mortgages obtained by Homebuyers.
8.City LienRights.The delinquent amount of any payments due underthe DDA, together
fees and collection costs related to such delinquent payment shall,
to the greatest extent permitted by applicable law, be a lien and charge upon the Property in favor
of the City effective upon Recordingof the Memorandum of DDA,which lien and charge shall be
paramount to the lien and charge of any Mortgage upon or affecting the Propertyand City shall
have the right to foreclose the City Lien with respect to any property so encumbered by such lien.
Upon conveyance of any portion of the Development Parcels to an End User, the City Lien shall
automatically terminate as to such conveyed portions, provided however, that the termination of
such City Lien shall not terminate the obligations of Developer to City with respect to amounts
due and secured by such lien, which shall remain an ongoing obligation of Developer.
9.Acknowledgment and Assumption by Developer. By acceptance of the Quitclaim Deed
and Special Restrictionsand upon recording of the Quitclaim Deed, Special Restrictions and this
Memorandum of DDA,Developerhereby acknowledges and assumes all responsibilities placed
uponDeveloperunder the terms of the DDA.
10.Public Documents. The documents constituting the DDA are public documents and may
be reviewed at the official offices of the City.
11.Interpretation; Notice. This Memorandum of DDA is prepared for recordation and notice
purposes only and in no way modifies the terms, conditions, provisions and covenants of the DDA.
In the event of any inconsistency between terms, conditions, provisionsand covenants of this
Memorandum of DDA and the DDA, the terms, conditions, provisions and covenants of the DDA
shall prevail.
12.Attachments. The Attachments attached to this Memorandum of DDA are hereby
incorporated by this reference into this Memorandum of DDA as though fully set forth in this
Section.
[[1017,1007,1295,1064][12][,I,][Times New Roman]]{signatures [[1258,1007,1541,1064][12][,I,][Times New Roman]]on next page [[1508,1007,1563,1064][12][,I,][Times New Roman]]}
IN WITNESS WHEREOF, the City and Developerhave executed this Memorandum of
DDA as of the Memorandum Effective Date.
CITY OF TUSTIN:
Dated:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:
Amy E. Freilich
DEVELOPER:
By:
Name:______________________
Title: ______________________
By:
Name:______________________
Title: ______________________
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
DEVELOPMENT PARCELS LEGAL DESCRIPTION
[[1115,416,1468,473][12][B,I,][Times New Roman]]{to be attached}
ATTACHMENT 14
PROFIT PARTICIPATION AGREEMENT
PROFIT PARTICIPATION AGREEMENT
THIS
__________, 2018______________________,
a ________________
RECITALS:
A.Pursuant to that certain Tustin Legacy Disposition and Development Agreement
for Disposition Parcel 6Bdated as of ______________, 2018, byand between City and Developer,
as may be further
real property located in the unincorporated area of the City of Tustin, County of Orange, State of
California, more particularly described in Exhibit
B.As additional consideration for the purchase of the Property, and in addition to the
purchase price payable under the DDA, Developer has agreedto pay to City a certain portion of
the profits, if any, that will be received by Developer from the sale of Residences (as defined
below) within the Property in accordance with the terms and conditions set forth below.
AGREEMENT:
NOW, THEREFORE, in consideration of the above and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
1.Definitions. Capitalized terms used in this Agreement and not defined below or
elsewhere in this Agreement shall have the meanings set forth in the DDA.
1.1of this Agreement.
1.2of this Agreement.
1.3of this Agreement.
1.4of this Agreement.
1.5
1.6have the meaning as defined in the DDA.
1.7of this Agreement.
1.8of this Agreement.
1.9of this Agreement.
1.10of this Agreement.
1.11
1.12
Developer in the form of Exhibithereto.
1.13of this Agreement.
1.14of this Agreement.
1.15
Tentative Tract Map No. 18125.
1.16mean the Gross Sale Price less the dollar amount of
any Sale Incentives.
1.17
received by Developer in connection with the sale of Residences to members of the home-buyer
public, including any Premiums and prices for Options and Upgrades.
1.18of this Agreement.
1.19of this Agreement.
1.20
Property which are actually acquired by Developer and upon which the development of certain
Residencesareentitled to be constructed.
1.21Lotsthe Lotsidentified on tentative tract map
No.18125approved by the City as Lots 6 and 7,on which Developer intends to construct model
Residences, and such Lots shall be reflected with the same Lot numbers on any final subdivision
map covering the Property.
1.22of this Agreement.
1.23ng as defined in the DDA.
1.24
special or upgraded amenities or appliances sold by Developer for a Residence. Without limiting
the generality of the foregoing, Options and Upgrades would include room options, appliance
upgrades, cabinetry upgrades, countertop upgrades, finish carpentry upgrades, electrical options,
fireplace options, paint upgrades, any exterior options, and landscaping options and upgrades.
1.25shall mean and refer to the actual costs
incurred by Developer for Options and Upgrades for each Residence.
1.26
with the sale of any Residence within the Property, including, without limitation, any premium for
location or elevation of the Residence, for the view available from the Residence or for any other
feature applicable to the Residence.
1.27of this Agreement.
1.28s development of the Development Parcels
on the Property it acquires, together with any related off-site and on-site improvements and any
Common Area facilities or improvementsas more fully described in the DDA. The Project is
anticipated to include 218Residences.
1.29
the exception of any property re-acquired by City pursuant to the terms and provisions of the DDA.
1.30(s)shall mean eachresidential dwelling unit, including each
row townhome,motor court flat and detached single-familyhome, constructed by Developeron
the Development Parcels.
1.31
Developer to purchasers of the Residences as an inducement to purchase the Residences (such as
free Optionsand Upgrades, Developer payment of purchaser closing costs, allowances and
prepayments of assessments, special taxes and charges).
1.32of this Agreement.
1.33hall mean any permitted assignee of Developer (i.e.,(i)the
New Entity following the Merger, or any Developer Affiliate, as permitted by the DDA, without
City approval, or (ii) an assignee approved by the City pursuant to the DDA) which acquires or
purchases all or any portion of the Development Parcels from Developer.
2.Profit Participation. Developer agrees to pay to City, at the time and in the manner
2.1Calculation of Profit Participation
of the amount by which the total Net Profits exceed 8.50% of the Gross Sales Price received by
Developer.
2.2Net Profits
to be the Gross Revenues
shall be no double-counting of expenses incurred by Developer:
(a)Land Acquisition Cost. The total purchase price and any other
consideration paid to the City under the DDA.
(b)Land Acquisition Transaction Costs. The third-party out-of-pocket
transaction costs directly related to acquiring the Property from City, such as escrow, title
insurance and endorsements, legal fees, easement costs, due diligence costs, market studies,
consultant fees, and costs of third party reports and studies.
(c)Site Improvement and Entitlement Costs. On-site and off-site
improvement costs actually expended for the Project for engineering, consultants, bonds, grading,
wet utilities, dry utilities, street improvements, walls and fences, landscaping, and common area
and recreational facilities, and all costs to obtain, alter or amend any entitlements for the Project
or to record the any tract map or Final Map.
(d)Indirect Construction. Indirect construction costs actually expended
for the Project, including, but not limited to, permits and fees, architecture, engineering,
inspections, construction supervision, construction trailer, security, repair and replacement, and
other on-site costs associated with the construction of the Project.
(e)Direct Construction. The actual costs of construction materials,
equipment rental, labor and subcontractors for the construction of Residences and any Common
Areas.
(f)Cost of Funds. Interest at the rate of sevenand one-tenth percent
(7.1%) per annum on the Invested Cash (defined below) outstanding from time to time,
compounded monthly.
cumulative cash outflows for
all Allowable Expenses regardless of the source of funds less Gross Revenues received. All
calculations shall be made based on accounting for all cash outflows of Allowable Expenses from
the date of payment and all cash inflows of Gross Revenues from the date of receipt of cash. For
this purpose, the cash outflows for Section 2.2(k)of this Agreement(Overhead Allocation) shall
be deemed to occur for each Residence at the start of construction for such Residence and Section
2.2(m)of this Agreement(Warranty Allocation) and Section 2.2(j)of this Agreement(Insurance
Allocation) shall be deemed to occur for each Residence upon the date of transfer of such
Residence to a member of the home-buying public.
(g)Property Taxes. Costs of property taxes and assessments on the
Property acquired by Developer, and all other assessments paid in connection with community
facility districts, landscape maintenance districts and any other public financing districts charged
with respect to the Property.
(h)Model and Marketing Costs. Actual costs of model decorating,
model landscaping, model refurbishing, sales office, utilities and supplies, sales salaries,
maintenance, signage, and marketing and advertising costs which are directly related to the
marketing and sale of the Residences, and all actual internal and external sales commissions paid.
(i)HOA Fees and Costs. Third party costs actually incurred in the
setup of a homeownersassociation with respect to the Property, including association dues,
subsidy payments, and legal fees.
(j)Insurance. An agreed amount equal to one percent (1.0%) of the
Gross Sales Price of each detached single-family home and two percent (2.0%) of the Gross Sales
Price of each row townhome andmotor court flatto compensate Developer for insurance costs
related to the Project.
(k)Overhead Allocation. An agreed amount equal to three and one-half
percent (3.5%) of the Gross Sales Price to compensate Developer for its overhead in connection
with the development of the Project for costs not specifically allocated to the Project such as:
department heads and staff in directing, administering and supervising such development;
employee bonuses (excluding bonuses paid to field superintendents that are directly allocable to
corporate and division offices such as rent, utilities, office supplies, office equipment and other
office related expenses. This allocation is made at the start of construction of each Residence.
(l)Sales Expense. All actual closing costs and charges incurred in
connection with the sale of any portion of the Project, including all escrow fees, title fees, and
transfer taxes.
(m)Warranty Allocation. An agreed amount equal to one percent
(1.0%) of the Gross Sales Price of each Residence to compensate Developer for warranty costs
related to the Project.
(n)Options and Upgrades. All Options and Upgrades Costs.
(o)Design Center. An agreed amount equal to Five Thousand Dollars
($5,000) perResidencefor design center cost.
(p)Legal and Professional. Costs for legal and other professional fees
incurred in connection with the Project.
(q)Other Allocable Costs. Any other actual costs properly and directly
allocable specifically to the development, construction, maintenance, repair and sale of the Project,
and not to any other project or property, but specifically excluding costs of the type described in
clauses (j) and (k) of this Section 2.2 over the allowable percentage.
Allowable Expenses shall be allocated to each specific Residence in accordance with
reasonably be allocated to a specific Residence, they shall be allocated to all of the Residences
pro-rata by dividing such expenses equally by the total number of Residences.
2.3Exclusions from Allowable Expenses. Allowable Expenses shall
specifically exclude any and all costs of Developer and any Transferee associated with the sale,
assignment or transfer of the Property or any portion thereof by Developer to any Transferee and
any and all costs of any Transferee in connection with due diligence, entitlement or conveyance,
including without limitation, any consideration paid by any Transferee to acquire the Property or
any portion thereof. For purposes of clarity, it is the intent of the Parties that there shall be no
adjustment to land basis or increase in Allowable Expenses as the result of any sale or transfer to
a Transferee
of the sale or assignment of any Development Parcelsor other portion of the Property to any
Transferee. The proceeds of any sale, assignment or Transfer of the Property or any portion thereof
by Developer to any Transferee shall be excluded from the calculation of Gross Sales Price.
3.Payment of Profit Participation.
3.1Interim Payment. Within thirty (30) days following theexecution of a
contract forsale of the 200th Residence within the Project, Developer shall complete and submit
to City an interim Developer Profitability Report setting forth the calculation of Profit Participation
as of the date of such report, including all Gross Revenues, Sales Incentives and Allowable
Expenses by category and the Profit Participation with respect to the 200Residences closed or
subject to a sales contract (which calculation shall be based upon estimated Allowable Expenses
throughtheestimated date of the projected closing of the last of the 200 Residencesand Gross
Revenues with respect to any sales which have not yet closed). Concurrently with submission of
such interim report, Developer shall provide (a)an interim payment of Profit Participation
200
Residencesclosed or subject to a sales contract, if any;and (b)
amount equal to 25% of the Profit Participation based upon the 200Residences closed or subject
to a sales contract
Participation, if any, pursuant to Section 3.2 and 3.3of this Agreement.The interim Developer
Profitability Report shall calculate the Profit Participation based upon the information available at
such time, and may include estimated reserves for any undetermined or future Allowable
Expenses.
3.2Final Developer Profitability Report. Within thirty (30) days following the
closing of the sale of the 218
extent that the Developer determines to develop fewer than 218Residences, the Final Sale shall
consist of the close of escrow for the last Residence to be developed at the Project), Developer
shall complete and submit to City a Developer Profitability Report for the entire Project. Such
Developer Profitability Report shall calculate the Profit Participation for the entire Project based
upon the information available at such time, and shall include estimated reserves for any
undetermined or future Allowable Expenses. Concurrently with such Developer Profitability
Report, Developer shall pay to the City the Profit Participation calculated in such Developer
Profitability Report, less the amount of the Interim Payment made to City. However, if the amount
of the Interim Payment made to City exceeds the aggregate amount of Profit Participation for all
of the Residences, then City will pay to Developer the difference within sixty (60) days after
Developer delivers the Building Profitability Report pursuant to this Section 3.2. Immediately
following Ci
remaining Profit Participation, City shall release the Bond. In the event that the Final Sale has not
occurred by the date which is two (2) years following the date ofthe Interim Payment, Developer
shall prepare a Developer Profitability Report with respect to all of the Residences closed or
subject to sales contracts through the date thereof and shall pay the City the amount of ninety
percent (90%) of the Profit Participation calculated with respect to all of the Residences soldand
closed
of
the Profit Participation shall be paid to the City by calculating the total Profit Participation for the
Project less the amount of the Interim Payment and the Second Interim Payment made to the City.
3.3Final Accounting. By the later of the date that istwelve (12) months after
Developer shall perform a final accounting and true-up of the Profit Participation reconciling any
additional items of revenue or Allowable Expenses which were not included in the Developer
shows that Developer has overpaid the Profit Participation for the Project, City shall refund such
overpayment within sixty (60) days of receiving notice thereof, and if Developer has under paid
the Profit Participation for the Project, Developer shall deliver such additional Profit Participation
to City within sixty (60) days of completion of the accounting.
3.4Financial Records and Statements of Developer. Developer shall keep and
maintain, or cause to be kept and maintained, accurate financial books and records with respect to
the development of the Property as necessary to calculate the Profit Participation. If Developer is
accounting principles and practices and if not, shall be kept in accordance with GAAP and FASB.
These financial books and records shallinclude all supporting documentation relative to Gross
Revenues and Allowable Expenses, and shall be maintained by Developer for three (3) years after
the Final Sale. Developer shall not be required to keep paper copies of invoices, charges and
evidence of Allowable Expenses incurred, or payments related thereto, but shall only be required
to retain evidence of such records as are customarily maintained in accordance with its normal
accounting records in the ordinary course of business. Developer shall make all such books and
copying shall be made at such time and place as the Developer may reasonably designate provided
that the designated place must be at an office located in Orange County, California. Developer
shall cooperate fully with City in making the inspection.
4.Audit.
4.1Generally. At the option of City and, e
cost, exercised by written notice to Developer delivered by the City at any time following the Final
Developer Profitability
be audited by an independent third-party certified public accountant licensed in the State of
California selected by City (but not one that is compensated based upon the results of the audit or
a percentage of collections) for the purpose of verifying the calculation of Net Profit, Allowable
Costs, Gross Sales Amount, Gross Revenues, Sales Incentives, Profit Participation, and other
factors used to determine Profit Participation, due C
within thirty (30) days after notice of Audit, all of the books and records of Developer for the
Project which such auditor deems necessary or desirable for the purpose of performing the Audit.
Subject to the resolution of any dispute regarding the Audit, if it is properly determined by the
Audit that there was a deficiency in the amount of Profit Participation paidto the City hereunder,
or any overpayment of Profit Participation to the City by Developer, the Developer shall pay to
City the amount of the underpayment, or City shall pay to Developer the amount of the
overpayment, as applicable, within thirty (30) days after receipt of the results of the Audit with
interest thereon at 8.0%. If the Audit properly determines that the amount of the Profit
Participation was underpaid by more than the greater of (i) three percent (3%) of the aggregate
Profit Participation for the Project, or (ii) One Hundred Thousand Dollars ($100,000.00), then
Developer shall pay the actual costs and expenses incurred by the City to the third party auditor in
connection with the performance of the Audit. Any dispute regarding the Audit orthe result
thereof shall be resolved pursuant to Section 7.8.
5.Default.
5.1Default. In the event that any Party hereto believes the other Party is in
breach of its obligations under this Agreement, such Party shall deliver written notice of such
alleged breach and the actions necessary to cure such breach to the other Party. Such Party shall
be in default under this Agreement if it has not cured the breach within thirty (30) days from the
receipt of such notice, or in the event that the breach is not reasonably susceptible or cure within
such thirty (30) day period, then if it has not commenced the cure of such breach within the thirty
(30) day period and diligently prosecuted the cure to completion, but in no event to exceed ninety
.
5.2Remedies. In the event of a Default by either Party hereunder, either Party
shall have all rights and remedies available to it at law or in equity. To the maximum extent
permitted by law, all rights, options and remedies contained in this Agreement, or under law, shall
be cumulative, and no one remedy shall be exclusive of any other remedy. Notwithstanding the
foregoing, each Party hereby waives the right to recover consequential, special or punitive
damages.
5.3Recordation of Deed of Trust. Concurrently with the acquisition of the
Development Parcels by Developer, Developer shall execute, acknowledge and permit to be
recorded against the Model Lots a first lien Deed of Trust in the form attached hereto as
Exhibitt of the Profit Participation. City shall execute,
acknowledge and deliver to Developer a full reconveyance of the Deed of Trust and such other
documentation as may be reasonably required in order to release the Deed of Trust as an
encumbrance upon the Model Lots concurrent with Developer making the Interim Payment and
delivering the Bond to City pursuant to Section 3.1.
6.Miscellaneous.
6.1Notices. All notices, demands, consents, requests and other
communications required or permitted to be given under thisAgreement shall be in writing and
shall be deemed conclusively to have been duly given:(a) when hand delivered to the other Party;
(b) three (3) Business Days after such notice has been sent by U.S. Postal Service via certified
mail, return receipt requested, postage prepaid, and addressed to the other Party as set forth below;
(c) the next Business Day after such notice has been deposited with an overnight delivery service
reasonably approved by the Parties (Federal Express, Overnite Express, United Parcel Service and
U.S. Postal Service are deemed approved by the Parties), postage prepaid, addressed to the Party
to whom notice is being sent as set forth below with next-business-day delivery guaranteed,
provided that the sending Party receives a confirmation of delivery from the delivery service
provider; or (d) when transmitted if sent by facsimile transmission or email to the fax number or
email address set forth below; provided that notices given by facsimile or email shall not be
effective unless either (i) a duplicate copy of such notice is promptly sent by any method permitted
under this Section other than by facsimile or email (provided that the recipient Party need not
receive such duplicate copy prior to any deadline set forth herein); or (ii) the receiving Party
delivers a written confirmation of receipt for such notice either by facsimile, email or any other
method permitted under this Section. Any notice given by facsimile or email shall be deemed
received on the next Business Day if such notice
on a non-Business Day. Unless otherwise provided in writing, all notices hereunder shall be
addressed as follows:
If to City,City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: Jeffrey C. Parker, City Manager
Telephone: 714-573-3010
Facsimile: 714-834-1602
Email: jparker@tustinca.org
with a copy to:Woodruff Spradlin & Smart, APC
555 Anton Boulevard, #1200
Costa Mesa, CA 92626
Attn: David Kendig, Esq., City Attorney
Telephone: 714-415-1083
Facsimile: 714-415-1183
Email:dkendig@wss-law.com
with a copy to:Armbruster Goldsmith & Delvac LLP
Attn: Amy E. Freilich, Esq., Special Counsel
12100 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90025
Fax: (310) 209-8801
Email: amy@agd-landuse.com
[[1050,1995,1100,2052][12][B,I,][Times New Roman]]{ [[1068,1995,1264,2052][12][B,I,][Times New Roman]]TO BE [[1225,1995,1393,2052][12][B,I,][Times New Roman]]INSER [[1377,1995,1491,2052][12][B,I,][T
imes New Roman]]TED [[1470,1995,1527,2052][12][B,I,][Times New Roman]]}
If to Developer,
with a copy to:Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, California 92626
Attention: F. Kevin Brazil, Esq.
Telephone No.: 714-641-3462
Facsimile: 714-546-9035
Email: kbrazil@rutan.com
Either Party may change the address to which notices are to be given to it by giving notice of such
change of address in the manner set forth above for giving notice.
6.2Interpretation. This Agreement shall be construed as if prepared by both
Parties. Accordingly, any rule of law (including California Civil Code Section 1654) or legal
decision that would require interpretation of any ambiguities in this Agreement against the Party
that has drafted it is not applicable and is waived.
6.3Severability. If any provision of this Agreement, or the application thereof,
shall for any reason and to any extent be invalid or unenforceable, the remainder of this Agreement
and application of such provision to other circumstances, shall be interpreted so as best to
reasonably effect the intent of the Parties hereto.
6.4Performance of Acts on Business Days. Unless specifically stated to the
contrary, all references to days herein shall be deemed to refer to calendar days. In the event that
the final date for payment of any amount or performance of any act hereunder falls on a Saturday,
Sunday or holiday, such payment may be made or act performed on the next succeeding business
day.
6.5. If any Party to this Agreement institutes any action, suit,
proceeding, counterclaim or other proceeding for any relief against another Party, declaratory or
with respect to any inaccuracies or material omissions in connection with any of the covenants,
representations, warranties or obligations on the part of the other Party to this Agreement, then the
Prevailing Party in such Action shall be entitled to have and recover of and from the other Party
all costs and expense
butin no event more than $200 per hourwith such hourly rate being used to calculate the amount
and
(b) costs actually incurred in bringing and prosecuting such Action and/or enforcing any judgment,
order, ruling or award (collectively, a
have accrued on the commencement of such Action and shall be paid whether or not such Action
is prosecuted to a Decision. Any Decision entered in any final judgment shall contain a specific
provision providing for the recovery of all costs and expenses of suit, including reasonable
and executing such judgment. For the purposes of this paragraph, Costs shall include in addition
costs, expenses and expert fees and costs incurred in the following: post judgment motions and
collection actions, contempt proceedings, garnishment, levy, debtor and third party examinations,
the meaning of this Section 6.5 includes a Party who agrees to dismiss an Action in consideration
allegedly breached, or obtains substantially the relief sought by such Party.
6.6Entire Agreement; Amendments. This Agreement, together with the other
written agreements referred to herein, is intended by the Parties to be the final expression of their
agreement with respect to the subject matter hereof, and is intended as the complete and exclusive
statement of the terms of the agreement between the Parties. As such, this Agreement supersedes
any prior understandings between the Parties, whether oral or written. Any amendments to this
Agreement shall be in writing and shall be signed by all Parties hereto.
6.7Governing Law. This Agreement and the documents in the forms attached
as exhibits hereto shall be governed by and construed under the internal laws of the State of
California.
6.8Jurisdiction. The Parties hereto agree that the State Courts located in
diction over any Action and the
Parties hereby consent to the exercise of personal jurisdiction over them by the Court for purposes
of resolving the Action. Any Party may file a complaint with the Court, and in no other court.
6.9No Waiver. No delay on the part of any Party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any Party hereto of any right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder, nor shall any single or partial exercise of any right, power or
privilege hereunder, preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.
6.10Assignment. In the event that the Property (or that portion thereof
remaining unsold to members of the home-buying public) is conveyed by Developer toany
successor owner prior to the Final Sale, Developer shall assign its right and obligations under this
Agreement to such successor ownerof the Project;provided, however, upon such assignment of
asuccessor ownerof the Project, Developer shall
only be released from the obligations arising under this Agreement accruing after such assignment
to the extent that Developer is released from its obligation under the DDA pursuant to the terms
of Section 2.2 of theOriginalDDA.Nothing in this Agreement shall modify the obligation of
Developer to obtain the consent of the City to any conveyance, transfer or assignment to the extent
required by the DDA.For avoidance of doubt, it is the intent of the Parties that theProfit
Participation be calculated by taking into account eachinitial sale, and only such initial sale and
no subsequent sale,of a Residence within the limits of the Property to a member of the home-
buying public which occurs prior to or is the Final Sale,regardless of whether such Residence is
sold by Developer or any Transferee ofall or any portion of the Property or the Project.Further,
and notwithstanding any other provision of this Agreement to the contrary, with respect to any
Transfer occurring following the Close of Escrow (as defined in the DDA), the Transferee shall
assume the obligation to pay all sums due under this Agreementnot yet paidand accordingly shall
include in the calculation of Gross Sales Price all consideration received by any Developer or any
Transferee for sale of Residences to members of the home-buyer public, including any Premiums
and prices forOptions and Upgrades, whether such consideration was received by Developer or
any Transferee prior to orfollowing the date of the Transfer.
6.11Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, representatives, successors and permitted
assigns.
6.12Headings; Cross-References; Exhibits. The headings and captions used in
this Agreement are for convenience and ease of reference only and shall not be used to construe,
interpret, expandor limit the terms of this Agreement.
6.13No Partnership. No agency, partnership, joint venture or other relationship
is intended hereby, and neither Party shall be deemed the agent, servant, employee, partner or joint
venturer of the other Party. City and Developer shall not, in any way or for any reason be deemed
to have become a partner of the other in the conduct of its business or otherwise, or a joint venturer.
In addition, no merger or joint enterprise between Developer and City shall be deemed to exist by
virtue of this Agreement.
[[1017,466,1067,523][12][,I,][Times New Roman]]{ [[1037,466,1541,523][12][,I,][Times New Roman]]signatures on next page [[1508,466,1563,523][12][,I,][Times New Roman]]}
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the day and year first above written.
CITY:DEVELOPER:
CITY OF TUSTIN__________________________,
a __________________________
By:
By:
Name: Jeffrey C. Parker
Name:
Title: City Manager
Title:
By:
Name:
Title:
APPROVED AS TO FORM
By:
David Kendig, City Attorney
Armbruster Goldsmith & Delvac LLP
Special Tustin Counsel
By:
Amy E. Freilich
LEGAL DESCRIPTION OF PROPERTY
[[708,507,878,564][12][B,I,][Times New Roman]]{insert [[855,507,991,564][12][B,I,][Times New Roman]]legal [[968,507,1667,564][12][B,I,][Times New Roman]]description of Property and add
[[1621,507,1875,564][12][B,I,][Times New Roman]]following}
But excepting therefrom the matters set forth in Section 2 of that certain Quitclaim Deed For
Disposition Parcels 6Band Covenants, Conditions and Restrictions, Including Environmental
Restriction Pursuant to Civil Code Section 1472 made by the City in favor of Developer, dated as
of_______________________, 2018and recorded in the official records of Orange County
California on ________________ as Instrument No. ______________________________.
DEVELOPER PROFITABILITY REPORT
Date:
Developer:
Project:
Phases:
This Phase This Phase Cumulative Cumulative
Per UnitTotalPer UnitTotal
Number of Residences
Base Square Footage
Base Gross Sales Price
Lot Premiums
Option & Upgrades
Incentives
Total Sales Price
Land Acquisition
Transaction Costs
Site Improvement
Common Area & Fencing
Indirect Construction
Direct Construction
Overhead Allocation @3.5.%
Cost of Funds Allocation
Property Taxes & HOA
Legal
Models & Marketing
Sales Expense
Options & Upgrades
Warranty Allocation @ 1%
Insurance @ 1%SFR; @ 2%
townhome/flat
Design Center @ $5,000 per
Residence
Other Allocable Costs
Total Development Costs
Net Profit
Developer Profit @ 8.50%
Excess Profit
City Participation @ 50%
City Participation Paid
City Participation Payable
DEED OF TRUST
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
SPACE ABOVE THIS LINE FOR
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST
is made as of ______________, 2018, between
_________________________________,herein called TRUSTOR, whose address is
____________________________________, FIRST AMERICAN TITLE INSURANCE
COMPANY,herein called TRUSTEE, and the CITY OF TUSTIN, herein called BENEFICIARY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that certain property
in the County of Orange, State of California, more particularly described on attached
subject, however, to the right, power and authority hereinafter given to and conferred upon
Beneficiary to collect and apply such rents, issues and profits for the purpose of securing
(1)
the terms of that certain unrecorded Profit Participation Agreement dated as of even date herewith
To protect the security of this Deed of Trust, and with respect to the Property, Trustor expressly
makes each and all of the agreements, and adopts and agrees to perform and be boundby each and
all of the terms and provisions set forth in subdivision A, and it is mutually agreed that each and
all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in
Orange County August 17, 1964, and in all other counties August 18, 1964, in the book and at the
page of official records in the office of the county recorder of the county where the Property is
COUNTYBOOKPAGECOUNTYBOOKPAGECOUNTYBOOKPAGECOUNTYBOOKPAGE
Alameda1288556Kings858713Placer1028379Sierra38187
Alpine3130-31Lake437110Plumas1661307Siskiyou506762
Amador133438Lassen192367Riverside3778347Solano1287621
Butte1330513Los AngelesT-3878874Sacramento5039124Sonoma2067427
Calaveras185338Madera911136San Benito300405Stanislaus197056
Colusa323391Marin1849122San Bernardino6213768Sutter655585
Contra Costa46841Mariposa90453San FranciscoA-804596Tehama457183
Del Norte101549Mendocino66799San Joaquin2855283Trinity108595
El Dorado704635Merced1660753San Luis Obispo1311137Tulare2530108
Fresno5052623Modoc19193San Mateo4778175Tuolumne177160
Glenn46976Mono69302Santa Barbara2065881Ventura2607237
Humboldt80183Monterey357239Santa Clara6626664Yolo76916
Imperial1189701Napa704742Santa Cruz1638607Yuba398693
Inyo165672Nevada36394Shasta800633
Kern3756690Orange718218San DiegoSERIES 5 Book 1964, Page 149774
shall inure to and bind the parties hereto, with respect to the Property. Said agreements, terms and
provisions contained in said subdivisions A and B (identical in all counties) are by the within
reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as
fully as if set forth at length herein, and Beneficiary may charge for a statement regarding the
obligation secured hereby, provided the charge therefor does not exceed the maximum allowed by
law.
Trustor and Beneficiary have previously entered into a disposition and development agreement as
further described by that certain Memorandum of Tustin Legacy Disposition and Development
Agreement for Disposition Parcel6B, recorded in the Official Records immediately prior to this
intent that, pursuant to Section 5.3 of the PPA, upon approval by the City Council of the City of
18125covering the entirety of the
two (2) particular lots
encompassing portions of the Property upon which model homes are proposedto be constructed
on that certain tentative tract map No. 18125
approved by the City Council on_______________, 20__and (ii) this Deed of Trust is being
recorded against the entirety of the Property pending the recordation of the Final Map. Promptly
following the recordation of the Final Map, Beneficiary agrees to execute a Request for Partial
Reconveyance and cause Trustee to record a Partial Reconveyance which will release the Property,
other than theReservedLots, from the lien of this Deed of Trust.
Beneficiary agrees to subordinate this Deed of Trust to documents and instruments related to
ing, but not limited to, the Final Map, easements, dedications,
and the covenants, conditions and restrictions for the development of the Property recorded in
CC&Rs
obligation tosubordinate this Deed of Trust to any monetary liens (other than those generally
provided in the CC&Rs). Additionally, Beneficiary agrees to execute documents and instruments
in form and substance reasonably acceptable to Beneficiary, Trustor and Trusteerequired to
subordinate this Deed of Trust to the Development Documents. In the event this Deed of Trust is
to be subordinated in accordance with this paragraph, Trustor shall deliver a proposed form of
subordination to Beneficiary. Beneficiary shall have ten (10) business days following
to review, provide comments on and approve or disapprove the proposed form of subordination as
further described below. If Beneficiary approves the proposed form of subordination, Beneficiary
shall execute and return the subordination to Trustor prior to the expiration of the Subordination
Review Period. If the Beneficiary disapproves the proposed form of subordination, Beneficiary
shall provide Trustor with specific comments to the proposed form of subordination and/or reasons
why Beneficiary disapproves the proposed form of subordination prior to the expiration of the
Subordination Review Period. Thereafter, Beneficiary andTrustor shall promptly meet and confer
and use diligent good faith efforts to agree upon a form of subordination and Beneficiary will
promptly execute the agreed upon form of subordination. The undersigned Trustor, requests that a
copy of any notice of default and any notice of sale hereunder be mailed to him at his address
hereinbefore set forth.
Signature of Trustor
___________________________,
a _________________________
By:
Name:
Title:
By:
Name:
Title:
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) onthe instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
To Deed of Trust
DESCRIPTION OF PROPERTY
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each
county in California as stated in the foregoing Deed of Trust and incorporated by reference in said
Deed of Trust as being a part thereof as if set forth at length therein.
A.To protect the securityof this Deed of Trust, Trustor agrees:
1) To keep said property in good condition and repair, not to remove or demolish any
building thereon; to complete or restore promptly and in a good and workmanlike manner any
building which may be constructed, damaged or destroyed thereon and to pay when due all claims
for labor performed and materials furnished therefor, to comply with all laws affecting said
property or requiring any alterations or improvements to be made thereon; not to commit or permit
waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to
cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use
of said property may be reasonably necessary, the specific enumerations herein not excluding the
general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with
loss payable to Beneficiary. The amount collected under any fire or other insurance policy may
be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary
may determine, or at the option of Beneficiary the entire amount so collected or any part thereof
may be released to Trustor. Such application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof
or the rights or powers of Beneficiary or Trustee; and to pay all costs andexpenses, including cost
which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this
Deed.
4) To pay: at least ten days before delinquency all taxes and assessments affecting said
property, including assessments on appurtenant water stock; when due, all encumbrances, charges
and liens, with interest, on said property or any part thereof, which appear to be prior or superior
hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then
Beneficiary of Trustee, but without obligation so to do and without notice to or demand upon
Trustor and without releasing Trustor from any obligation hereof, may: make or do the same is
such manner and to such extent as either may deem necessary to protect the security hereof,
Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in
and defend any action or proceeding purporting to affect the security hereof or the rights or powers
of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien
which in the judgment of either appears to be prior or superior hereto; and, in exercising any such
powers, pay necessary expenses, employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or
Trustee, with interest from date of expenditure at the amount allowed by law in effect at the date
hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the
obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum
allowed by law atthe time when said statement is demanded.
B.It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said
property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or
release such moneys received by him in the same manner and with the same effect as above
provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary
does not waive his right either to require prompt payment when due of all other sums so secured
or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon
written request of Beneficiary and presentation of this Deed and said note for endorsement, and
without affecting the personal liability of any person for payment of the indebtedness secured
hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat
thereof; join in granting any easement thereon, or join in any extension agreement or any
agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been
paid, and upon surrender of this Deed and said note to Trustee for cancellation and retention or
other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee
shall reconvey, without warranty, the property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the
right, power and authority, during the continuance of these Trusts, to collect the rents, issues and
profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment
of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect
and retain such rents, issues and profits as they become due and payable. Upon any such default,
Beneficiary may at any time without notice, either in person, by agent, orbe a receiver to be
appointed by a court, and without regard to the adequacy of any security for the indebtedness
hereby secured, enter upon and take possession of said property or any part thereof, in his own
name sue for or otherwise collect such rents,issues, and profits, including those past due and
unpaid, and apply the same, less costs and expenses of operation and collection, including
may determine. The entering upon and taking possession of said property, the collecting of such
rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default
or notice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in the
performance of any agreement hereunder, Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written declaration of default and demand
for sale and of written notice of default and of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this
Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of
said notice of default, and notice of sale having been given as then required by law, Trustee,
without demand on Trustor, shall sell said property at the time and place fixed by it in said notice
of sale, either as a whole or in separate parcels, and in such order as it may determine, at public
auction to the highest bidder for cash in lawful money of the United States, payable at time of sale.
Trustee may postpone sale of all or any portion of said property by public announcement at such
time and place of sale, and from time to time thereafter may postpone such sale by public
announcement at the time fixed by the preceding postponement. Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any covenant or warranty, express
or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined,
may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of
evidence of title in connection with sale, Trusteeshall apply the proceeds of sale to payment of:
all sums expended under the terms hereof, not then repaid, with accrued interest at the amount
allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder,
if any, to the person or persons legally entitled thereto.
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may
from time to time, by instrument in writing, substitute a successor or successors to any Trustee
named herein or acting hereunder, which instrument, executed by the Beneficiary and duly
acknowledged and recorded in the office of the recorder of the county or counties where said
property is situated shall be conclusive proof of proper substitution of such successor Trustee or
Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title,
estate, rights, powers and duties. Said instrument must contain the name of the original Trustor,
Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and the name
and address of the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their
heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary
shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender
includes the feminine and/or neuter, and the singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is
made a public record as provided by law. Trustee is not obligated to notify any party hereto of
pending sale under any other Deed of Trust or of any action or proceeding in which Trustor,
Beneficiary or Trustee shall be a party unless brought by Trustee.
ATTACHMENT 15
CERTIFICATE OF COMPLIANCE
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT
FROM RECORDING FEES PER
GOVERNMENT CODE 6103 AND 27383.
Recording requested by and
When recorded mail to:
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
SPACE ABOVE THIS LINE FOR
CERTIFICATE OF COMPLIANCE
Certificateof Compliance
ThisCERTIFICATEis made as of
_____________, 20__ by the CITY OF TUSTIN, a municipal corporation of the State of
City[[1470,1702,2290,1759][12][B,I,][Times New Roman]]insert name of Developer under DDA
____________________{
[[300,1759,747,1816][12][B,I,][Times New Roman]]at time of issuance, [[709,1759,760,1816][12][B,I,][Times New Roman]]S [[738,1759,1501,1816][12][B,I,][Times New Roman]]tate of formation
and type of entity} [[1520,1759,1689,1816][12][B,,][Times New Roman]]Develo [[1665,1759,1765,1816][12][B,,][Times New Roman]]per
following matters:
[[872,1924,1530,1981][12][B,I,][Times New Roman]][{if no Assignment or Merger: [[1490,1924,1547,1981][12][B,I,][Times New Roman]]} [[1743,1924,1797,1981][12][B,I,][Times New Roman]]/
[[1774,1924,1824,1981][12][B,I,][Times New Roman]]{ [[1791,1924,2183,1981][12][B,I,][Times New Roman]]if Assignment or
A.The City and [[1525,1925,1766,1982][12][,I,][Times New Roman]]Developer
[[296,1983,516,2040][12][,I,][Times New Roman]]Merger:} [[499,1983,1074,2040][12][,I,][Times New Roman]]CalAtlantic Group, Inc., a [[1034,1983,1548,2040][12][,I,][Times New Roman]]Delaware
corporation, [[1504,1983,2268,2040][12][,I,][Times New Roman]]predecessor in interest to Developer
[[344,2039,569,2096][12][B,I,][Times New Roman]]Original [[531,2039,770,2096][12][B,I,][Times New Roman]]Developer [[792,2039,847,2096][12][B,I,][Times New Roman]]]
entered into that certain Tustin Legacy Disposition and Development
[[1821,2097,1888,2154][12][B,I,][Times New Roman]][{ [[1856,2097,2289,2154][12][B,I,][Times New Roman]]if amendments are
Agreement ForDisposition Parcel 6B,dated as of _______________, 2018
[[1459,2155,1904,2212][12][B,I,][Times New Roman]]insert any amendme [[1876,2155,1926,2212][12][B,I,][Times New Roman]]n [[1904,2155,2156,2212][12][B,I,][Times New Roman]]ts to DDA}
[[300,2213,572,2270][12][B,I,][Times New Roman]](collectively [[850,2213,2153,2270][12][B,I,][Times New Roman]][{(if no amendments are made to DDA, insert the following:}
[[300,2269,408,2326][12][B,I,][Times New Roman]](the [[560,2269,615,2326][12][B,I,][Times New Roman]]] [[581,2269,632,2326][12][B,I,][Times New Roman]].
The DDA is evidenced by that certain Memorandum of Disposition and
Development Agreement (Parcel 6B), dated as of ___________, 2018, and recorded in the Office
Official Records
of the
[[663,2442,1125,2499][12][B,I,][Times New Roman]]{insert any amendme [[1097,2442,1147,2499][12][B,I,][Times New Roman]]n [[1125,2442,1260,2499][12][B,I,][Times New Roman]]ts to [[1220,2442,1621,2499
][12][B,I,][Times New Roman]]Memorandum of [[1582,2442,1738,2499][12][B,I,][Times New Roman]]DDA} [[1831,2442,2243,2499][12][B,,][Times New Roman]]Memorandum of
______________
DDA
with respect to certain real property legally described on Exhibitattached hereto and
Development Parcels
incorporated herein by this reference (the
terms not otherwise defined herein shall have the meanings assigned to them in the DDA.
B. Pursuant to the DDA, the Developer agreed to develop and construct certain
Improvements comprising the Project on the Development Parcels.
[[1167,299,1427,356][12][B,I,][Times New Roman]]{Original}
C.Pursuant to Section9of the DDA, the City agreed to furnish to the
Developer, upon request therefor by the Developer, aCertificateofComplianceinrecordable
form upon satisfaction of the Conditions Precedent to issuance thereof set forth in Section9.3of
[[374,472,634,529][12][B,I,][Times New Roman]]{Original}
theDDA (including, without limitation, Completion of all Improvements for the
Project in accordance with the terms and conditions of the DDA).
D.The City has determined that the Developer has satisfied the Conditions Precedent
[[895,695,1155,752][12][B,I,][Times New Roman]]{Original}
set forth in Section9.3of the Certificateof
Compliancewith respect totheDevelopment Parcelsand the Project.
NOW, THEREFORE, the City certifies as follows:
1.ThisCertificateof Compliance covers and applies to theDevelopment Parcels
and the entirety of the Improvements and the Project.
2.ThisCertificateof Compliance shall be deemed conclusive evidence of the Cit
determination that the Developer has satisfactorily Completed all construction and development
withrespect to the Improvements comprising the Project and has satisfied all Conditions
Precedent set forth in Section9.3of the DDA for issuance of this Certificateof Compliance.
[[1121,1412,1881,1469][12][B,I,][Times New Roman]]{218 or lesser number as applicable [[1860,1412,2154,1469][12][B,I,][Times New Roman]]pursuant to
3.Developer has completed
[[299,1470,926,1527][12][B,I,][Times New Roman]]Section 4.1(a)(iii) of the DDA [[903,1470,960,1527][12][B,I,][Times New Roman]]}
residential units on the Developer Parcels, comprising the
number of units described on the Recorded Condominium Plan and actually constructed by
Developer prior to issuance of thisCertificate of Compliance.The City retains all excess
development rights remaining within Specific Plan Neighborhood G, Planning Area 15 after
[[790,1700,1350,1757][12][B,I,][Times New Roman]]{218 or lesser number as [[1312,1700,1551,1757][12][B,I,][Times New Roman]]applicable [[1530,1700,2251,1757][12][B,I,][Times New Roman]]pursuant
to Section 4.1(a)(iii) of
deducting the foregoing
[[300,1757,498,1814][12][B,I,][Times New Roman]]the DDA [[475,1757,532,1814][12][B,I,][Times New Roman]]}
units, and, except to the extent any of such rights were conveyed by the City to third
parties prior to the Effective Date, the City shall retain all residential units and all development
[[1997,1872,2196,1929][12][B,I,][Times New Roman]]{218 or
rights associated with Specific Plan Neighborhood G, Planning Area 15 in excess of
[[300,1930,899,1987][12][B,I,][Times New Roman]]lesser number as applicable [[878,1930,1760,1987][12][B,I,][Times New Roman]]pursuant to Section 4.1(a)(iii) of the DDA [[1736,1930,1793,1987][12][B,I,
][Times New Roman]]}
units, and the units and
development rights retained by the City shall be freely transferable by the City throughout Tustin
Legacy.
4.After the Recording of thisCertificate of Complianceinthe Official Records,the
DDA shall terminate and,except as set forth below, any Person then owning or thereafter
purchasing, leasing, or otherwise acquiring any interestin the Development Parcels shall not
(because of such ownership, purchase, lease or acquisition) incur any obligation or liability under
the DDAwith respect to such Improvements, except that the followingmattersshall survive the
termination of the DDA each in accordance with theirterms:
(a)The Quitclaim Deed dated __________, 20__ and recorded on
____________, 20__ in the Official Records as Instrument No. ______________ shall remain in
effect in perpetuity,
(b)The Profit Participation Agreement, the Special Restrictions,theCC&Rs
and theLandscape Maintenance Agreement shall each remain in effect for the termsspecified
therein;and
(c)The following provisions of the DDA shall expressly survive the
termination of the DDAand shall remain in effect for the period set forth below:
(i)Theprovisions of Sections4.5.2and8.14of the DDA, including
the releasesset forth therein, as and to the extent set forth in the Quitclaim Deed shall survive
in perpetuity, shall run with the land and shall be binding upon Developer, its successors and
assigns and its Successor Owners, as well asHomebuyers and other End Users;
(ii)The provisions of Section 11.1.4of the DDAshall survive until the
expiration of the time period for provision of the environmental insurance policy described
thereby; and the obligation to provide such insurance policy shall remain in effect for a
period of ten (10) years from Close of Escrow and shall (A) continue to run with the land
owned by Developer,its successors and assigns and Successor Owners, and not then
conveyed to any Homebuyer or other End User, and (B)bindDeveloper,its successors and
assigns and Successor Owners and each and every prior Developer not released by the City
pursuant to Section 2.2.3(c)of the DDA, provided that upon sale or transfer to any
Homebuyer or any other End User, such obligation shall not run with the land or survive with
respect to or bind any such Homebuyer or End User or any of their respective successors and
assigns;
(iii)The indemnities set forth in Sections 5.5, 8.12(e), 8.15, 8.16, 10.1,
10.2 and 17.12.1of the DDAshall remain in effect as and to the extent set forth in
Section10.3of the DDAand shall bind the Persons bound as set forth therein; provided that
upon sale or transfer to any Homebuyer or any other End User, such obligation shall not run
with the land or survive with respect to or bind any such Homebuyer or End User or any of
their respective successors and assigns;
(iv)Any and all obligations contained in the Federal Deedsshall
survive in perpetuity to the extent set forth therein, unless such obligations are released by
the Federal Government;
(v)Neither Developer, its successors and assigns (but excluding any
End Users) or any Successor Owner shall modify or terminate any prepaid environmental
insurance policy in effect as of the issuance of the Certificate of Compliance;and
(vi)Theprovisions of Section11.1.1of the DDA requiring liability
insurance to be maintained infull force and effect until issuance of the Certificate of
Compliance and so long thereafter as necessary to cover any claims of damages suffered by
persons or property prior to issuance of the Certificate of Compliance, resulting from any
acts or omissio
consultants or other related parties, and shall (A) continue to run with the land owned by
Developer, its successors and assigns (excluding any End Users) and Successor Owners and
notthen conveyed to any Homebuyer or other End User and (B) bind Developer and its
successors and assigns (excluding any End Users) and Successor Owners and each and every
prior Developer not released by the City pursuant to Section2.2.3(c)of the DDA, provided
that upon sale or transfer to any Homebuyer or any other End User, such obligation shall not
run with the land or survive with respect to or bind any such Homebuyer or any other End
User or any of their respective successors and assigns.
Except as set forth above with respect to Homebuyers and End Users andtheir
respective successors and assigns,this Certificate shall be binding upon Developer, its
successors and assignsand Successor Owners and each andevery prior Developer(unless
released by the City pursuant to Section 2.2.3(c)) and Successor Owner thereof, the
Development Parcels and the Improvements for the term set forth above,and each such party
shall be jointly and severally liable under such provisions with respect to the entirety of the
Project, the Development Parcels and the Improvementsfor the term set forth above, but
except as set forth inSections 4(a) and 4(c)(i)of this Certificate of Compliance orin the
Quitclaim Deed, shall not be binding on any Homebuyer or other End User.
5.Issuance of the Certificate of Compliance shall not waive any rights or claimsthat
the City may have against any Personfor latent or patent defects in design, construction or
similar matters under any applicable law, nor shall it be evidence of satisfaction of any of
third parties who arenot a party to the DDA.
6.ThisCertificateof Compliance is not a Notice of Completion as referred to in
California Civil Code Section8182.
7.Except as stated herein, nothing contained in this instrument shall modify in any
way any other provisions of the DDA or any other provisions of the documents incorporated
herein.
{[[770,1701,1336,1758][12][,I,][Times New Roman]]remainder of page is blank [[1319,1701,1957,1758][12][,I,][Times New Roman]]/ signatures on following page [[1930,1701,1980,1758][12][,,][Times
New Roman]]}
IN WITNESS WHEREOF, the City has caused thisCertificateof Compliance to be duly
executed by its officer duly authorized as of the date first above written.
CITY OF TUSTIN
Dated: ___________________By:
Name:______________________________
Title:_______________________________
ATTEST:
By:
Name:___________________
Title:____________________
APPROVED AS TO FORM:
By:
Name:________________
City Attorney
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
whosigned the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California)
County of ______________________)
On_________________________, 2017, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature(Seal)
Legal Description of the Development Parcels
[[1115,562,1468,619][12][B,I,][Times New Roman]]{to be attached}
ATTACHMENT 16
ASSIGNMENT AND ASSUMPTION AGREEMENT
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT
FROM RECORDING FEES PER
GOVERNMENT CODE 6103 AND 27383.
Recording requested by and
When recorded mail to:
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
SPACE ABOVE THIS LINE FOR
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Parcel 6BTustin Legacy)
Assignment
This ASSIGNMENT AND
Assignment Effective Date
__________, a _________
Developer
corporation_________________, a _________________________
Transferee[[643,1753,694,1810][12][B,I,][Times New Roman]][ [[660,1753,710,1810][12][B,I,][Times New Roman]]{ [[678,1753,994,1810][12][B,I,][Times New Roman]]to be inserted [[989,1753,2299,1810][12][
B,I,][Times New Roman]]only in connection with a Transfer that is not a Permitted
[[300,1810,511,1867][12][B,I,][Times New Roman]]Transfer [[481,1810,531,1867][12][B,I,][Times New Roman]]: [[490,1810,547,1867][12][B,I,][Times New Roman]]}
[[533,1811,2299,1868][12][,I,][Times New Roman]]with the consent of the CITY OF TUSTIN, a municipal corporation of the State of
[[774,1868,829,1925][12][B,I,][Times New Roman]]]
with reference to the following matters:
[[727,1975,1088,2032][12][B,I,][Times New Roman]][{if developer:} [[1271,1975,1966,2032][12][B,I,][Times New Roman]]/ {if predecessor to Developer:}
A.The City and [[1051,1976,1292,2033][12][,I,][Times New Roman]]Developer [[1931,1976,2300,2033][12][,I,][Times New Roman]]CALATLANTIC
[[2066,2033,2121,2090][12][B,I,][Times New Roman]]]
[[450,2034,897,2091][12][,I,][Times New Roman]]GROUP, INC., a De [[870,2034,934,2091][12][,I,][Times New Roman]]la [[908,2034,1418,2091][12][,I,][Times New Roman]]ware Corporation, a
pr [[1388,2034,1485,2091][12][,I,][Times New Roman]]ede [[1456,2034,2101,2091][12][,I,][Times New Roman]]cessor in interest to developer [[2103,2034,2300,2091][12][,,][Times New Roman]]entered
into that certain Tustin Legacy Disposition and Development Agreement for Disposition
[[1468,2148,1519,2205][12][B,I,][Times New Roman]][ [[1485,2148,1782,2205][12][B,I,][Times New Roman]]{if amended: [[1742,2148,1799,2205][12][B,I,][Times New Roman]]} [[1912,2148,2223,2205][12][B,I,]
[Times New Roman]]Original DDA
Parcel6B, dated as of _________________, 201_
[[450,2206,1466,2263][12][,I,][Times New Roman]]as amended by that certain Amendment No. [[1445,2206,1521,2263][12][,I,][Times New Roman]]__ [[1524,2206,2300,2263][12][,I,][Times New
Roman]]to Tustin Legacy Disposition and
[[448,2264,1298,2321][12][,I,][Times New Roman]]Development Agreement for Disposition [[1256,2264,1476,2321][12][,I,][Times New Roman]]Parcel 6B [[1466,2264,1729,2321][12][,I,][Times
New Roman]]dated as of [[1688,2264,2036,2321][12][,I,][Times New Roman]]______, 201__( [[2002,2264,2300,2321][12][,I,][Times New Roman]]as amended,
[[550,2320,673,2377][12][B,I,][Times New Roman]]DDA [[746,2320,1119,2377][12][B,I,][Times New Roman]]{if not amended: [[1079,2320,1136,2377][12][B,I,][Times New Roman]]} [[1244,2320,1368,2377][12][B,
I,][Times New Roman]]DDA [[1390,2320,1445,2377][12][B,I,][Times New Roman]]]
[[1127,2321,1193,2378][12][,I,][Times New Roman]](t [[1157,2321,1232,2378][12][,I,][Times New Roman]]he [[1423,2321,2300,2378][12][,,][Times New Roman]], relating to the conveyance from
the City
to Developer of that certain real property legally described on Exhibitattached hereto
Development Parcels
Development Parcels
by Developer, all as more particularly set forth in the DDA. All initially capitalized terms
not otherwise defined in this Assignment shall have the meanings ascribed to such terms
in the DDA.
B.The City has executed that certain Declaration of Special Restrictions for Disposition
Special Restrictions
Parcel6B201_, that was recorded in the
Official Records
against title to the Development Parcelson _____________, 201_as Instrument No.
__________, which includes, among other matters, certain requirements regarding the use
and maintenance of the Development Parcelsand sets forth certain provisions of the DDA
that survive the Recording of a Certificate of Compliance with respect to the Project.
C.The City has executed thatcertain Quitclaim Deedfor Disposition Parcel6Band
Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant To
Quitclaim Deed
Civil Code Section 1471 201_, which was
recorded in the Official Records against title to the Development Parcelson
_____________,201_as Instrument No. __________, which Quitclaim Deedconveyed to
Developer the fee title to the Development Parcels, subject to certain restrictions and
limitations set forth in the Quitclaim Deedand sets forth certain provisions of the DDA
that survive Recording of a Certificate of Compliance with respect to the Project.
D.Developer and the City executed thatcertain Memorandum ofDisposition and
Memorandum of DDA
Development Agreement(Parcel 6B)
201_, which was recorded in the Official Records against title to the Development Parcels
on _____________, 201_as Instrument No. __________, and provided record notice of
the DDAand sets forth certain provisions of the DDA that survive Recording of a
Certificate of Compliance with respect to the Project.
E.Developer and the City executed that certain Landscape Maintenance Agreement
Landscape Maintenance Agreement
201_, which was recorded
against title to the Development Parcels on _______, 201__as Instrument No.______.
F.Developer and the City executed that certain Tustin Legacy Development Agreement
DA
201_, which was recorded in the Official Records
against title to the Development Parcelson _________________, 201_as Instrument No.
_______________.
[[449,1987,1462,2044][12][B,I,][Times New Roman]][{If Deed of Trust executed and not released:}
G.[[1426,1988,2300,2045][12][,I,][Times New Roman]]Developer executed that certain Deed of
[[450,2046,2299,2103][12][,I,][Times New Roman]]Trust in favor of the City dated _______________, 201_, which was recorded in the
[[1095,2102,1668,2159][12][B,I,][Times New Roman]][{if recorded only against [[1629,2102,1808,2159][12][B,I,][Times New Roman]]Lots 6 [[1771,2102,1873,2159][12][B,I,][Times New Roman]]and
[[1861,2102,1911,2159][12][B,I,][Times New Roman]]7 [[1886,2102,1952,2159][12][B,I,][Times New Roman]]:} [[2229,2102,2284,2159][12][B,I,][Times New Roman]]]
[[450,2103,990,2160][12][,I,][Times New Roman]]Official Records against [[953,2103,1133,2160][12][,I,][Times New Roman]]title to [[1931,2103,2270,2160][12][,I,][Times New Roman]]Lots
6 and 7 of
[[450,2161,539,2218][12][,I,][Times New Roman]]the [[560,2161,1554,2218][12][,I,][Times New Roman]]Development Parcels on ______________ [[1528,2161,2300,2218][12][,I,][Times New Roman]]___,
201_ as Instrument No.
[[674,2275,729,2332][12][B,I,][Times New Roman]]]
[[447,2276,716,2333][12][,I,][Times New Roman]]Agreement.
H.The DDA, the Memorandum of DDA, the Special Restrictions, theDA, the Quitclaim
[[1456,2440,1523,2497][12][B,I,][Times New Roman]][{ [[1491,2440,1725,2497][12][B,I,][Times New Roman]]if Deed o [[1691,2440,2299,2497][12][B,I,][Times New Roman]]f Trust executed and
not
Deed, the Landscape Maintenance Agreement,
[[450,2497,703,2554][12][B,I,][Times New Roman]]released:} [[1059,2497,1114,2554][12][B,I,][Times New Roman]]]
[[675,2498,1087,2555][12][,I,][Times New Roman]]the Deed of Trust [[1051,2498,1101,2555][12][,I,][Times New Roman]], [[1102,2498,1948,2555][12][,,][Times New Roman]]and the Profit Participation
Agreement [[1934,2498,2300,2555][12][,,][Times New Roman]]are collectively
Property Documents
I.Pursuant to the DDA, Developer agreed to develop and construct,on the Development
Parcels,certain Improvements comprising the Project.
J.Concurrently with the execution and delivery of this Assignment, Developer is conveying
[[1591,357,1642,414][12][B,I,][Times New Roman]][ [[1609,357,2269,414][12][B,I,][Times New Roman]]excluding only those portions [[2237,357,2288,414][12][B,I,][Times New Roman]],
to Transferee the entirety of theDevelopment Parcels
[[444,416,970,473][12][B,I,][Times New Roman]]previously conveyed to [[936,416,1186,473][12][B,I,][Times New Roman]]End Users [[1172,416,1565,473][12][B,I,][Times New Roman]]unless
otherwise [[1531,416,1816,473][12][B,I,][Times New Roman]]consented to [[1808,416,2300,473][12][B,I,][Times New Roman]]by the City in its sole
[[450,472,675,529][12][B,I,][Times New Roman]]discretion [[648,472,703,529][12][B,I,][Times New Roman]]]
comprised of that certain real property legally described on ExhibitB
TransferParcel
attached hereto and all Improvements located on the Transfer Parcel,
and Transferee will develop the Transfer Parcel in accordance with the requirements of the
DDA, including, without limitation, the Scope of Development and the Schedule of
Performance, and the other Property Documents.
K.The DDA imposes certain covenants, conditions, payment obligations and restrictions on
theDevelopment Parcelsand, prior to the filing of a Certificate of Completion, the DDA
Development
Parcelsobligations with respect to the
Project (including,without limitation,-site
infrastructure improvements), all as set forth in the DDA.
L.Developer desires to convey the Transfer Parcel to Transferee and to assign to Transferee
Transfer Event[[1375,1320,2299,1377][12][B,I,][Times New Roman]][{to be inserted only in connection with a
[[450,1377,1413,1434][12][B,I,][Times New Roman]]Transfer that is NOT a Permitted Transfer:} [[1381,1377,1431,1434][12][B,,][Times New Roman]],
[[1409,1378,1668,1435][12][,I,][Times New Roman]]to have suc [[1640,1378,2300,1435][12][,I,][Times New Roman]]h assignment approved by the
[[1658,1435,1910,1492][12][B,I,][Times New Roman]]Transferee
[[1328,1492,1383,1549][12][B,I,][Times New Roman]]]
[[450,1493,1353,1550][12][,I,][Times New Roman]]defined in and used in Section 2 of the DDA) [[1320,1493,1370,1550][12][,I,][Times New Roman]]. [[1369,1493,2300,1550][12][,,][Times New
Roman]]Pursuant to Section 2 of the DDA, a Transfer
must include, among other things, the execution and delivery of an assignment and
assumption agreement. Developer and Transferee are entering into this Assignment in
order to fulfill the obligations of Developer and Transferee as a Transferee under Section
2 of the DDA.
[[449,1830,906,1887][12][B,I,][Times New Roman]][{Insert if applicable [[878,1830,944,1887][12][B,I,][Times New Roman]]:} [[926,1830,1187,1887][12][B,I,][Times New Roman]][{Prior to/s
[[1157,1830,2007,1887][12][B,I,][Times New Roman]]imultaneously with this Transfer Event [[1972,1830,2022,1887][12][B,I,][Times New Roman]]: [[1982,1830,2039,1887][12][B,I,][Times New
Roman]]}
M.[[2006,1831,2056,1888][12][,I,][Times New Roman]], [[2034,1831,2300,1888][12][,I,][Times New Roman]]Transferee
[[450,1887,784,1944][12][B,I,][Times New Roman]]{has acquired/ [[748,1887,1122,1944][12][B,I,][Times New Roman]]will be acquiring [[1090,1887,1165,1944][12][B,I,][Times New Roman]]}]
[[1144,1888,1233,1945][12][,I,][Times New Roman]]the [[1219,1888,1573,1945][12][,I,][Times New Roman]]Transfer Parcel [[1542,1888,2300,1945][12][,I,][Times New Roman]]from Developer
pursuant to and in
[[1227,1945,1282,2002][12][B,I,][Times New Roman]]]
[[450,1946,844,2003][12][,I,][Times New Roman]]accordance with t [[808,1946,1269,2003][12][,I,][Times New Roman]]he terms of the DDA.
NOW, THEREFORE, for good and valuable consideration, Developer and Transferee
agree as follows:
1.Assignment[[689,2224,739,2281][12][,I,][Times New Roman]].
1.1.As of the Assignment Effective Date, Developer hereby assigns, conveys, transfers,
bargains, grants, sells and sets over to Transferee, as and to the extent owned or held by Developer,
Assigned Interests
(a)all right, title, interest and obligation of Developer as the
Property Documentswith respect to the Transfer Parcel,arising from and
after the Assignment Effective Date, including (i)all benefits provided to and burdens imposed
upon Developer pursuant to theProperty Documents with respect to the Transfer Parcel, and (ii)all
benefits provided to and burdens imposed upon the Transfer Parceland all improvements thereon
and all personal property associated therewith pursuant to the Property Documents;
(b)all Entitlements and Development Permitswith respect to the
Transfer Parcel;
(c)all plans, specifications, maps, drawings,and other renderings owned by
Developer and relating to the Transfer Parcel, the Project and the Entitlements or such portion
thereof as is subject to this Assignment;
(d)all warranties, claims, and any similar rights of Developer relating to and
benefiting the Transfer Parcelor the rights and interests transferred pursuant to this Assignment;
[[749,961,800,1018][12][B,I,][Times New Roman]][ [[767,961,835,1018][12][B,I,][Times New Roman]]{I [[804,961,1353,1018][12][B,I,][Times New Roman]]nclude only if Transfer [[1349,961,1746,1018][12][B,
I,][Times New Roman]]Parcel comprises [[1742,961,2004,1018][12][B,I,][Times New Roman]]all of the [[1980,961,2300,1018][12][B,I,][Times New Roman]]Development
(e)
[[299,1017,483,1074][12][B,I,][Times New Roman]]Parcels [[453,1017,503,1074][12][B,I,][Times New Roman]]: [[462,1017,519,1074][12][B,I,][Times New Roman]]}
[[507,1018,2299,1075][12][,I,][Times New Roman]]all intangible rights, goodwill, and similar rights relating to the Project and/or the
[[630,1075,685,1132][12][B,I,][Times New Roman]]]
[[300,1076,654,1133][12][,I,][Times New Roman]]Transfer Parcel [[618,1076,668,1133][12][,I,][Times New Roman]]; [[664,1076,761,1133][12][,,][Times New Roman]]and
(f)all development rights relating to the Transfer Parcel.
1.2.The Assigned Interests together with the Transfer Parcelare collectively referred
Assigned Property
2.Assumption.
[[599,1562,1033,1619][12][B,I,][Times New Roman]][{ALTERNATE 2.1 [[1009,1562,1075,1619][12][B,I,][Times New Roman]]-- [[1059,1562,1109,1619][12][B,I,][Times New Roman]]T [[1089,1562,1398,1619][12][B,
I,][Times New Roman]]o be used in [[1365,1562,1935,1619][12][B,I,][Times New Roman]]connection with a merger [[1904,1562,1970,1619][12][B,I,][Times New Roman]]:}
2.1.[[1955,1563,2300,1620][12][,I,][Times New Roman]]Transferee, on
[[300,1621,2300,1678][12][,I,][Times New Roman]]behalf of itself and its successors and assigns, from and after the Assignment Effective Date, hereby
[[300,1678,2299,1735][12][,I,][Times New Roman]]assumes and receives the Assigned Property and Transferee agrees with Developer (and such
[[300,1736,787,1793][12][,I,][Times New Roman]]agreement is expressly [[774,1736,2299,1793][12][,I,][Times New Roman]]also made for the benefit of the City and may be directly enforced
by the
[[300,1793,649,1850][12][,I,][Times New Roman]]City) as follows [[634,1793,2299,1850][12][,I,][Times New Roman]]and agrees to be bound by, perform and discharge all obligations of Developer
[[300,1851,1005,1908][12][,I,][Times New Roman]]under the Property Documents, [[998,1851,2179,1908][12][,I,][Times New Roman]]regardless of whether they relate to the period prior t
[[2144,1851,2300,1908][12][,I,][Times New Roman]]o the
[[297,1908,1124,1965][12][,I,][Times New Roman]]Assignment Effective Date or thereafter [[1094,1908,1144,1965][12][,I,][Times New Roman]]:
[[600,2016,650,2073][12][B,I,][Times New Roman]]{ [[615,2016,1022,2073][12][B,I,][Times New Roman]]ALTERNATE 2.1 [[997,2016,1063,2073][12][B,I,][Times New Roman]]-- [[1051,2016,1131,2073][12][B,I,][T
imes New Roman]]To [[1128,2016,2299,2073][12][B,I,][Times New Roman]]be used in connection with Transfers other than by
[[298,2072,350,2129][12][B,I,][Times New Roman]]M [[345,2072,484,2129][12][B,I,][Times New Roman]]erger [[453,2072,519,2129][12][B,I,][Times New Roman]]:}
[[531,2073,2300,2130][12][,I,][Times New Roman]]Transferee, on behalf of itself and its successors and assigns, from and after the
[[297,2131,1233,2188][12][,I,][Times New Roman]]Assignment Effective Date, hereby assumes [[1200,2131,2299,2188][12][,I,][Times New Roman]]and receives the Assigned Property and Transferee
[[300,2188,2299,2245][12][,I,][Times New Roman]]agrees with Developer (and such agreement is expressly made for the benefit of the City and may
[[300,2246,2299,2303][12][,I,][Times New Roman]]be directly enforced by the City) as follows and agrees to be bound by, perform and discharge all
[[300,2303,575,2360][12][,I,][Times New Roman]]obligations [[538,2303,2300,2360][12][,I,][Times New Roman]]of Developer under the Property Documents that arise from and after the Assignment
[[593,2360,648,2417][12][B,I,][Times New Roman]]]
[[298,2361,612,2418][12][,I,][Times New Roman]]Effective Date [[584,2361,634,2418][12][,,][Times New Roman]]:
(a)Transferee accepts and assumes all of the rights and benefits accruing to
Developer under the Property Documentsrelating to the Transfer Parcel, and all of the obligations,
conditions, limitations and restrictions related to the Transfer Parcel and/or the Assigned Interests
imposed upon Developer under the Property Documents.Transferee expressly assumes and shall
be subject to all the obligations, conditions, limitations and restrictions to which Developer and/or
theTransfer Parcelis subject under or by reason of the Property Documentsthat relate to the
Transfer Parcel, including, without limitation, the provisions of the release set forth inSection
4.5.2of the DDA and the indemnities set forth in Section 10of the DDA;
(b)Transferee expressly assumes and shall be subject to all the obligations,
conditions, limitations and restrictions to which Developer and/or the Assigned Property are
subjectby reason of the Entitlementsrelated to the Transfer Parcel;
(c)Upon and subject to the terms and provisions of the Property Documents,
Transferee expressly assumes and shall be subject to all the obligations to perform, construct
and/or install any and allImprovements to be constructed on the Transfer Parcel in accordance
with the Scope of Development and within the time period specified in the Schedule of
Performance;and
(d)Upon and subject to the terms and provisions of the Property Documents,
Transferee shall pay and perform all obligations of Developer set forth in the Property Documents
that relate to the Assigned Property, including, without limitation, the following obligations: (i)
the obligation to construct the Improvements to be constructed on the Transfer Parcelin
accordance with the Scope of Development and within the time period specified in the Schedule
of Performance; and (ii) the obligation to pay all sums required to be paid by Developer under the
Property Documents in connection with the ownership and/or development of the Assigned
Property, to the extent such amounts have not been paid as of the Assignment Effective Date.
Without limiting the generality of the foregoing, Transferee specifically agrees to pay all costs and
expenses incurred by the City in connection with the Transfer,including the costs of reviewing the
documents relating to the Transfer, Transferee or Transferor and preparing, negotiating and
reviewing all documents that effectuate or relate to the Transfer.Such costs and expenses shall
include, without limitation, City Staff costs as well as fees and costs incurred by the City for
attorneys and other professionals and agents.
2.2.Transferee shall remain fully responsible to perform and satisfy all of the
obligations and liabilities assumed by Transferee pursuant to Section2.1above regardless of any
of the following:
(a)the value of the Assigned Property orthe income to be derived from
theAssigned Property;
(b)the existence or non-existenceof any liens, easements, covenants,
conditions, restrictions, claims or encumbrances affecting the Assigned Property (including
without limitation any of the foregoing arising from or related to the Entitlements or any of the
Property Documents);
(c)the suitability of the Assigned Property for any and all future
development, uses and activities which Transferee or Developermay conduct thereon, including
the development of theProject as described in theProperty Documents;
(d)the ability of the City or any third party to complete, or likelihood
of the completion of, any of the improvements and infrastructure described by the General Plan,
the Reuse Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program or any other
plan or policy of the City or any other Governmental Authorities;
(e)the compliance by the City or any third party with respect to the
Reuse Plan, the General Plan, the Specific Plan, the Special Restrictions applicable to the Transfer
Parcel or any other portion of the Development Parcelsor the special restrictions or other
covenants and agreements applicable to other propertyat Tustin Legacy, the CC&Rs or any other
agreement or governmental restriction or plan affecting Tustin Legacy;
(f)the habitability, merchantability or fitness for a particular purpose
of the Assigned Property;
(g)the manner, quality, state of repair or lack of repair of the Assigned
Property;
(h)the nature, quality or condition of the Transfer Parcel including
water, soil and geology;
(i)the compliance of or by the Assigned Property and/or its operation
in accordance with any of the Entitlements or any Governmental Requirement, including without
limitation, the National Environmental Policy Act, CEQA and the Americans with Disabilities Act
of 1990;
(j)the manner or quality of the construction or materials, if any,
incorporated into any part of the Transfer Parcel or the Improvements;
(k)the presence or absence of Hazardous Materials, including without
limitation, asbestos or lead paint at, on, under, or adjacent to the Transfer Parcel or any other
portion of the Development Parcelsor Tustin Legacy;
(l)the content, completeness or accuracy of the information,
documentation, studies, reports, surveys and other materials, delivered to Transferee by Developer
or others in connection with review of the Assigned Property and the transactions
contemplated in theProperty Documents;
(m)the conformity of the existing improvements on the Transfer Parcel,
if any, to any plans or specifications;
(n)compliance of the AssignedProperty with past, current or future
Governmental Requirements(including, without limitation, the Entitlements)relating to zoning,
subdivision, planning, building, fire, safety, health or Environmental Matters and/or covenants,
conditions, restrictions or deed restrictions;
(o)the deficiency of any undershoring or of any drainageto, on or from
the Transfer Parcel or any other portion of Tustin Legacy;
(p)the fact that all or a portion of theTransfer Parcelmay be located on
or near an earthquake fault line or falls within an earthquake fault zone established under the
Alquist-Priolo Earthquake Zone Act, California Public Resources Code sections2621-2630 or
within a seismic hazard zone established under the Seismic Hazards Mapping Act, California
Public Resources Codesections2690-2699.6 and sections3720-3725;
(q)the existence or lack of vested land use, zoning or building
entitlements affecting the Transfer Parcel;
(r)the construction or lack of construction of Tustin Legacy or if
constructed, the construction of Tustin Legacy in accordance with design guidelines, plans and
specifications previously or to be prepared therefor;
(s)the conditions, covenants and restrictions imposed upon the
Assigned Property or any portion thereof under the Property Documentsor the Entitlements;
(t)the contents of the Memorandum of Agreement, the Federal Deed,
the Base Closure Law and the FOST; and
(u)any other matters.
3.Representations and Warranties.
3.1.As an inducement to the City to consent to the Transfer and this Assignment and to
perform its obligations hereunder, Transferee represents and warrants to the City as follows:
(a)Transferee has the necessary expertise, experience, financial
experience, financial capacity and qualifications and legal status necessary to perform as
Transferee pursuant to this Assignment and to construct and Complete the Project as contemplated
by this Assignment, and, without limiting the foregoing, Transferee is experienced in the
development, management, and sale of residential condominium projects of the size and type
described in this Assignment and understands the process and requirements associated with
projects such as theProject described herein.
(b)Assigned Property, development of
the Project and its other undertakings pursuant to this Assignment are for the purpose of timely
development of the Project upon the Transfer Parcel in accordance with the Schedule of
Performance attached to the DDAand not for speculation or land holding.
(c)Transferee is a [insert type of legal entity], duly incorporated [or
formed] and validly existing and in good standing under the laws of the State of [insert state of
formation], is duly qualified to do business and in good standing in the State and in each other
jurisdiction where the operation of its business or its ownership of property or the performance of
ch qualification necessary.
(d)Subject to all of the conditions in the DDA for the benefit of
Transferee, Transferee has (or will have prior to the date by which a particular step is required to
be taken or performance of a particular obligation is required to be commenced pursuant to this
Assignment or any Property Document) all requisite power and authority required to enter into
this Assignment and the instruments referenced in this Assignment, to consummate the transaction
contemplated herebyand therebyand to take any steps contemplated thereby or hereby, and to
perform its obligations hereunder and thereunder.
(e)Transferee has obtained (or will have obtained prior to the date by
which a particular step is required to be taken or performance of a particular obligation is required
to be commenced pursuant to this Assignment orany PropertyDocument) all required consents in
connection with entering into this Assignment and the instruments and documents referenced in
this Assignment to which Transferee is orshall be a party and the consummation of the transactions
contemplated herebyand thereby.
(f)The individuals executing this Assignment and the individuals that
will execute the instruments referenced in this Assignment on behalf of Transferee have, or will
have upon execution thereof, the legal power, right and actual authority to bind Transferee to the
terms and conditions hereof and thereof.
(g)This Assignment has been duly authorized, executed and delivered
by Transferee and all documents required in this Assignment to be executed by Transferee
pursuant to this Assignment shall be, at such time as they are required to be executed by Transferee,
duly authorized, executed and delivered by Transferee and are or shall be, at such time as the same
are required to be executed hereunder, valid, legally binding obligations of and enforceable against
Transferee in accordance with their terms, except as enforceability may be limited by bankruptcy
(h)Neither the execution or delivery of this Assignment or the
documents referenced in this Assignment, nor the incurring of the obligations set forthin the
Property Documentsin this Assignment and the certificates, declarations and other documents
referenced in this Assignment, nor the consummation of the transactions contemplated in this
Assignment, nor compliance with the terms of this Assignment and the documents referenced in
this Assignment, will violate any provision of law or any order of any court or Governmental
Authority to which Transferee is subject or conflict with or result in the breach of any terms,
conditions, or provisions of, or constitute a default under any bond, note, or other evidence of
indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership Assignment,
lease or other Assignments or instruments to which Transferee, or to the extent applicable to any
non-publicly traded Transferee, one of its owners, members or partners are a party and which affect
the Property, the Development Parcelsor the transactions contemplated by this Assignment.
(i)No attachments, execution proceedings, assignments of benefit to
creditors, bankruptcy, reorganization or other proceedings are pending or, to the best of
against Transferee, or to the extent applicable to any non-
publicly traded Transferee, one of its owners, members or partners.
(j)Except for those representations and warranties of the City expressly
set forth in Sections 3.3 and 17.12.2 of the DDA, Transferee is relying solely upon its own
inspections and investigations in proceeding with this Assignment and the transactions
contemplated hereby, and is not relying on the accuracy or reliability of any information provided
to it by the City, on any oral or written representation or on any facts or conclusions of law made
by the City, or any of its elected and appointed officials, officials, employees, agents, attorneys or
representatives made in connection with this Assignment. In making such investigation and
assessment, Transferee has been provided access to any persons, records or other sources of
information which it has deemed appropriate to review and it has thereafter completed such
investigation and assessment. Without limiting the generality of the foregoing provisions,
Transferee acknowledges that,without limiting any other provision of the Property Documents,
the City has not made and will not make any representations or warranties concerning the condition
of the Assigned Property, the compliance ornon-compliance of the Assigned Property or any
portion thereof with Environmental Laws or the existence or non-existence of Hazardous Materials
in relation to the Assigned Property or any portion thereof or otherwise.
(k)described on Attachment 4,
there are no adverse conditions or circumstances, no pending or threatened legal proceedings or
litigation against Transferee, no governmental action, and no other condition which could prevent
bility to carry out its obligations hereunder or under the Property
Documents to develop the Transfer Parcel and the Project as contemplated by the terms of this
Assignmentor the Property Documents.
(l)Except as set forth in this Assignmentor the Property Documents,
Transferee has not paid or given, and will not pay or give, any third Person any money or other
consideration for thisAssignment, other than the purchase price paid to the Transferor and the
normal cost of conducting business and cost of professional services such as architects, engineers
and attorneys.
(m)All reports, documents, instruments, information and forms of
evidence delivered by Transferee to the City concerning or related to this Assignment and the
Property Documents and the transactions contemplated hereby and thereby
knowledge, accurate and correct and sufficiently complete at the time of submission to give the
City true and accurate knowledge of the subject matter, and do not contain any material
misrepresentation or omission.
(n)As of the Effective date of this Assignment, Transferee will have the
equity capital and financial capacity required for Completion of the Development without
requirement of third party financing.
(o)Transferee does not have any contingent obligations or any other
contracts the performance or nonperformance of which could adversely affect the ability of
Transferee to carry out its obligations hereunder orunder the Property Documents.
his Section 3.1 shall be deemed to
be restated at the Close of Escrow of the Assigned Property covered by this Assignmentif the
same has not yet occurred,and shall survive the Close of Escrow(and any other close of escrow
with respect to conveyance of the Assigned Property to Transferee)until the earlier to occur of the
following (a) termination of this Assignment or (b) issuance of the Certificate of Compliance, and
shall not be merged withtheQuitclaim Deed or anyother deed. As used in Section 3.1 and 3.2,
he actual present knowledge of the
iry;
provided, however, that in the event any of the Transferee Knowledge Parties are unavailable at
the time these representations and warranties set forth in this Section 3.1 are restated at the close
of escrowfor the AssignedProperty covered by this Assignment, Transferee may specifically
Notwithstanding anything to the contrary contained herein, none of the Transferee Knowledge
Parties shall be personally liable for any inaccuracy or breach by Transferee of the representations
and warranties contained in Section 3.1 or elsewhere in this Assignment.
3.2.Transferee Covenants Regarding Representations and Warranties.Transferee
shall promptly advise the City in writing if any of the Transferee Knowledge Parties becomes
aware (without any duty of inquiry) that any representation or warranty made by Transferee in
Section 3.1 is or becomes untrue in any material respect prior to the close of escrow of the Assigned
Property covered by this Assignment.
[[450,1558,563,1615][12][,I,][Times New Roman]]3.3. [[600,1558,1104,1615][12][,,][Times New Roman]]Transferee Knowledge [[1110,1558,1276,1615][12][,,][Times New Roman]]Parties [[1246,1558,1296,1615][
12][,,][Times New Roman]]. [[1292,1558,1976,1615][12][,,][Times New Roman]]For purposes of the DDA, t
Transferee
Knowledge Parties(also referred to in this Assignment
Knowledge Parties
are ______________, _______________, and ___________________.
[[300,1731,1163,1788][12][B,I,][Times New Roman]]{insert names of employees, officers, [[1136,1731,1244,1788][12][B,I,][Times New Roman]]etc. [[1230,1731,2300,1788][12][B,I,][Times
New Roman]]of Transferee acceptable to the City in its sole
[[300,1788,553,1845][12][B,I,][Times New Roman]]discretion}
4.No Waiver or Modification. Nothing contained in this Assignment shall modify in any
way any provisions of the Property Documents or the Entitlements.
5.Additional Documents. Developer and Transferee shall each execute and deliver to the
other party, upon demand, such further documents, instruments and conveyances, and shall take
such further actions as are necessary or desirable to effectuate the intent and purposes of this
Assignment. In addition to the foregoing, Developer shall reasonably cooperate with Transferee,
at the expense of Transferee, to allow Transferee to submit and process any warranty claim under
any warranty in which Transferee obtained an interest as part of the Assigned Interests.
6.Miscellaneous.
6.1.Modification. No amendment, change, modification or supplement to this
Assignment shall be valid and binding on Developer or Transferee unless it is represented in
[[1417,2750,1468,2807][12][B,I,][Times New Roman]][ [[1435,2750,1485,2807][12][B,I,][Times New Roman]]{ [[1452,2750,2299,2807][12][B,I,][Times New Roman]]To be inserted only in connection
with
writing and signed by both Developer and Transferee[[1377,2751,1453,2808][12][,I,][Times New Roman]].
[[300,2807,1218,2864][12][B,I,][Times New Roman]]a Transfer that is not a Permitted Transfer: [[1178,2807,1235,2864][12][B,I,][Times New Roman]]}
[[1211,2808,2300,2865][12][,I,][Times New Roman]]No amendment, change, modification or supplement
[[300,300,719,357][12][,I,][Times New Roman]]to this Assignment [[683,300,2299,357][12][,I,][Times New Roman]]shall be deemed to be part of the consent or deemed to be consented to
by the
[[300,358,2300,415][12][,I,][Times New Roman]]City, unless the City executes a separate written consent to such amendment, change, modification
[[592,415,647,472][12][B,I,][Times New Roman]]]
[[300,416,620,473][12][,I,][Times New Roman]]or supplement [[585,416,635,473][12][,,][Times New Roman]].
6.2.Applicable Law. This Assignment shall be governed by, interpreted under,
construed and enforced in accordance with the laws of the State of California, irrespective of
-of-law principles.
6.3.Binding Effect. This Assignment and the terms, provisions, promises, covenants
and conditions hereof shall be binding upon and inure to the benefit of Developer and Transferee
and their respective heirs, legal representatives, successors and assigns.
6.4.Counterparts. This Assignment may be executed in two or more separate
counterparts, each of which, when soexecuted, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This Assignment
shall not be effective until the execution and delivery by Developer and Transferee of at least one
[[693,1197,760,1254][12][B,I,][Times New Roman]][{ [[728,1197,2299,1254][12][B,I,][Times New Roman]]to be inserted only in connection with a Transfer that is not a Permitted
set of counterparts
[[300,1255,530,1312][12][B,I,][Times New Roman]]Transfer: [[490,1255,547,1312][12][B,I,][Times New Roman]]}
[[555,1312,610,1369][12][B,I,][Times New Roman]]]
[[297,1313,580,1370][12][,I,][Times New Roman]]Assignment) [[547,1313,597,1370][12][,I,][Times New Roman]]. [[603,1313,1848,1370][12][,,][Times New Roman]]A counterpart of this Assignment
that is executed and delive [[1821,1313,2300,1370][12][,,][Times New Roman]]red electronically (by
facsimile machine or email) shall not be effective unless an ink-signed original executed copy of
the signature page of this Assignment is also promptly delivered to the other party, and such ink-
signed original executed page is actually received by the other party. Developer and Transferee
hereby authorize each other to detach and combine original signature pages and notarial
acknowledgements and consolidate them into a single identical original. Any one of such
completely executedcounterparts shall be sufficient proof of this Assignment as a duly and validly
executed agreement.
6.5.City as Third-Party Beneficiary. Developer and Transferee hereby acknowledge
and agree that until theCertificate of Compliance is recorded in the Official Records, the City shall
be an intended third-party beneficiary under this Assignment and the City shall have the right to
enforce the terms and provisions of this Assignment applicable to the City. Other than the City,
there shall be no third-party beneficiaries of this Assignment.
[[599,2161,650,2218][12][B,I,][Times New Roman]][ [[617,2161,667,2218][12][B,I,][Times New Roman]]{ [[634,2161,684,2218][12][B,I,][Times New Roman]]T [[665,2161,2299,2218][12][B,I,][Times
New Roman]]o be inserted only in connection with a Transfer that is not a Permitted
[[450,2162,563,2219][12][,I,][Times New Roman]]6.6.
[[300,2218,2299,2275][12][B,I,][Times New Roman]]Transfer; any Transferee subject to a Permitted Transfer may provide separate notice to the City
[[300,2275,1261,2332][12][B,I,][Times New Roman]]of any change in address for notice purposes: [[1221,2275,1278,2332][12][B,I,][Times New Roman]]}
[[1254,2276,1365,2333][12][,I,][Times New Roman]]Not [[1329,2276,1437,2333][12][,I,][Times New Roman]]ices [[1407,2276,2300,2333][12][,I,][Times New Roman]]. From and after the Amendment
Effective
[[298,2391,1627,2448][12][,I,][Times New Roman]]Property Documents and/or the Entitlements with respect to the [[1590,2391,1944,2448][12][,I,][Times New Roman]]Transfer Parcel [[1909,2391,2300,2448]
[12][,I,][Times New Roman]], and pursuant to
[[300,2448,472,2505][12][,I,][Times New Roman]]Section [[460,2448,572,2505][12][,I,][Times New Roman]]17.6 [[560,2448,635,2505][12][,I,][Times New Roman]]of [[611,2448,2133,2505][12][,I,][Times
New Roman]]the DDA, shall be delivered to Transferee only at the following addresses:
[[600,2556,866,2613][12][,I,][Times New Roman]]Transferee:
[[600,2613,1004,2670][12][,I,][Times New Roman]][__entity_______]
[[599,2671,1200,2728][12][,I,][Times New Roman]]_______________________
[[599,2728,1200,2785][12][,I,][Times New Roman]]_______________________
[[599,2786,1200,2843][12][,I,][Times New Roman]]_______________________
[[599,358,907,415][12][,I,][Times New Roman]]with a copy to [[882,358,932,415][12][,I,][Times New Roman]]:
[[600,416,934,473][12][,I,][Times New Roman]][legal counsel]
[[599,473,1200,530][12][,I,][Times New Roman]]_______________________
[[599,531,1200,588][12][,I,][Times New Roman]]_______________________
[[1170,587,1225,644][12][B,I,][Times New Roman]]]
[[599,588,1200,645][12][,I,][Times New Roman]]_______________________
[[1098,761,1597,818][12][,I,][Times New Roman]]{signatures on next pag [[1572,761,1645,818][12][,I,][Times New Roman]]e}
Developer and Transferee each has caused this Assignment to be duly executed by its
duly authorized officer as of the Assignment Effective Date.
CalAtlantic Group, Inc.,
a Delaware corporation
By: ________________________
Name: ______________________
Dated: __________________Title: ________________________
[___[[1245,1371,1384,1428][12][,I,][Times New Roman]]entity [[1356,1371,1498,1428][12][,,][Times New Roman]]___],
a _______________________________
Dated: __________________
By:
Name:
Title:
By:
Name:
Title:
{[[1017,2351,1378,2408][12][,I,][Times New Roman]]City consent on [[1340,2351,1561,2408][12][,I,][Times New Roman]]next page [[1533,2351,1583,2408][12][,,][Times New Roman]]}
[[449,364,1538,421][12][B,I,][Times New Roman]][THE FOLLOWING ACKNOWLEDGEMENT IS [[1501,364,2173,421][12][B,I,][Times New Roman]]TO BE INSERTED ONLY IN
[[450,422,2207,479][12][B,I,][Times New Roman]]CONNECTION WITH A TRANSFER THAT IS NOT A PERMITTED TRANSFER [[2186,422,2241,479][12][B,I,][Times New Roman]]]
ACKNOWLEDGMENT AND CONSENT BY CITY OF TUSTIN
By executing in the space set forth below, the City of Tustin hereby:
(a)Acknowledgesreceipt of the Assignment and Assumption Agreement
Assignment
(the
(b)Consentsto the making of the Assignment between Developer and Transferee,
subject to the terms and conditions set forth in the Assignment;
(c)This Consent by the City constitutes the consent required pursuant to Section 2of
the DDA and constitutes satisfaction of D
pursuant to Section 2of the DDA;
[[840,1367,891,1424][12][B,I,][Times New Roman]][ [[858,1367,1443,1424][12][B,I,][Times New Roman]]insert name of Transferee]
(d)Agrees that ,a _____________________ (the
withrespect to the Transfer Parcel, from and after the Assignment Effective Date;
[[888,1590,955,1647][12][B,I,][Times New Roman]][{ [[923,1590,973,1647][12][B,I,][Times New Roman]]a [[942,1590,1875,1647][12][B,I,][Times New Roman]]pplies only if there is a release
of Developer [[1857,1590,2296,1647][12][B,I,][Times New Roman]]and not in the case
(e)Confirms that
[[300,1647,575,1704][12][B,I,][Times New Roman]]of a Merger [[544,1647,594,1704][12][B,I,][Times New Roman]]: [[554,1647,611,1704][12][B,I,][Times New Roman]]}
[[589,1648,1944,1705][12][,I,][Times New Roman]]Developer shall be released from any of its obligations under the [[1904,1648,2134,1705][12][,I,][Times New Roman]]Property
[[298,1706,458,1763][12][,I,][Times New Roman]]Docum [[444,1706,574,1763][12][,I,][Times New Roman]]ents [[537,1706,1184,1763][12][,I,][Times New Roman]]related to the Transfer Parcel
[[1147,1706,2270,1763][12][,I,][Times New Roman]]arising from and after the Assignment Effective Date;
[[770,1762,825,1819][12][B,I,][Times New Roman]]]
[[293,1763,810,1820][12][,I,][Times New Roman]]provided, however, that [[804,1763,2231,1820][12][,,][Times New Roman]]notwithstanding the assignment by Developer and the assumption by
Transferee in this Assignment, Developer is not released from, and remains fully liable for all
obligations and liabilities with respect to: (i) matters or circumstances (including any payment
obligations)
the DDA and for the Additional Liability Period, as applicable;(ii)the releases set forth in
Section 4.5.2(f) of the DDAor in any of the other Property Documents, (iii)the indemnities set
forth in Sections 5.5, 8.12(e), 8.15, 8.16, 10.1, 10.2 and 17.12.1 of the DDAand indemnities in
any of the other Property Documentsfor matters Accruing during the period that such transferor
was Developer hereunder andfor the Additional Liability Period as applicable;and (iv) any of
Property Documentsto the extent that the same arise prior to
the Assignment Effective Date or subsequently if arising due to the acts or omissions of
Developer and/or any Developer Affiliate or Developer Representative;
[[599,2502,650,2559][12][B,I,][Times New Roman]][ [[617,2502,1749,2559][12][B,I,][Times New Roman]]{Applies to an Assignment in connection with Merger [[1719,2502,1769,2559][12][B,I,][Times
New Roman]]: [[1729,2502,1786,2559][12][B,I,][Times New Roman]]}
[[450,2503,530,2560][12][,I,][Times New Roman]](f) [[1764,2503,2250,2560][12][,I,][Times New Roman]]Further confirms that
[[300,2561,736,2618][12][,I,][Times New Roman]]notwithstanding the [[721,2561,2102,2618][12][,I,][Times New Roman]]assignment by Developer and the assumption by Transferee in this
[[297,2618,1848,2675][12][,I,][Times New Roman]]Assignment, Developer is not released from, and remains fully liable for all [[1825,2618,2188,2675][12][,I,][Times New Roman]]obligations
and
[[1131,2675,1186,2732][12][B,I,][Times New Roman]]]
[[300,2676,520,2733][12][,I,][Times New Roman]]liabilities [[502,2676,1149,2733][12][,I,][Times New Roman]]under the Property Documents [[1119,2676,1169,2733][12][,I,][Times New Roman]];
[[599,299,650,356][12][B,I,][Times New Roman]][ [[617,299,1654,356][12][B,I,][Times New Roman]]{Applies only if one of the following is applicable [[1626,299,1676,356][12][B,I,][Times
New Roman]]: [[1635,299,1692,356][12][B,I,][Times New Roman]]}
[[450,300,541,357][12][,I,][Times New Roman]](g) [[1672,300,2118,357][12][,I,][Times New Roman]]notwithstanding the
[[300,358,2280,415][12][,I,][Times New Roman]]assignment by Developer and the assumption by Transferee in this Assignment, Developer is not
[[1942,415,1997,472][12][B,I,][Times New Roman]]]
[[300,416,1179,473][12][,I,][Times New Roman]]released from, and remains fully liable for [[1162,416,1791,473][12][,I,][Times New Roman]]all obligations and liabilities [[1744,416,1972,473][12][,I,]
[Times New Roman]]from, and
[[1199,300,2176,357][12][B,I,][Times New Roman]][{Applies only if there is Property retained by
(i)
[[299,357,466,414][12][B,I,][Times New Roman]]Develo [[435,357,538,414][12][B,I,][Times New Roman]]per [[508,357,558,414][12][B,I,][Times New Roman]]: [[518,357,575,414][12][B,I,][Times
New Roman]]}
[[555,358,721,415][12][,I,][Times New Roman]]under [[684,358,2243,415][12][,I,][Times New Roman]]the Property Documents which relate to any other portion of the Developer
[[298,416,2274,473][12][,I,][Times New Roman]]Parcels, the Property or the Project that is not subject to the foregoing Transfer Event and as to
[[299,473,1742,530][12][,I,][Times New Roman]]which Developer has not been theretofore released in accordance with [[1730,473,2032,530][12][,I,][Times New Roman]]the Property
[[520,530,575,587][12][B,I,][Times New Roman]]]
[[298,531,555,588][12][,I,][Times New Roman]]Documents [[542,531,592,588][12][,I,][Times New Roman]]; [[571,531,671,588][12][,I,][Times New Roman]]and
[[1220,637,1270,694][12][B,I,][Times New Roman]]{ [[1237,637,1526,694][12][B,I,][Times New Roman]](ii) and (iii) [[1486,637,1622,694][12][B,I,][Times New Roman]]Appl [[1581,637,1636,694][12][B,I,][T
imes New Roman]]y [[1621,637,1759,694][12][B,I,][Times New Roman]]only [[1722,637,2291,694][12][B,I,][Times New Roman]]if Transfer is a Permitted
(ii)[[1200,638,1250,695][12][,I,][Times New Roman]][
[[300,695,530,752][12][B,I,][Times New Roman]]Transfer [[493,695,568,752][12][B,I,][Times New Roman]]or [[550,695,775,752][12][B,I,][Times New Roman]]if there is [[755,695,807,752][12][B,I,][Times
New Roman]]N [[793,695,1017,752][12][B,I,][Times New Roman]]o Release [[989,695,1039,752][12][B,I,][Times New Roman]]: [[998,695,1055,752][12][B,I,][Times New Roman]]}
[[1035,696,2229,753][12][,I,][Times New Roman]]that have Accrued prior to the Assignment Effective Date
[[300,753,2229,810][12][,I,][Times New Roman]]under the Property Documents and the Entitlements including, without limitation, pursuant to
[[300,811,1213,868][12][,I,][Times New Roman]]any indemnity given by Developer under the [[1196,811,2145,868][12][,I,][Times New Roman]]Property Documents and/or the Entitlements, [[2121,811,2221,868
][12][,I,][Times New Roman]]and
(iii)[[1200,918,2228,975][12][,I,][Times New Roman]]in addition to all of the obligations of Transferee
[[300,976,2281,1033][12][,I,][Times New Roman]]under the Property Documents, Developer remains jointly and severally liable with Assignee for
[[300,1033,1528,1090][12][,I,][Times New Roman]]all the obligations under the Property Documents relating t [[1492,1033,2197,1090][12][,I,][Times New Roman]]o the Transfer Parcel, including,
[[299,1091,2217,1148][12][,I,][Times New Roman]]without limitation, for the following: (i) construction of the Improvements, (ii) payment of the
[[300,1206,982,1263][12][,I,][Times New Roman]]and all release and indemnity ob [[957,1206,2283,1263][12][,I,][Times New Roman]]ligations of Developer set forth in the Property Documents
with
[[907,1262,962,1319][12][B,I,][Times New Roman]]]
[[300,1263,949,1320][12][,I,][Times New Roman]]respect to the Transfer Parcel.
(h)Acknowledges the new addresses for Notices for Transferee set forth in the
Assignment and agrees that such new addresses shall be the effective notice addresses for the
Developer from and after the Assignment Effective Date under the Property Documents and the
Entitlements.
[[1092,1708,1142,1765][12][,I,][Times New Roman]]{ [[1112,1708,1591,1765][12][,I,][Times New Roman]]signatures on next pag [[1566,1708,1639,1765][12][,I,][Times New Roman]]e}
This Consent by the City to the Assignment shall not constitute evidence of compliance
with or satisfaction of any obligation of Developer under any of the Property Documents, or any
other agreement between Developer and the City, except for the obligation of Developer to
CITY OF TUSTIN:
Dated:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:
Amy E. Freilich
[[987,2527,1246,2584][12][,I,][Times New Roman]]{signatures [[1228,2527,1450,2584][12][,I,][Times New Roman]]continued [[1438,2527,1696,2584][12][,I,][Times New Roman]]on next pag [[1671,2527,1743,25
84][12][,I,][Times New Roman]]e}
ACKNOWLEDGED AND AGREED:
DEVELOPER:
CalAtlantic Group, Inc., a Delaware
corporation
By:
Name:
Title:
By:
Name:
Title:
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s)of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies),and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
Legal Description of the Development Parcels
[[1115,457,1468,514][12][B,I,][Times New Roman]]{to be attached}
Legal Description of the Transfer Parcel
[[1115,464,1468,521][12][B,I,][Times New Roman]]{to be attached}
ATTACHMENT 17
CITY DATE DOWN CERTIFICATE
REGARDING REPRESENTATIONS AND WARRANTIES
Reference is hereby made to that certain Tustin Legacy Disposition and Development
[[1626,608,1677,665][12][B,I,][Times New Roman]][ [[1643,608,1946,665][12][B,I,][Times New Roman]]{if amended: [[1906,608,1963,665][12][B,I,][Times New Roman]]} [[2075,608,2300,665][12][B,I,][Times
New Roman]]Original
Agreement For Disposition Parcel 6B dated as of _____, 201_
[[299,666,422,723][12][B,I,][Times New Roman]]DDA
[[1456,667,1532,724][12][,I,][Times New Roman]]__ [[1533,667,2300,724][12][,I,][Times New Roman]]to Tustin Legacy Disposition and
[[298,724,1168,781][12][,I,][Times New Roman]]Development Agreement for Disposition [[1132,724,1358,781][12][,I,][Times New Roman]]Parcel 6B [[1355,724,1632,781][12][,I,][Times New
Roman]]dated as of [[1597,724,1952,781][12][,I,][Times New Roman]]______, 201__( [[1918,724,2300,781][12][,I,][Times New Roman]]as amended, the
[[327,781,450,838][12][B,I,][Times New Roman]]DDA [[531,781,919,838][12][B,I,][Times New Roman]]{if not amended: [[879,781,936,838][12][B,I,][Times New Roman]]} [[1058,781,1181,838][12][B,I,][Times
New Roman]]DDA [[1204,781,1259,838][12][B,I,][Times New Roman]]]
[[515,782,567,839][12][,I,][Times New Roman]]/ [[942,782,1008,839][12][,I,][Times New Roman]](t [[972,782,1047,839][12][,I,][Times New Roman]]he [[1226,782,2300,839][12][,,][Times New
Roman]], by and between the City of Tustin, a municipal
City
[[556,896,1272,953][12][B,I,][Times New Roman]][{if no Assignment or Merger: [[1232,896,1289,953][12][B,I,][Times New Roman]]} [[1327,896,1566,953][12][B,I,][Times New Roman]]Developer
[[1603,896,1657,953][12][B,I,][Times New Roman]]/ [[1648,896,1698,953][12][B,I,][Times New Roman]]{ [[1665,896,2224,953][12][B,I,][Times New Roman]]if Assignment or Merge [[2197,896,2267,953][12][B,
I,][Times New Roman]]r: [[2226,896,2283,953][12][B,I,][Times New Roman]]}
corporation
[[539,953,778,1010][12][B,I,][Times New Roman]]Developer
[[2173,954,2301,1011][12][,I,][Times New Roman]]that
[[300,1012,1342,1069][12][,I,][Times New Roman]]certain Assignment Agreement by and between [[1315,1012,2300,1069][12][,I,][Times New Roman]]_________________, a _________________
Developer[[1137,1068,1656,1125][12][B,I,][Times New Roman]]Assignment Agreement
[[691,1069,1114,1126][12][,I,][Times New Roman]]Original Developer [[1688,1069,2300,1126][12][,I,][Times New Roman]]assigned all of its right, title
[[1203,1126,1258,1183][12][B,I,][Times New Roman]]]
[[300,1127,1245,1184][12][,I,][Times New Roman]]and interest in and to the DDA to Developer. [[1251,1127,2299,1184][12][,,][Times New Roman]]Capitalized terms used herein that are not
defined
herein shall have the meanings specified in the DDA.
This Date Down Certificate is being delivered by the City pursuant to Section7.2.1(a)(xi)of the
Original DDA concurrently with the Close of Escrow.
The undersigned does hereby certify to Developer, in the name and on behalf of the City, that all
of the representations and warranties made by the City in Section3.3and in Section17.12.2of the
[[300,1571,543,1628][12][B,I,][Times New Roman]]{Original}
DDAare true and correct as of the date hereof, except as set forth on ExhibitAattached
hereto.
Without the written consent of the City: (i) no Person other than Developer may rely on this Date
Down Certificate for any purpose; and (ii) copies of this Date Down Certificate may not be
furnished to anyone for purposes of encouraging such reliance.
In no event shall the individual executing this Date Down Certificate on behalf of the City have
any personal liability hereunder.
[[1092,2182,1591,2239][12][,I,][Times New Roman]]{signatures on next pag [[1566,2182,1639,2239][12][,I,][Times New Roman]]e}
CITY OF TUSTIN:
Dated:________________
By:___________________________
Jeffrey C. Parker,
City Manager
APPROVED AS TO FORM
By:___________________________
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:__________________________
Amy E. Freilich
[[912,1621,1668,1678][12][,I,][Times New Roman]]{signatures continued on next page}
EXHIBIT A
[[1035,358,1139,415][12][B,I,][Times New Roman]]{If [[1099,358,1240,415][12][B,I,][Times New Roman]]None [[1211,358,1553,415][12][B,I,][Times New Roman]], state NONE}.
ATTACHMENT 18
DEVELOPER DATE DOWN CERTIFICATE
REGARDING REPRESENTATIONS AND WARRANTIES
Reference is hereby made to that certain Tustin Legacy Disposition and Development
[[1626,608,1677,665][12][B,I,][Times New Roman]][ [[1643,608,1946,665][12][B,I,][Times New Roman]]{if amended: [[1906,608,1963,665][12][B,I,][Times New Roman]]} [[2075,608,2300,665][12][B,I,][Times
New Roman]]Original
Agreement For Disposition Parcel 6B dated as of _____, 201_
[[299,666,422,723][12][B,I,][Times New Roman]]DDA
[[1456,667,1532,724][12][,I,][Times New Roman]]__ [[1533,667,2300,724][12][,I,][Times New Roman]]to Tustin Legacy Disposition and
[[298,724,1168,781][12][,I,][Times New Roman]]Development Agreement for Disposition [[1132,724,1358,781][12][,I,][Times New Roman]]Parcel 6B [[1355,724,1632,781][12][,I,][Times New
Roman]]dated as of [[1597,724,1952,781][12][,I,][Times New Roman]]______, 201__( [[1918,724,2300,781][12][,I,][Times New Roman]]as amended, the
[[327,781,450,838][12][B,I,][Times New Roman]]DDA [[531,781,919,838][12][B,I,][Times New Roman]]{if not amended: [[879,781,936,838][12][B,I,][Times New Roman]]} [[1058,781,1181,838][12][B,I,][Times
New Roman]]DDA [[1204,781,1259,838][12][B,I,][Times New Roman]]]
[[942,782,1008,839][12][,I,][Times New Roman]](t [[972,782,1047,839][12][,I,][Times New Roman]]he [[1226,782,1634,839][12][,,][Times New Roman]], by and between [[1603,782,2300,839][12][,,][Times
New Roman]]the City of Tustin, a municipal
City
CalAtlantic Group, Inc., a Delaware
[[556,896,1272,953][12][B,I,][Times New Roman]][{if no Assignment or Merger: [[1232,896,1289,953][12][B,I,][Times New Roman]]} [[1327,896,1566,953][12][B,I,][Times New Roman]]Developer
[[1603,896,1657,953][12][B,I,][Times New Roman]]/ [[1648,896,1698,953][12][B,I,][Times New Roman]]{ [[1665,896,2266,953][12][B,I,][Times New Roman]]if Assignment or Merger: [[2226,896,2283,953][12][
B,I,][Times New Roman]]}
corporation
[[539,953,778,1010][12][B,I,][Times New Roman]]Developer
[[2173,954,2301,1011][12][,I,][Times New Roman]]that
[[300,1012,1342,1069][12][,I,][Times New Roman]]certain Assignment Agreement by and between [[1315,1012,1791,1069][12][,I,][Times New Roman]]_________________, [[1777,1012,2300,1069][12][,I,][Times
New Roman]]a _________________
Developer[[1137,1068,1656,1125][12][B,I,][Times New Roman]]Assignment Agreement
and[[691,1069,1114,1126][12][,I,][Times New Roman]]Original Developer [[1688,1069,2300,1126][12][,I,][Times New Roman]]assigned all of its right, title
[[1203,1126,1258,1183][12][B,I,][Times New Roman]]]
[[300,1127,1245,1184][12][,I,][Times New Roman]]and interest in and to the DDA to Developer. [[1251,1127,2299,1184][12][,,][Times New Roman]]Capitalized terms used herein that are not
defined
herein shall have the meanings specified in the DDA.
This Date Down Certificate is being delivered by the Developer pursuant to
[[1305,1348,1355,1405][12][B,I,][Times New Roman]]{ [[1322,1348,1533,1405][12][B,I,][Times New Roman]]Original [[1491,1348,1548,1405][12][B,I,][Times New Roman]]}
Section7.2.2(b)(x)and Section7.2.2(b)(xi)of the DDA concurrently with the Close of
Escrow.
The undersigned does hereby certify to the City, in his capacityas an officer of Developer
and for and on behalf of Developer as follows:
[[1570,1678,2266,1735][12][B,I,][Times New Roman]]{if no Assignment or Merger: [[2226,1678,2283,1735][12][B,I,][Times New Roman]]}
All of the representations and warranties made by
[[927,1736,1187,1793][12][B,I,][Times New Roman]]{Original} [[1258,1736,1312,1793][12][B,I,][Times New Roman]]/ [[1287,1736,1337,1793][12][B,I,][Times New Roman]]{ [[1304,1736,1857,1793][12][B,I,][T
imes New Roman]]if Assignment or Merger: [[1817,1736,1874,1793][12][B,I,][Times New Roman]]}
[[298,1737,608,1794][12][,I,][Times New Roman]]Developer in [[570,1737,742,1794][12][,I,][Times New Roman]]Section [[730,1737,818,1794][12][,I,][Times New Roman]]3.1 [[804,1737,966,1794][12][,I,][Ti
mes New Roman]]of the [[1146,1737,1270,1794][12][,I,][Times New Roman]]DDA [[1851,1737,2300,1794][12][,I,][Times New Roman]]Developer pursuant
[[883,1793,938,1850][12][B,I,][Times New Roman]]] [[1513,1793,1756,1850][12][B,I,][Times New Roman]]{Original}
[[300,1794,364,1851][12][,I,][Times New Roman]]to [[353,1794,442,1851][12][,I,][Times New Roman]]the [[424,1794,924,1851][12][,I,][Times New Roman]]Assignment Agreement [[919,1794,1093,1851][12][,,][
Times New Roman]]and in [[1057,1794,1232,1851][12][,,][Times New Roman]]Section [[1220,1794,1358,1851][12][,,][Times New Roman]]17.12 [[1332,1794,1395,1851][12][,,][Times New Roman]].1
[[1383,1794,1549,1851][12][,,][Times New Roman]]of the [[1737,1794,1859,1851][12][,,][Times New Roman]]DDA [[1859,1794,2300,1851][12][,,][Times New Roman]]are true and correct
as of the date hereof, except as set forth on ExhibitAattached hereto.
[[599,1958,1317,2015][12][B,I,][Times New Roman]][{if no Assignment or Merger:}
[[450,1959,525,2016][12][,I,][Times New Roman]]1. [[1305,1959,1436,2016][12][,I,][Times New Roman]]Any [[1410,1959,1975,2016][12][,I,][Times New Roman]]documentation submitted [[1949,1959,2229,2016
][12][,I,][Times New Roman]]to the City [[2203,1959,2300,2016][12][,I,][Times New Roman]]by
[[1670,2016,1913,2073][12][B,I,][Times New Roman]]{Original}
[[598,2017,858,2074][12][,I,][Times New Roman]]Developer [[817,2017,1013,2074][12][,I,][Times New Roman]]pursuan [[988,2017,1107,2074][12][,I,][Times New Roman]]t to [[1073,2017,1245,2074][12][,I,]
[Times New Roman]]Section [[1220,2017,1270,2074][12][,I,][Times New Roman]]s [[1252,2017,1340,2074][12][,I,][Times New Roman]]3.1 [[1331,2017,1509,2074][12][,I,][Times New Roman]]and
4.6 [[1484,2017,1547,2074][12][,I,][Times New Roman]].5 [[1538,2017,1704,2074][12][,I,][Times New Roman]]of the [[1895,2017,2300,2074][12][,I,][Times New Roman]]DDA prior to the
[[1908,2073,1963,2130][12][B,I,][Times New Roman]]]
[[598,2074,1950,2131][12][,I,][Times New Roman]]Effective Date is true and correct as of the date of this certificate.
[[599,2181,650,2238][12][B,I,][Times New Roman]][ [[617,2181,1216,2238][12][B,I,][Times New Roman]]{if Assignment or Merger:}
[[1173,2182,1282,2239][12][,I,][Times New Roman]]Any [[1263,2182,2083,2239][12][,I,][Times New Roman]]documentation submitted to the City by [[2040,2182,2300,2239][12][,I,][Times New
Roman]]Developer
[[1418,2238,1660,2295][12][B,I,][Times New Roman]]{Original}
[[593,2239,879,2296][12][,I,][Times New Roman]]pursuant to [[841,2239,1194,2296][12][,I,][Times New Roman]]Sections 2.2 and [[1182,2239,1270,2296][12][,I,][Times New Roman]]4.6 [[1244,2239,1307,2296
][12][,I,][Times New Roman]].5 [[1294,2239,1434,2296][12][,I,][Times New Roman]]of the [[1638,2239,2300,2296][12][,I,][Times New Roman]]DDA as of the effective date of
[[674,2296,1088,2353][12][B,I,][Times New Roman]]{Transfer/Merger} [[2082,2296,2137,2353][12][B,I,][Times New Roman]]]
[[600,2297,689,2354][12][,I,][Times New Roman]]the [[1068,2297,2120,2354][12][,I,][Times New Roman]]is true and correct as of the date of this certificate;
2.Attached to this Date Down Certificate as ExhibitBare true and correct copies of
[[1411,2461,1461,2518][12][B,I,][Times New Roman]]{ [[1428,2461,1654,2518][12][B,I,][Times New Roman]]Delaware [[1622,2461,2300,2518][12][B,I,][Times New Roman]]/other state of formation
if not
the certificate of good standing for Developer from the
[[300,2518,564,2575][12][B,I,][Times New Roman]]California}
Secretary of State and the California Secretary of State, and each attached certificate
of good standing is dated not earlier than thirty (30) days prior to the date of this Date Down
Certificate.
Without the written consent of Developer: (i) no Person other than the City may rely on
this Date Down Certificate for any purpose; and (ii) copies of this Date Down Certificate may not
be furnished to anyone for purposes of encouraging such reliance.
In no event shall the individual executing this Date Down Certificate on behalf of
Developer have any personal liability hereunder.
[[1092,523,1591,580][12][,I,][Times New Roman]]{signatures on next pag [[1566,523,1639,580][12][,I,][Times New Roman]]e}
Dated: ________, 201_
DEVELOPER:
______________________________,
_____________________________
a
By:
Name:
Title:
By:
Name:
Title:
EXHIBIT A
[[1035,358,1139,415][12][B,I,][Times New Roman]]{If [[1099,358,1240,415][12][B,I,][Times New Roman]]None [[1211,358,1535,415][12][B,I,][Times New Roman]], state NONE} [[1502,358,1553,415][12][B,I,][
Times New Roman]].
EXHIBIT B
[[527,462,1227,519][12][,I,][Times New Roman]]Certificate of Good Standing from [[1213,462,1614,519][12][,I,][Times New Roman]]_______________ [[1601,462,1984,519][12][,I,][Times New
Roman]]Secretary of State
[[527,573,828,630][12][,I,][Times New Roman]]Certificate of [[805,573,1264,630][12][,I,][Times New Roman]]Good Standing from [[1226,573,1688,630][12][,I,][Times New Roman]]California
Secretary [[1651,573,1830,630][12][,I,][Times New Roman]]of State [[1815,573,1915,630][12][,I,][Times New Roman]]and
[[527,684,2029,741][12][,I,][Times New Roman]]Certificate of tax good standing from the California Franchise Tax Board
ATTACHMENT 20
DECLARATION OF SPECIAL RESTRICTIONS
FOR DISPOSITION PARCEL 6B
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT
FROM RECORDING FEES PER
GOVERNMENT CODE 6103 AND 27383.
Recording requested by and
when recorded mail to:
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
SPACE ABOVE THIS LINE FOR
DECLARATION OF SPECIAL RESTRICTIONS
FOR DISPOSITION PARCEL 6B
[[467,1674,2099,1731][12][B,I,][Times New Roman]][PRIOR TO EXECUTION, CONFORM ALL QUOTED SECTIONS OF DDA
[[818,1732,1766,1789][12][B,I,][Times New Roman]]TO THEN CURRENT VERSION OF DDA]
DECLARATION OF SPECIAL RESTRICTIONS FOR DISPOSITION PARCEL 6B
This
DeclarationEffective Date
City
Developer
A.Pursuant to the Defense Base Closure and Realignment Act of 1990 (Part A of Title
Base Closure
XXIX of Public Law 101-
LawMCAS Tustin
-
of Tustin, California was closed by the United States of America, acting by and through the
Navy
Local Redevelopment Authority for preparation of a reuse plan for MCAS Tustin in order to
facilitate the closure of MCAS Tustin and its reuse in furtherance of the economic development of
the City and surrounding region.
B.In May 2002, the Navy and the City entered into that certain Agreement Between
the United States of America andthe City of Tustin, California for the Conveyance of a Portion of
Navy Conveyance
Agreement
,
City. The 1,153 acres of MCAS Tustin located within the City of Tustin and either conveyed by
the Navy to the City or subject to ground lease between the Navy and the City is referred to in this
Tustin Legacy
Declaration
Land
C.approximately 14.45 gross acres of land, more or less,
located in the City of Tustin, County of Orange, California and legally described on Attachment 1
attached hereto and incorporated herein by this reference, constitutes a portion of Tustin Legacy
conveyed to the City pursuantto the Navy Conveyance Agreement.
D.The City and Developer entered into that certain Tustin Legacy Disposition and
Development Agreement for Disposition Parcel 6B, dated as of ______________, 201_, pursuant
to which Developer has agreed to purchase the DevelopmentProperty (as defined below)from the
City upon and subjectto the terms and conditions set forth therein, and as the same may hereafter
be further amended, modified or supplemented in accordance with its terms, collectively, the
DDA
The DDAis evidenced by that certain Memorandum of Tustin Legacy Disposition and
Development Agreement for Disposition Parcel 6B (as the same may hereafter be amended,
Memorandum of DDA
Recorded immediately prior to the Recordation of this Declaration. Capitalized terms not
otherwise defined herein shall have the meaning set forth for such terms in the DDA and such
terms are hereby incorporated by this reference.
E.Upon the Effective Date, Developeris acquiring the Development Property and has
agreed to develop the Project on the Development Parcels(as defined below)as a community of
Homeowners
certainprivately owned, Publicly Accessible CommonAreasand Publicly Accessible Common
Area Improvements, Landscape Areasand Private Streetsand Sidewalks that will be made
available to the public,and certainCommon Areas and Common Area Improvementsrestricted to
use by Homeowners pursuant to and in accordance with the DDAand the Final Map.
F.The City intends that each and every Property Owneruse and maintain the
DevelopmentProperty in accordance with this Declaration and the Restrictions and following the
completionof the Project pursuant to the DDA,as a High Quality Residential Project, as more
Property
particularly set forth hereinand in the DDA.
Owner
roperty or any
End
portion thereof, but shall specifically exclude
Users
(a)each Homebuyer who purchases a Home;(b)Association with
respect to any Common Areawithin theDevelopment Parcelsconveyed to the
Association,(c)any utility or Governmental Authority with respect to any transfer of portions of
the Property or grants of easements affecting the Development Parcels desirable for the
development of the Development Parcels,and/or (d)any lighting or landscaping district.
G.To create and preserve the value, desirability and attractiveness of the Development
Property, each Property Owner will hereafter hold and convey title to the Development Property
owned by it subject to those certain protective covenants, conditions and restrictions set forth
herein, which restrictions shall be applicable for the Term (defined below).
H.The City now desires to impose on the Development Property this Declaration, for
these purposes, among others: (a) to preserve the general plan for the use and maintenance of
Tustin Legacy, including of the Development Parcels, through development and maintenance of a
High Quality Residential Project upon the Development Parcels; (b) to ensure proper use and
maintenance of the Project; and (c) to protect each owner of the Development Property and nearby
owners and residents including the residents of the City of Tustin, from improper use of the
Development Property, in each case upon and subject to the terms of this Declaration.
I.This Declaration also sets forth those rights of the City and, upon acquisition by
Developer, certain obligations of Property Owner specified in the DDA or otherwise, each of
which shall remain in full force and effect for the applicable Term, notwithstanding the termination
of the DDA and/or the issuance by the City of a Certificate of Compliance for the Project.
NOW, THEREFORE, the City hereby covenants and declares that the Development
Parcels are now held and shall hereafter be held, transferred, conveyed, sold, leased, subleased,
encumbered, mortgaged, used, occupied and improved subject to the covenants, conditions and
restrictions herein set forth for the Term, each and all of which is and are for, and shall inure to the
benefit of and pass with, the Development Parcels and every portion of or interest in the Project
and shall apply to Declarant and each Property Owner, to the extent set forth herein, for the purpose
of uniformly enhancing and protecting the value, attractiveness and desirability of the
Development Parcels and Tustin Legacy in furtherance of a general plan for the protection,
maintenance, subdivision and improvement of Tustin Legacy or any portion thereof. For the Term
of this Declaration, the covenants, conditions and restrictions set forth in the Declaration shall run
with the Development Parcels,shall inure to the benefit of the City and its Governmental
Successors and shall burden and be binding upon the Development Parcels and Property Owner
andeach andevery Person claiming by,through or underany Property Owner,including, only
where specified below, each End User, and where not otherwise specified, excluding any End
Users.
The City hereby further declares as follows:
Property Affected by this Declaration
1.. The property affected by this Declaration is the
Development Property
,consisting of(a) the Land, but excepting therefrom the matters set forth
in Section 2 of that certain Quitclaim Deed For Disposition Parcels 6Band Covenants, Conditions
and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1472made
by the City in favor of Developer, dated as of even date herewith and recorded immediately
following the recordation of this Declaration(taking into account such exceptions, the
Development Parcels
; (b) all improvements, now existing or hereafter constructed, located on
theDevelopment Parcels, and (c) all appurtenances pertaining to theDevelopment Parcels.
Covenants, Conditions andRestrictions
2.: For the benefit of the Cityand its
Governmental Successors, and as an inducement for the City to consummate the transactions
contemplated by the DDA, but subject to Section 4.2of this Declaration, the violation of any of
the Restrictions
option constitute a Material Default hereunder and entitle the City to exercise any of the rights and
remedies set forth herein. The covenants, conditions, restrictionsand agreements set forth in this
Restrictions.
Use Covenants and Restrictions
2.1. From and after the acquisition of fee title to the
Property by Developer, Property Ownershall cause the Development Parcels to be developed (a)
only for lawful residential uses and such uses as are ancillary or incidental thereto and (b) as a
High Quality Residential Project.
Maintenance Covenants and Restrictions
2.2.
2.2.1From and after the acquisition of fee title to the Property byDeveloper,
Property Ownershall maintain the Horizontal Improvements and all buildings (including Homes),
structures, landscaping, Private Streetsand Sidewalks, and all other roads, drives, bike paths,
alleyways, sidewalks, utilities, Common Area,Common Area Improvements, Landscape
Improvements, courtyards, hardscaping, fountains and similar improvements constructed on the
Improvements
Parcels, consistent with the following requirements:
(a)Prior to commencement of construction, Property Owner shall be
responsible, at its sole cost and expense, (i)to secure and maintain the Development Property in a
clean, safe and secure condition, in compliance with all applicable laws, (ii)to abate weeds and
other hazards and nuisances on the Development Property, (iii)to erect and maintain barricades
and fencing, and provide security, in each case with respect to the Development Parcels as
reasonably necessary to protect the public and any Improvements already constructed, and (iv)to
maintain (in compliance with all Environmental Laws) erosion control on the Development
Parcels.
(b)From the date of commencement and during the continuance of
construction of any Improvements on the Development Parcels and until Completion thereof,
Property Owner shall maintain the Development Parcels and the Improvements thereon then under
construction consistent with normal and customary construction industry practice.
(c)From and after the issuance of acertificate of occupancy for any
Improvements and prior to the transfer thereof by Property Owner to an End User, Property Owner
shall maintain all Improvements on the Development Parcels not then under construction in a
clean, sanitary, orderly and attractive condition, and in accordance with High Quality Residential
Standards, subject to reasonable wear and tear, and in accordance with the requirements of the
Landscape Maintenance Agreement and, further subject to Section 2.2.1(e)of this Declaration,
with respect to change or damage by casualty or condemnation. Property Owner shall be required
to meet the standard for the quality of maintenance of the Improvements on the Development
Parcels required by this Section 2.2.1(c) of this Declaration regardless of whether or not a specific
item of maintenance is listed below, except that, in each case, and notwithstanding anything in this
Section 2.2.1 of this Declarationto the contrary, Property Owner shall not have any maintenance
obligation with respect to any (x)Completed Improvements owned or controlled by (or on
property owned or maintained by) any or(y) with
respect to any Completed Improvements owned by any utility, Governmental Authority, lighting
or landscapedistrict or, except as set forth in the Landscape Maintenance Agreement, by the City.
Representative items of maintenance shall include: (i)maintenance, repair and replacement on a
regular schedule, consistent with High Quality Residential Standards, ofall Improvements;
(ii)regular inspection for graffiti or damage or deterioration or failure, and reasonably prompt (or,
in the case of graffiti, within 48 hours) repainting or repair or replacement of all surfaces, fencing,
walls, equipment, etc., as necessary; (iii)emptying of trash receptacles and removal of litter;
(iv)regular sweeping of Private Streets and Sidewalks throughout the Development Parcels;
(v)fertilizing, irrigating, trimming and replacing vegetation and other Landscaping Improvements
as necessary; (vi) cleaning exterior windows on a regular basis; (vii)painting the buildings on a
regular program and prior to the deterioration of the painted surfaces; and (viii)conducting roof
inspections on a regular basis and maintaining roofs in a leak-free and weather-tight condition.
(d)Except as otherwise provided in this Section, the maintenance
responsibilities of all Property Owners shall be vested in one entity at any given time during the
ofthis Declaration shall terminate with
respect to any portion of the Development Propertytransferred to an End User and such
termination shall be effective automatically upon such transfer. With respect to those portions of
the Development Propertynot yet transferred to an End User, Property Owner shall have the right
(i)
to be created through the CC&Rs,upon which assignment Property Owner shall have no further
liability under this Section 2.2.1, and (ii)to subcontract its maintenance responsibilities under this
operty
management company provided that such subcontracting shall not relieve Property Owner of any
liability for its obligations under this Section 2.2.1.
(e)In the event of casualty, Property Owner shall, in its sole discretion,
either (i) promptly repair the Improvements and prior to commencement of such repair maintain
the portions of the Development Property subject to casualty in accordance with Section 2.2.1(b)
of this Declaration or (ii) if Property Owner determines in its sole discretion not to repairsuch
Improvements, maintain the portions of the Development Property subject to casualty in
accordance with Section 2.2.1(a)of this Declaration. In each case, upon commencement of any
construction with respect to the affected portions of the DevelopmentProperty and until
completion of the repair work, Property Owner shall comply with the requirements set forth in
Section 2.2.1(b) of this Declaration and upon completion of the repair work, shall comply with the
requirements set forth in Section 2.2.1(c)of this Declaration. Notwithstanding the foregoing, the
portions of the Development Property unaffected by any such casualty shall be maintained as
otherwise required by this Declaration and, including pursuant to Section 2.2.1(c)of this
Declaration, andunless not economically feasible due to cost or physical proximity as
demonstrated to the reasonable satisfaction of the City, Property Owner shall provide landscaping
or other barriers to shield the portions of the Development Property remaining in use and adjacent
public roadways from those subject to casualty in order to maintain the unaffected portions of the
Development Parcels and the Improvements thereon as required pursuant to
Section2.2.1(a),(b)and/or(c)of this Declaration, as applicable.
2.2.2If Property Owner fails to maintain the Development Property or any
portion thereof in accordance with the requirements of this Declaration and the same constitutes a
Material Default by Property Owner hereunder, the City or its designee shall have the right,but
not the obligation,to enter the Development Property upon reasonable notice to Property Owner,
correct such failure, and hold Property Owner responsible for the cost thereof and such cost, until
paid, shall constitute a lien on the applicable portionof the Development Property as and to the
extent described in Section 4.6of this Declaration.
Profit Participation Price
2.3. Developer, its successors and assignsand Successor
Ownersshall pay to the City the Profit Participation Price pursuant to the terms and conditions of
the Profit Participation Agreement executed by the Parties.
Obligation to Refrain from Discrimination
2.4. There shall be no discrimination
against or segregation of any person, or group of persons, on account of sex, race, color, religion,
ancestry, national origin, disability, medical condition, marital status, or sexual orientation in the
sale, lease, transfer, use, occupancy, tenure or enjoyment of the Development Property or in
development of the Project, nor shall Property Owner 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 Development Property or
in development of the Project.The provisions of this Section 2.4 shall be binding upon Developer,
each Successor Owner and each and every Person claiming by, through or under Developer or any
Successor Owner,including each End User.
DDA Provisions
2.5. Pursuant to the DDA, the City has imposed certain covenants,
conditions and restrictions on the Development Property, including the releases contained in
Section 4.5.2 of the DDA, and certain environmental indemnity and environmental provisions,
each of which is set forth verbatimbelow in italics and each of which is hereby declared to be a
covenant running with the land, binding Developer and each Successor Ownerand each and every
Person claiming by, through or under Developer or any Successor Owner (but in each case
excluding any End Users unless otherwise specifically set forth below) for the Term of this
Declarationand for such longer period as is established by the DDA and/or the Quitclaim Deed,
as applicable. Within the italicized language which follows, section references shall be to sections
of the DDA and certain terms shall have the following meanings and the remaining terms shall
e DDA as defined in
which the City shall convey the Property to Developer at the Close of Escrow, which shall be
Recorded immediately following Recording of this Declaration; and
Declaration.
Releases
2.5.1.Section 4.5.2(f)of the DDA provides as follows:
[[599,2620,786,2677][12][B,I,][Times New Roman]]Release
(f). [[792,2621,2300,2678][12][,I,][Times New Roman]]Developer, on behalf of itself, each Successor Owner and each and every
[[448,2678,2299,2735][12][,I,][Times New Roman]]Person claiming by, through or under Developer or any Successor Owner and including,
[[449,2736,682,2793][12][,I,][Times New Roman]]without li [[2051,2736,2300,2793][12][,I,][Times New Roman]]Releasing
[[448,2793,589,2850][12][,I,][Times New Roman]]Party
[[448,2851,2299,2908][12][,I,][Times New Roman]]Escrow, the right of each Developer Releasing Party to recover from, and fully and
[[450,300,644,357][12][,I,][Times New Roman]]irrevoca [[619,300,1081,357][12][,I,][Times New Roman]]bly releases, the City [[1040,300,1407,357][12][,I,][Times New Roman]]Released Parties
[[1377,300,2300,357][12][,I,][Times New Roman]]from any and all Claims that any Developer
[[448,358,2300,415][12][,I,][Times New Roman]]Releasing Party may now have or hereafter suffer or acquire arising from or related to: (i)
[[450,416,2111,473][12][,I,][Times New Roman]]any Due Diligence Information, (ii) any condition of the Property or any current [[2074,416,2300,473][12][,I,][Times New Roman]]or future
[[450,473,2299,530][12][,I,][Times New Roman]]improvement thereon, known or unknown by any Developer Releasing Party or any City
[[448,531,2299,588][12][,I,][Times New Roman]]Released Party, including as to the extent or effect of any grading of the Development
[[448,588,2020,645][12][,I,][Times New Roman]]Parcels; (iii) any construction defects, errors, omissions or other conditio [[1996,588,2300,645][12][,I,][Times New Roman]]ns, latent or
[[450,646,2299,703][12][,I,][Times New Roman]]otherwise; (iv) economic and legal conditions on or affecting the Property or any
[[450,703,2299,760][12][,I,][Times New Roman]]improvements thereon; (v) Environmental Matters, including the existence, Release,
[[450,761,2133,818][12][,I,][Times New Roman]]threatened Release, presence, storage, treatment, transportation or disposal [[2112,761,2300,818][12][,I,][Times New Roman]]of any
[[448,818,2299,875][12][,I,][Times New Roman]]Hazardous Materials at any time on, in, under, or from, the Property or any current or
[[441,876,2299,933][12][,I,][Times New Roman]]future improvement thereon or any portion thereof; (vi) Claims of or acts or omissions to
[[450,933,1951,990][12][,I,][Times New Roman]]act of any Governmental Authority or any other third party arising from [[1915,933,2300,990][12][,I,][Times New Roman]]or related to any
[[450,991,2299,1048][12][,I,][Times New Roman]]actual, threatened, or suspected Release of a Hazardous Material on, in, under, or from or
[[450,1048,2299,1105][12][,I,][Times New Roman]]about the Property or any current or future improvement thereon, including any
[[448,1106,2058,1163][12][,I,][Times New Roman]]Investigation or Remediation at or about the Property or any current [[2055,1106,2300,1163][12][,I,][Times New Roman]]or future
[[450,1163,2300,1220][12][,I,][Times New Roman]]improvement thereon; and/or (vii) arising from the Tustin Legacy Backbone Infrastructure
[[448,1221,2299,1278][12][,I,][Times New Roman]]Program, any community facilities district, service district or assessment district the cost
[[450,1278,1750,1335][12][,I,][Times New Roman]]or extent thereof, or the amount of the Project Fair Share Cont [[1715,1278,2300,1335][12][,I,][Times New Roman]]ribution or any community
[[441,1336,2299,1393][12][,I,][Times New Roman]]facilities district, service district or assessment district assessment against the
[[448,1393,2299,1450][12][,I,][Times New Roman]]Development Parcels described in this Agreement or the DA; provided that the foregoing
[[450,1451,1661,1508][12][,I,][Times New Roman]]release by the Developer Releasing Parties shall not extend [[1648,1451,2300,1508][12][,I,][Times New Roman]]to the extent of (A) any
breach
[[450,1508,2299,1565][12][,I,][Times New Roman]]by the City of any of the representations or warranties of the City set forth in Sections 3.3
[[450,1566,2299,1623][12][,I,][Times New Roman]]or 17.12 of this Agreement, (B) any breach by the City of any of the covenants or
[[450,1623,1415,1680][12][,I,][Times New Roman]]obligations set forth in this Agreement or any [[1379,1623,2300,1680][12][,I,][Times New Roman]]Other Agreement, (C) any Claim that is
the
[[450,1681,2299,1738][12][,I,][Times New Roman]]result of the gross negligence, willful misconduct or fraud of the City Released Parties, (D)
[[450,1738,2299,1795][12][,I,][Times New Roman]]any actions of the City Released Parties which occur following the Close of Escrow with
[[450,1796,1095,1853][12][,I,][Times New Roman]]respect to the Property, or (E) [[1076,1796,2300,1853][12][,I,][Times New Roman]]any other Claims against City relating to or arising
out of
[[450,1853,2300,1910][12][,I,][Times New Roman]]tort Claims brought by third parties against Developer, to the extent such claims are based
[[450,1911,2299,1968][12][,I,][Times New Roman]]upon the Active Negligence of the City Released Parties and Accruing prior to the Close
[[450,1968,801,2025][12][,I,][Times New Roman]]of Escrow; prov [[773,1968,2299,2025][12][,I,][Times New Roman]]ided that the exceptions in clauses (C) and (E) above shall not apply with
[[450,2026,2299,2083][12][,I,][Times New Roman]]respect to any matter for which the City is indemnified pursuant to Section 5.5 or Section
[[450,2083,2299,2140][12][,I,][Times New Roman]]10.2. This release includes Claims of which Developer is presently unaware or which
[[448,2141,602,2198][12][,I,][Times New Roman]]Devel [[566,2141,2299,2198][12][,I,][Times New Roman]]oper does not presently suspect to exist which, if known by Developer, would
[[449,2256,2226,2313][12][,I,][Times New Roman]]waives the provision of California Civil Code Section 1542, which provides as follows:
[[750,2428,2149,2485][12][,I,][Times New Roman]]WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
[[748,2486,2149,2543][12][,I,][Times New Roman]]EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
[[750,2543,2149,2600][12][,I,][Times New Roman]]THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
[[748,2601,2149,2658][12][,I,][Times New Roman]]HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
[[448,2766,2300,2823][12][,I,][Times New Roman]]In this connection and to the extent permitted by law, Developer on behalf of itself, and the
[[450,2823,2300,2880][12][,I,][Times New Roman]]other Developer Releasing Parties hereby agrees that (x) it realizes and acknowledges that
[[441,2881,1949,2938][12][,I,][Times New Roman]]factual matters now unknown to it may have given or may hereafter give [[1912,2881,2300,2938][12][,I,][Times New Roman]]rise to Claims
or
[[450,300,2299,357][12][,I,][Times New Roman]]controversies which are presently unknown, unanticipated and unsuspected; (y) the
[[449,358,2299,415][12][,I,][Times New Roman]]waivers and releases in this Section 4.5.2(f) have been negotiated and agreed upon in light
[[450,416,1694,473][12][,I,][Times New Roman]]of that realization and (z) Developer, on behalf of itself and t [[1658,416,2300,473][12][,I,][Times New Roman]]he other Developer Releasing
[[448,473,2299,530][12][,I,][Times New Roman]]Parties, nevertheless hereby intends to release, discharge and acquit the City Released
[[448,531,2223,588][12][,I,][Times New Roman]]Parties from any such unknown Claims and controversies to the extent set forth above.
[[761,646,2150,703][12][,I,][Times New Roman]]BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES
[[750,703,965,760][12][,I,][Times New Roman]]THAT (A [[940,703,2149,760][12][,I,][Times New Roman]]) IT HAS READ AND FULLY UNDERSTANDS THE
[[748,761,2149,818][12][,I,][Times New Roman]]PROVISIONS OF THIS SECTION, (B) IT HAS HAD THE CHANCE
[[750,818,2149,875][12][,I,][Times New Roman]]TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS MEANING
[[747,876,2149,933][12][,I,][Times New Roman]]AND SIGNIFICANCE, AND (C) IT HAS ACCEPTED AND
[[747,933,2011,990][12][,I,][Times New Roman]]AGREED TO THE TERMS SET FORTH IN THIS SECTION.
[[749,1041,1250,1098][12][,I,][Times New Roman]]___________________ [[1224,1041,1325,1098][12][,I,][Times New Roman]]___ [[1499,1041,2100,1098][12][,I,][Times New Roman]]_______________________
[[448,1223,2300,1280][12][,I,][Times New Roman]]From and after the acquisition of the Development Parcels by Developer, this release shall
[[450,1280,2300,1337][12][,I,][Times New Roman]]run with the land for the benefit of the City and its Governmental Successors and burdening
[[450,1338,580,1395][12][,I,][Times New Roman]]the D [[566,1338,2299,1395][12][,I,][Times New Roman]]evelopment Parcels and Developer and the Successor Owners owning all or any
[[443,1395,2299,1452][12][,I,][Times New Roman]]portion of the Development Parcels and all Persons claiming by, through or under
[[448,1453,2299,1510][12][,I,][Times New Roman]]Developer or any Successor Owner of the Development Parcels or such portion thereof,
[[450,1510,785,1567][12][,I,][Times New Roman]]including each [[786,1510,2299,1567][12][,I,][Times New Roman]]End User, and to further evidence its effectiveness with respect to
[[448,1568,2299,1625][12][,I,][Times New Roman]]Developer and the Successor Owners of the Development Parcels, shall be included in its
[[450,1625,2300,1682][12][,I,][Times New Roman]]entirety in the Quitclaim Deed. The provisions of this Section 4.5.2 shall survive the Close
[[450,1683,593,1740][12][,I,][Times New Roman]]of Es [[563,1683,2299,1740][12][,I,][Times New Roman]]crow and the termination of this Agreement and shall not be merged with the
[[450,1740,793,1797][12][,I,][Times New Roman]]Quitclaim Deed
Local, State and Federal Laws
2.5.2. The applicableportion of Section 8.15of
the DDA provides as follows:
[[478,2013,607,2070][12][,I,][Times New Roman]]. . . [[577,2013,817,2070][12][,I,][Times New Roman]]Developer [[807,2013,1232,2070][12][,I,][Times New Roman]]hereby agrees that [[1196,2013,1246,2070
][12][,I,][Times New Roman]], [[1229,2013,2082,2070][12][,I,][Times New Roman]]with respect to the Project, Developer [[2053,2013,2200,2070][12][,I,][Times New Roman]]shall [[2172,2013,2313,2070][1
2][,I,][Times New Roman]]. . .
[[450,2070,2299,2127][12][,I,][Times New Roman]]indemnify, defend and hold the City and its elected and appointed officials, employees,
[[450,2128,2299,2185][12][,I,][Times New Roman]]agents, attorneys, affiliates, representatives, contractors, successors and assigns free and
[[450,2185,973,2242][12][,I,][Times New Roman]]harmless from and agai [[937,2185,2299,2242][12][,I,][Times New Roman]]nst any and all Claims arising from or related to compliance by
[[450,2300,2299,2357][12][,I,][Times New Roman]]consultants and/or contractors (at every tier) in construction of the Project with the
[[443,2358,972,2415][12][,I,][Times New Roman]]prevailing wage require [[945,2358,2312,2415][12][,I,][Times New Roman]]ments imposed by any applicable federal and State labor laws.
Liens, Taxes and Assessments
2.5.3. Section 8.16of the DDA provides as
follows:
[[475,2688,587,2745][12][B,I,][Times New Roman]]8.16 [[586,2688,1035,2745][12][B,I,][Times New Roman]]Liens, Taxes and As [[1005,2688,1238,2745][12][B,I,][Times New Roman]]sessments
[[450,2860,1944,2917][12][,I,][Times New Roman]]and levied on or against all portions of the Property or the Improvements [[1904,2860,2300,2917][12][,I,][Times New Roman]]during the
period
[[450,300,1182,357][12][,I,][Times New Roman]]of ownership thereof by Developer [[1152,300,1791,357][12][,I,][Times New Roman]]. Developer shall not place, o [[1766,300,2300,357][12][,I,][Times
New Roman]]r allow to be placed, on
[[450,358,2299,415][12][,I,][Times New Roman]]its interests in the Property, or any Lot or Home, or any portion thereof, any Mortgage or
[[450,416,2299,473][12][,I,][Times New Roman]]encumbrance of lien not authorized by this Agreement. Developer shall remove, or shall
[[450,473,1663,530][12][,I,][Times New Roman]]have removed, any levy or attachment made on its int [[1628,473,2300,530][12][,I,][Times New Roman]]erests in the Property or the
[[448,531,2300,588][12][,I,][Times New Roman]]Improvements (or any portion thereof), or shall assure the satisfaction thereof within thirty
[[450,588,2163,645][12][,I,][Times New Roman]](30) calendar days following receipt of notice thereof. Except as set forth in Section [[2151,588,2301,645][12][,I,][Times New Roman]]8.7.2
[[450,646,717,703][12][,I,][Times New Roman]]and Section [[705,646,1269,703][12][,I,][Times New Roman]]8.7.3(g), nothing containe [[1241,646,2300,703][12][,I,][Times New Roman]]d in
this Agreement shall be deemed to prohibit
[[448,703,1993,760][12][,I,][Times New Roman]]Developer from contesting the validity or amount of any tax or assessment [[1972,703,2300,760][12][,I,][Times New Roman]]or to limit the
[[450,761,1500,818][12][,I,][Times New Roman]]remedies available to Developer in respect thereto. [[1481,761,2300,818][12][,I,][Times New Roman]]Developer hereby agrees to indemnify,
[[450,818,1084,875][12][,I,][Times New Roman]]defend and hold the City an [[1059,818,2299,875][12][,I,][Times New Roman]]d its elected and appointed officials, employees, agents,
[[450,876,2299,933][12][,I,][Times New Roman]]attorneys, affiliates, representatives, contractors, successors and assigns free and
[[450,933,2299,990][12][,I,][Times New Roman]]harmless from and against any and all Claims arising with respect to payment of liens,
[[450,991,1033,1048][12][,I,][Times New Roman]]taxes and assessments asse [[1005,991,2299,1048][12][,I,][Times New Roman]]ssed or levied against the Property and/or the Improvements
[[450,1048,2299,1105][12][,I,][Times New Roman]]during the period of ownership thereof by Developer. The indemnity set forth in this
[[450,1106,1598,1163][12][,I,][Times New Roman]]Section shall survive the termination of this Agreement.
Indemnity
2.5.4.Section 10.1of the DDA provides as follows:
[[475,1320,633,1377][12][B,I,][Times New Roman]]10.1
[[1202,1321,1284,1378][12][,I,][Times New Roman]]. [[1252,1321,2300,1378][12][,I,][Times New Roman]]As a material part of the consideration for this
[[447,1378,1332,1435][12][,I,][Times New Roman]]Agreement, effective upon Close of Escrow [[1317,1378,2300,1435][12][,I,][Times New Roman]], and to the maximum extent permitted by law,
[[448,1436,2299,1493][12][,I,][Times New Roman]]Developer shall indemnify, protect, defend, assume all responsibility for and hold harmless
[[450,1493,2299,1550][12][,I,][Times New Roman]]the City Indemnified Parties, from and against any and all Claims to the extent caused by
[[450,1551,738,1608][12][,I,][Times New Roman]]the following [[713,1551,763,1608][12][,I,][Times New Roman]]:
[[600,1658,691,1715][12][,I,][Times New Roman]](a) [[1043,1658,2045,1715][12][,I,][Times New Roman]]arketing, sale or use of the Property in any way;
[[600,1766,691,1823][12][,I,][Times New Roman]](b) [[747,1766,2222,1823][12][,I,][Times New Roman]]All acts and omissions of Developer in connection with the Project, the
[[598,1823,1979,1880][12][,I,][Times New Roman]]Property, the Improvements or any portion of any of the foregoing;
[[600,1931,689,1988][12][,I,][Times New Roman]](c) [[747,1931,2148,1988][12][,I,][Times New Roman]]Any plans or designs for Improvements prepared by or on behalf of
[[598,1988,650,2045][12][,I,][Times New Roman]]D [[636,1988,2150,2045][12][,I,][Times New Roman]]eveloper, including any errors or omissions with respect to such plans or
[[600,2046,800,2103][12][,I,][Times New Roman]]designs;
[[600,2153,691,2210][12][,I,][Times New Roman]](d) [[747,2153,2292,2210][12][,I,][Times New Roman]]Any loss or damage to the City resulting from any inaccuracy in or breach
[[600,2211,2229,2268][12][,I,][Times New Roman]]of any representation or warranty of Developer, or resulting from any Default,
[[600,2268,1039,2325][12][,I,][Times New Roman]]including Material D [[1025,2268,1953,2325][12][,I,][Times New Roman]]efault, by Developer, under this Agreement;
[[600,2376,689,2433][12][,I,][Times New Roman]](e) [[750,2376,924,2433][12][,I,][Times New Roman]]the non [[899,2376,949,2433][12][,I,][Times New Roman]]- [[908,2376,2060,2433][12][,I,][Times
New Roman]]performance or breach by Developer or the Developer
[[598,2433,1916,2490][12][,I,][Times New Roman]]Representatives, of any term or condition of this Agreement; or
[[600,2541,680,2598][12][,I,][Times New Roman]](f) [[747,2541,877,2598][12][,I,][Times New Roman]]Any [[840,2541,2254,2598][12][,I,][Times New Roman]]development or construction of
Improvements or other structures or
[[591,2598,894,2655][12][,I,][Times New Roman]]facilities by D
[[600,2656,2170,2713][12][,I,][Times New Roman]]quality, adequacy or suitability of any labor, service, equipment or material
[[591,2713,2088,2770][12][,I,][Times New Roman]]furnished to the Property, any Person furnishing the same, or otherwise.
[[448,2821,1363,2878][12][,I,][Times New Roman]]Notwithstanding anything to the contrary [[1335,2821,2300,2878][12][,I,][Times New Roman]]set forth in this Section 10.1, the foregoing
[[450,2878,2300,2935][12][,I,][Times New Roman]]indemnities shall not apply to and Developer shall not be obligated to indemnify any of the
[[450,300,2300,357][12][,I,][Times New Roman]]City Indemnified Parties with respect to the foregoing to the extent such Claims are a result
[[450,358,977,415][12][,I,][Times New Roman]]of: (i) any breach of a [[953,358,2300,415][12][,I,][Times New Roman]]ny covenant or representation or warranty by City under this
[[447,416,2299,473][12][,I,][Times New Roman]]Agreement, (ii) the gross negligence, willful misconduct or fraud of City or any City
[[448,473,2299,530][12][,I,][Times New Roman]]Indemnified Party; or (iii) any other Claims against the City relating to or arising out of
[[450,531,830,588][12][,I,][Times New Roman]]tort Claims broug [[806,531,2300,588][12][,I,][Times New Roman]]ht by third parties against Developer, to the extent such claims are based
[[450,588,2299,645][12][,I,][Times New Roman]]upon the Active Negligence of the City or any City Indemnified Party and Accruing prior
[[450,646,2299,703][12][,I,][Times New Roman]]to the Close of Escrow. This indemnity shall remain in effect for the period specified in
[[450,703,525,760][12][,I,][Times New Roman]]Se [[497,703,1857,760][12][,I,][Times New Roman]]ction 10.3 and shall be subject to the other terms set forth therein.
Environmental Indemnity
2.5.5. Section 10.2of the DDA provides as follows:
[[475,917,637,974][12][B,I,][Times New Roman]]10.2 [[611,917,1187,974][12][B,I,][Times New Roman]]Environmental Indemnity
[[1159,918,1246,975][12][,I,][Times New Roman]]. [[1218,918,2300,975][12][,I,][Times New Roman]]As a material part of the consideration for this
[[447,976,1152,1033][12][,I,][Times New Roman]]Agreement, and effective as of t [[1116,976,2299,1033][12][,I,][Times New Roman]]he Close of Escrow, Developer on behalf of itself and
[[450,1033,2300,1090][12][,I,][Times New Roman]]Successor Owners and each and every Person claiming by, through or under Developer or
[[450,1091,2299,1148][12][,I,][Times New Roman]]any Successor Owner, hereby agrees that Developer and each Successor Owner shall, to
[[450,1148,1135,1205][12][,I,][Times New Roman]]the maximum extent permitted by [[1119,1148,2300,1205][12][,I,][Times New Roman]]law, indemnify, protect, defend, assume all responsibility
[[441,1206,2299,1263][12][,I,][Times New Roman]]for and hold harmless the City Indemnified Parties from and against any and all Claims
[[450,1263,2299,1320][12][,I,][Times New Roman]]resulting or arising from or in any way connected with the existence, Release, threatened
[[448,1321,875,1378][12][,I,][Times New Roman]]Release, presence, [[843,1321,2300,1378][12][,I,][Times New Roman]]storage, treatment, transportation and/or disposal of any Hazardous
[[446,1378,2299,1435][12][,I,][Times New Roman]]Materials on, in or under the Property, or migrating from the Property to adjacent
[[443,1436,2299,1493][12][,I,][Times New Roman]]properties regardless whether any such condition is known or unknown now or upon
[[450,1493,991,1550][12][,I,][Times New Roman]]acquisition and regardle [[964,1493,1783,1550][12][,I,][Times New Roman]]ss of whether any such condition pre [[1755,1493,1805,1550][12][,I,][Times
New Roman]]- [[1772,1493,2300,1550][12][,I,][Times New Roman]]exists acquisition or is
[[450,1551,2299,1608][12][,I,][Times New Roman]]subsequently caused, created or occurring; provided that neither Developer nor any
[[450,1608,2300,1665][12][,I,][Times New Roman]]Successor Owner shall be responsible (and such indemnity shall not apply) to the extent of
[[450,1666,942,1723][12][,I,][Times New Roman]](a) any breach of an [[913,1666,2300,1723][12][,I,][Times New Roman]]y covenant or representation or warranty by City under this
[[447,1723,2299,1780][12][,I,][Times New Roman]]Agreement; (b) the gross negligence, willful misconduct or fraud of City or any City
[[448,1781,2300,1838][12][,I,][Times New Roman]]Indemnified Party; or (c) to the extent of the Active Negligence or willful misconduct of the
[[815,1838,2299,1895][12][,I,][Times New Roman]]s employees, contractors or consultants with respect to Hazardous
[[446,1896,2299,1953][12][,I,][Times New Roman]]Materials occurring prior to the Close of Escrow with respect to work performed by such
[[448,1953,2299,2010][12][,I,][Times New Roman]]Persons on the Development Parcels. This indemnity shall remain in effect for the period
[[450,2011,709,2068][12][,I,][Times New Roman]]specified in [[702,2011,2300,2068][12][,I,][Times New Roman]]Section 10.3 and shall be subject to the other terms set forth therein. This
[[450,2068,2299,2125][12][,I,][Times New Roman]]indemnity shall not be deemed to limit in any manner the rights and/or remedies that City,
[[448,2126,2299,2183][12][,I,][Times New Roman]]Developer or Successor Owners may have against the Federal Government as described
[[450,2183,514,2240][12][,I,][Times New Roman]]in [[502,2183,774,2240][12][,I,][Times New Roman]]Section 4.1.
Duration of Indemnities
2.5.6. The applicable portion of Section 10.3of the
DDA provides as follows:
[[475,2455,587,2512][12][B,I,][Times New Roman]]10.3 [[587,2455,1119,2512][12][B,I,][Times New Roman]]Duration of Indemnities
[[1089,2456,2300,2513][12][,I,][Times New Roman]]. The obligations of Developer with respect to each of the
[[450,2513,1462,2570][12][,I,][Times New Roman]]indemnities set forth in Sections . . . 8.15, 8.16, 10 [[1437,2513,2300,2570][12][,I,][Times New Roman]].1 and 10.2 . . .shall (a) survive
the Close
[[450,2571,2300,2628][12][,I,][Times New Roman]]of Escrow and shall not merge into the Quitclaim Deed, (b) survive the sale of land to each
[[448,2628,1171,2685][12][,I,][Times New Roman]]End User and the issuance of the [[1135,2628,1686,2685][12][,I,][Times New Roman]]Certificate of Compliance [[1658,2628,2299,2685][12][,I,][Times
New Roman]], and (c) until the date that is
[[450,2686,1837,2743][12][,I,][Times New Roman]]ten (10) years following issuance of the Certificate of Compliance, [[1801,2686,2300,2743][12][,I,][Times New Roman]]continue to be binding
[[448,2801,1551,2858][12][,I,][Times New Roman]]Developer not released by the City pursuant to Sectio [[1527,2801,2299,2858][12][,I,][Times New Roman]]n 2.2.3(c) and each such party
shall
[[450,2858,2299,2915][12][,I,][Times New Roman]]be jointly and severally liable under such provisions with respect to the entirety of the
[[448,300,985,357][12][,I,][Times New Roman]]Project and the Property [[958,300,1008,357][12][,I,][Times New Roman]]. [[986,300,1473,357][12][,I,][Times New Roman]]. . . The provisions
of [[1439,300,1489,357][12][,I,][Times New Roman]][ [[1459,300,1562,357][12][,I,][Times New Roman]]this [[1526,300,1580,357][12][,I,][Times New Roman]]] [[1567,300,1739,357][12][,I,][Times
New Roman]]Section [[1730,300,1836,357][12][,I,][Times New Roman]]. . . [[1814,300,2300,357][12][,I,][Times New Roman]]10.3 shall survive the
[[450,358,1098,415][12][,I,][Times New Roman]]termination of this Agreement.
Claims Response
2.5.7.Section 10.4of the DDA provides as follows:
[[475,572,642,629][12][B,I,][Times New Roman]]10.4 [[622,572,1018,629][12][B,I,][Times New Roman]]Claims Response
[[990,573,1082,630][12][,I,][Times New Roman]]. [[1059,573,2299,630][12][,I,][Times New Roman]]In the event that following the Close of Escrow, any
[[448,631,2299,688][12][,I,][Times New Roman]]Environmental Agency or other third party brings, makes, alleges, or asserts a Claim,
[[450,688,1137,745][12][,I,][Times New Roman]]arising from or related to any [[1109,688,2300,745][12][,I,][Times New Roman]]actual, threatened, or suspected Release of Hazardous
[[446,746,2299,803][12][,I,][Times New Roman]]Materials on or about the Property, including any Claim for Investigation or Remediation
[[450,803,2299,860][12][,I,][Times New Roman]]on the Property, or such Environmental Agency or other third party orders, demands, or
[[450,861,1012,918][12][,I,][Times New Roman]]otherwise requires that an [[982,861,2299,918][12][,I,][Times New Roman]]y Investigation or Remediation be conducted on the Property,
[[448,918,2299,975][12][,I,][Times New Roman]]Developer shall promptly upon its receipt of notice thereof, notify the City in writing and
[[450,976,2300,1033][12][,I,][Times New Roman]]thereafter shall promptly and responsibly evaluate and respond to such Claim as provided
[[450,1033,776,1090][12][,I,][Times New Roman]]in Section 10. [[739,1033,2300,1090][12][,I,][Times New Roman]]5. Further, upon receipt of such Claim, order, demand or requirement,
[[448,1091,2299,1148][12][,I,][Times New Roman]]Developer shall take such reasonable measures, as necessary or appropriate, to
[[450,1148,2299,1205][12][,I,][Times New Roman]]reasonably dissuade such Environmental Agency or other third party from bringing,
[[450,1206,971,1263][12][,I,][Times New Roman]]making, alleging, or ass [[941,1206,2299,1263][12][,I,][Times New Roman]]erting any Claim against the City arising from or related to any
[[450,1263,2300,1320][12][,I,][Times New Roman]]actual, threatened, or suspected Release of Hazardous Material on or about the Property,
[[450,1321,2300,1378][12][,I,][Times New Roman]]including any Claim for Investigation or Remediation on the Property; provided that such
[[450,1378,739,1435][12][,I,][Times New Roman]]obligation sh [[714,1378,2299,1435][12][,I,][Times New Roman]]all not apply to those excluded Claims set forth as (a) through (c) of Section
[[450,1436,587,1493][12][,I,][Times New Roman]]10.2.
Release Notification and Remedial Actions
2.5.8. Section 10.5of the DDA
provides as follows:
[[475,1707,624,1764][12][B,I,][Times New Roman]]10.5 [[585,1707,1496,1764][12][B,I,][Times New Roman]]Release Notification and Remedial Actions
[[1466,1708,1516,1765][12][,I,][Times New Roman]]. [[1499,1708,2086,1765][12][,I,][Times New Roman]]If, after Close of Escrow, an [[2057,1708,2301,1765][12][,I,][Times New Roman]]y Release
[[450,1766,2300,1823][12][,I,][Times New Roman]]of a Hazardous Material is discovered on the Property, Developer shall promptly provide
[[449,1823,2299,1880][12][,I,][Times New Roman]]written notice (or in the event of emergency, telephonic notice, followed by written notice)
[[450,1881,1132,1938][12][,I,][Times New Roman]]of any such Release to the City. [[1108,1881,1767,1938][12][,I,][Times New Roman]]To the extent that any Environm [[1753,1881,2300,1938][12][,I,][Time
s New Roman]]ental Agency (other than
[[450,1938,2299,1995][12][,I,][Times New Roman]]the City) is requiring that the City Remediate such Release and Developer acknowledges
[[450,1996,2299,2053][12][,I,][Times New Roman]]that it is obligated to assume responsibility or indemnify the City with respect to such
[[448,2053,1630,2110][12][,I,][Times New Roman]]Release pursuant to Section 10.2 or there is a good fai [[1595,2053,2300,2110][12][,I,][Times New Roman]]th dispute between the City and
[[448,2111,2299,2168][12][,I,][Times New Roman]]Developer as to whether Developer is obligated to assume responsibility or indemnify the
[[450,2168,2299,2225][12][,I,][Times New Roman]]City with respect to such Release pursuant to Section 10.2, then Developer shall (a)
[[448,2226,1547,2283][12][,I,][Times New Roman]]Remediate the Release in compliance with and to th [[1523,2226,2300,2283][12][,I,][Times New Roman]]e extent required by Environmental
[[448,2283,2299,2340][12][,I,][Times New Roman]]Laws and such Environmental Agency, or if such removal is prohibited by any
[[448,2341,2300,2398][12][,I,][Times New Roman]]Environmental Laws, take whatever action is required by any Environmental Law and such
[[448,2398,1695,2455][12][,I,][Times New Roman]]Environmental Agency; (b) take such other reasonable actio [[1671,2398,2300,2455][12][,I,][Times New Roman]]n as is necessary to have
the
[[441,2456,2300,2513][12][,I,][Times New Roman]]full use and benefit of the Property as contemplated by this Agreement; and (c) provide the
[[450,2513,2299,2570][12][,I,][Times New Roman]]City with satisfactory evidence of the actions taken as required in this Section. To the
[[450,2571,1439,2628][12][,I,][Times New Roman]]extent that any Environmental Agency (other [[1410,2571,2299,2628][12][,I,][Times New Roman]]than the City) is requiring that the City
[[448,2628,2299,2685][12][,I,][Times New Roman]]Remediate such Release and the City acknowledges that Developer is not obligated to
[[450,2686,2299,2743][12][,I,][Times New Roman]]assume responsibility or indemnify the City with respect to such Release pursuant to
[[450,2743,1444,2800][12][,I,][Times New Roman]]Section 10.2 or no Environmental Agency (othe [[1416,2743,2299,2800][12][,I,][Times New Roman]]r than the City) is requiring that the
City
[[448,2801,2299,2858][12][,I,][Times New Roman]]Remediate such Release, then (as between Developer and the City under this Agreement)
[[448,2858,2299,2915][12][,I,][Times New Roman]]Developer may elect in its sole and absolute discretion whether to Remediate such Release
[[450,300,1235,357][12][,I,][Times New Roman]]and/or pursue any rights that Develo [[1204,300,2299,357][12][,I,][Times New Roman]]per has against any Person (including the Federal
[[450,358,2299,415][12][,I,][Times New Roman]]Government and the City) with respect to such Release. The foregoing shall be without
[[448,473,1108,530][12][,I,][Times New Roman]]Federal Government pursuant [[1071,473,2300,530][12][,I,][Times New Roman]]to the Navy Responsibilities and without compromising the
[[450,531,1808,588][12][,I,][Times New Roman]]applicability of any insurance coverage in regard to such Release. [[1778,531,2300,588][12][,I,][Times New Roman]]The City and Developer
[[449,588,2299,645][12][,I,][Times New Roman]]will coordinate any action required under this Section 10.5 with appropriate
[[450,646,1114,703][12][,I,][Times New Roman]]environmental insurance carrie [[1086,646,2299,703][12][,I,][Times New Roman]]rs so as not to compromise coverage for the costs of such
[[450,703,657,760][12][,I,][Times New Roman]]actions. [[643,703,2299,760][12][,I,][Times New Roman]]Nothing set forth herein requires Developer to perform any obligation of the
[[448,761,2299,818][12][,I,][Times New Roman]]Federal Government and nothing set forth herein shall be deemed to limit or impair (or
[[450,818,964,875][12][,I,][Times New Roman]]take any action that mig [[939,818,2299,875][12][,I,][Times New Roman]]ht limit or impair) in any manner the rights and/or remedies that
[[448,876,2312,933][12][,I,][Times New Roman]]Developer or the City may have against the Federal Government or any other third party.
[[450,933,2299,990][12][,I,][Times New Roman]]The foregoing shall not apply to the Returned Property after acquisition thereof by the
[[450,991,561,1048][12][,I,][Times New Roman]]City [[534,991,584,1048][12][,I,][Times New Roman]].
Conflict with Section 330 and Other Federal Government Obligations
2.5.9.
Section 10.6of the DDA provides as follows:
[[475,1262,646,1319][12][B,I,][Times New Roman]]10.6 [[631,1262,2268,1319][12][B,I,][Times New Roman]]Conflict with Section 330 and Other Federal Government Obligations
[[2238,1263,2313,1320][12][,I,][Times New Roman]].
[[448,1321,1891,1378][12][,I,][Times New Roman]]Notwithstanding anything to the contrary contained in this Section 10, [[1852,1321,2300,1378][12][,I,][Times New Roman]]in the event
that any
[[450,1378,2299,1435][12][,I,][Times New Roman]]actions required to be taken by Developer pursuant to this Section 10 could potentially
[[450,1436,2299,1493][12][,I,][Times New Roman]]result in Developer losing rights, or are contrary to any rights, which it otherwise would
[[450,1493,1599,1550][12][,I,][Times New Roman]]have pursuant to the Navy Responsibilities or otherwise [[1585,1493,2300,1550][12][,I,][Times New Roman]]against the Federal Government,
[[450,1551,2299,1608][12][,I,][Times New Roman]]then the City and Developer shall meet in order to determine the proper course of action
[[450,1608,1014,1665][12][,I,][Times New Roman]]to be taken by Developer.
[[450,1666,1321,1723][12][,I,][Times New Roman]]interest in the Project and Tustin Legacy, [[1281,1666,2300,1723][12][,I,][Times New Roman]]while retaining for Developer its rights
pursuant
[[450,1723,2299,1780][12][,I,][Times New Roman]]to the Navy Responsibilities or otherwise against the Federal Government to the maximum
[[450,1781,2299,1838][12][,I,][Times New Roman]]extent reasonable under the circumstances. Notwithstanding the foregoing, nothing set
[[441,1838,1068,1895][12][,I,][Times New Roman]]forth in this Section 10.6 reli [[1032,1838,2299,1895][12][,I,][Times New Roman]]eves Developer or its Transferees or Successor Owners
with
[[450,1896,2299,1953][12][,I,][Times New Roman]]respect to the environmental responsibilities and obligations and/or environmental
[[450,1953,1657,2010][12][,I,][Times New Roman]]indemnification of Developer to the City in this Agreement [[1622,1953,1672,2010][12][,I,][Times New Roman]].
Rights of the City to Enforce
2.5.10. Section 17.15.2of the DDA provides as
follows:
[[587,2225,651,2282][12][B,I,][Times New Roman]].2 [[662,2225,1313,2282][12][B,I,][Times New Roman]]Rights of the City to Enforce
[[1285,2226,2299,2283][12][,I,][Times New Roman]]. The City is the beneficiary of the terms and
[[443,2283,2299,2340][12][,I,][Times New Roman]]provisions of this Agreement and of the covenants running with the land, for and in its own
[[450,2341,1468,2398][12][,I,][Times New Roman]]right and for the purposes of protecting the inter [[1438,2341,2300,2398][12][,I,][Times New Roman]]ests of the community and other parties,
[[443,2398,2299,2455][12][,I,][Times New Roman]]public or private, in whose favor and for whose benefit this Agreement and the covenants
[[450,2456,2299,2513][12][,I,][Times New Roman]]running with the land have been provided, without regard to whether the City has been,
[[450,2513,1293,2570][12][,I,][Times New Roman]]remains or is an owner of any land or i [[1257,2513,2300,2570][12][,I,][Times New Roman]]nterest in the Property, the Development Parcels
[[450,2571,2299,2628][12][,I,][Times New Roman]]or in the Project. The City shall have the right, if this Agreement or any covenants herein
[[450,2628,2299,2685][12][,I,][Times New Roman]]are breached, to exercise all rights and remedies, and to maintain any actions or suits at
[[450,2686,949,2743][12][,I,][Times New Roman]]law or in equity or oth [[924,2686,2299,2743][12][,I,][Times New Roman]]er proper proceedings to enforce the curing of such breaches to
[[449,2743,2311,2800][12][,I,][Times New Roman]]which it or any other beneficiaries of this Agreement and any covenants may be entitled.
[[448,2801,1474,2858][12][,I,][Times New Roman]]For avoidance of doubt, the provisions of this [[1447,2801,1752,2858][12][,I,][Times New Roman]]Section 17.15 [[1748,2801,2300,2858][12][,I,][Times
New Roman]]shall be included in the
[[450,300,829,357][12][,I,][Times New Roman]]Quitclaim Deed a [[804,300,2300,357][12][,I,][Times New Roman]]nd the Special Restrictions and shall apply with respect to all covenants,
[[450,358,1910,415][12][,I,][Times New Roman]]representations, warranties, releases and indemnities included therein.
Enforcement of Covenants
3..
General Purpose and Constructive Notice
3.1. For the Term of this Declaration, the
covenants, conditions and restrictions set forth in the Declaration shall run with the Development
Property, shall inure to the benefit of the City and its Governmental Successors and shall be
binding upon and burden the Development Property and Developer,each Successor Ownerand
each and every Person claiming by, through or under Developer or any Successor Owner for the
benefit of the City andits Governmental Successors (but excluding any End Users)..Except as
specifically set forth herein, the Restrictions shall remain in full force and effect for the Term,
each Successor Owner that now or hereafter owns or acquires any right, title or interest in or to
any portion of the Development Propertyand each and every Person claiming by, through or under
Developer or any Successor Owneris and shall be conclusively deemed to have consented to and
agreed to every Restriction, provision, covenant, condition, right and limitation contained herein,
whether or not any reference to this Declaration is contained in the instrument by which such
Person acquired such interest in the Development Property or portion thereof.
Transfers and Transfers of Control
3.2. Notwithstandinganything to the contrary
in this Declaration, except as set forth below, in the event that any Property Owner conveys the
Development Parcelsto another Person, the Property Owner conveying the Development Parcels
shall be released from the obligations ofthis Declaration first occurring from and after the effective
date of such conveyance to another Person; provided, however, that (a) the foregoing shall not be
construed to permit any Transfer or Transfer of Control by Property Owner of the Development
Parcelsor any portion thereof prior to the issuance of a Certificate of Compliance except as
permitted by the DDA, (b) during the Term of the DDA, notwithstanding any Transfers and/or
Transfers of Control, no Property Owner shall be released with respect tomatters for which it
remains liable pursuant to Section 2.2.1 (b) or 2.2.2(a)or (b) of the DDA, and (c) unless it is
released by the City as set forth in Section 2.2.3(c) or Section 16.6of the DDA, or otherwise by
the City in writing, each Property Owner shall remain fully liable for the obligations of Property
Owner under this Declaration for such period as it is Property Owner and for such longer period
as may be applicable to it during the Additional Liability Period under the DDA.
Inspection
3.3. Upon twenty-
explicitly set forth in this Declaration, and subject to reasonable security provisions of Property
Owner, and in addition to any rights that the City may have in its governmental capacity, theCity
and its authorized representatives may from time to time enter upon and inspect the Development
Property or any portion thereof or any Improvements thereon (excluding, however, the interior
space of any buildings or Homes on the Development Parcels)for purposes of ascertaining
compliance with the Restrictions, but without obligation to do so or liability therefor.
Other Restrictions
3.4. This Declaration and the Restrictions contained herein are not
the exclusive source of restrictions on the use and maintenance of the Development Property.
or the Other Agreements or its authority in its governmental capacity, nor the rights and authority
of any other Governmental Authority having jurisdiction over the Project or any portion thereof,
and the exercise of any rights or remedies by the City hereunder shall be considered separate from
and independent of any breach or violation by Property Owner which is also a breach or violation
of any Governmental Requirements.
Potential and Material Defaults
4.. In the event of any breach, violation or failure to
perform or satisfy any of the Restrictions which has not been cured within the applicable cure
period set forth below, the City may in its sole discretion enforce any one or more of the remedies
set forth in Section 4.3of this Declaration.
Potential Defaults
4.1. Except as otherwise provided in this Declaration, it shall be a
Potential Default
(a)Property Owner fails to pay timely any sum required to be paid to
the City pursuant to this Declaration; or
(b)Property Owner fails to perform, or delays in the performance of, in
whole or in part, any obligation required to be performed under, or otherwise violates the
provisions of this Declaration, other than as set forth in Section 4.1(a)of this Declaration.
Material Defaults
4.2.
(a)A Potential Default under Section 4.1(a)of this Declarationshall
Material Default
the date of
receipt by Property Owner of the notice of Potential Default from the City.
(b)A Potential Default under Section 4.1(b)of this Declarationshall
Material Default
i) within thirty (30)
calendar days from the date of receipt by Property Owner of written notice of such Potential
Default from the City, or (ii)if such cure cannot be reasonably accomplished within such thirty
(30) calendar day period, within ninety (90) calendar days after receiving written notice of such
Potential Default from the City, but only if Property Owner has commenced such cure within such
thirty (30) calendar day period and diligently pursues such cure to completion, or (iii) within such
longer period of time as ma
into account the nature of the Potential Default and the diligence and good faith efforts of Property
Owner, as applicable, to cure such Potential Default. The foregoing cure periodsfor Potential
Defaults under this Section 4.2(b)shall be extended by Force Majeure Delays.
(c)Following written notice and failure to cure within the time periods
set forth in this Section 4.2, each Potential Default shall become a Material Default that shall be
deemed to have occurred upon the expiration of the applicable cure period.
Certain City Remedies
4.3. In the event of a Material Default, subject to the
Mortgagee cure rights in Section 4.5of this Declaration, and without limiting the rights and
remedies of the City under any other agreement, the City may do any or all of the following:
(a)The City may bring a suit for damages for any compensable breach
of or noncompliance with any of the Restrictions, or declaratory relief to determine the
enforceability of any of the Restrictions; provided, however, that (i) such damages shall be limited
to direct (actual) damages to the City for such Material Default, and (ii) the City hereby expressly
waives, releases and relinquishes any and all right to any expectation, anticipation, indirect,
consequential, exemplary or punitive damages; and/or
(b)The City may bring an action in equity or otherwise for specific
performance to enforce compliance with the Restrictions or an injunction to enjoin the continuance
of any such breach or violation thereof, whether or not the City exercises any other remedy set
forth herein, and Property Owner acknowledges that a particular or ongoing violation of one or
more of the Restrictions may cause the City to suffer material injury or damage not compensable
in money (including irreparable effects on the type and quality of development at Tustin Legacy
or portions thereof, and/or the maintenance of the Development Property, including without
limitation, the Improvements in accordance with the standards(s) for the quality of maintenance
set forth in Section 2.2.1of this Declaration); and/or
(c)Any such breach or violation of the Restrictions or any provision
hereof is hereby declared to be a nuisance, and the City shall be entitled to enter the Development
Property and summarily abate and remove, without further legal process to the maximum extent
permitted by law, any structure, thing or condition that may exist in violation of any of these
Restrictions, or to prosecute any remedy allowed by lawor equity for the abatement of such
nuisance against any person or entity acting or failing to act in violation of the Restrictions, all at
the sole cost and expense of Property Owner. Such rights shall include the right of the City or its
designee to enter the Development Property and to correct any Material Default by Property Owner
in the maintenance of the Improvements or landscaping on the Development Parcels in accordance
with the Restrictions.
Failure to Timely Pay Amounts Due
4.4. If there is a Material Default under this
Declaration then, in addition to any other remedies conferred upon the City pursuant to this
Declaration, Property Owner shall pay to the City, in addition to all principal amounts due, interest
from the date of such payment or part thereof was due until the date paid at the default rate of eight
percent (8%) per annum, compounded annually, but in no event in excess of the maximum legal
rate.
Rights of Mortgagees and Mortgagee Protection
4.5.
(a)This Declaration, including the lien rights of the City described in
Section 4.6hereof, shall be superior in priority to all Mortgages, but shall not apply to any
Mortgages obtained by Homebuyers.
(b)No breach or violation of the Restrictions shall defeat or render
invalid the lien of any Mortgage or similar instrument securing a loan made in good faith and for
value with respect to the permanent financing of the Project or any portion thereof; provided,
however, that this Declaration and all provisions hereof shall be binding upon and effective against
each Property Owner and each and every other occupant of the Development Propertyor portion
otherwise, but (i) such subsequent owner shall have a reasonable time after acquiring title in which
Declaration occurring prior to such transfer of title or occupancy and which are reasonably capable
of being cured or changed provided that such Property Owner diligently acts to effect such cure or
change (and in the event of such diligent and timely cure, such Property Owner shall have no
further liability in connection with such prior violation or the continued existence of such violation
until such cure is completed), and (ii) Sections 4.1(a) and 4.1(c) shall not be applicable as to such
Property Owner with regard to any noncurable default occurring prior to the time such Property
Owner acquired title. Notwithstanding theforegoing, each Property Owner shall be required to
use the Development Property in accordance with the Restrictions set forth in this Declaration.
(c)Notwithstanding anything to the contrary set forth in the
Restrictions, this Section 4.5 shall not apply toany portion of the Development Property
transferred to an End User.
Lien Rights
4.6. The delinquent amount of any payments due hereunder, together with
to the greatest extent permitted by applicable law, be a lien and charge upon the Development
Property and shall be a continuing lien upon the Development Property in favor of the City
effective upon Recordation of this Declaration and such lien and charge shall be paramount to the
lien and charge of any Mortgage upon the Development Property. Upon conveyance of any portion
of the Development Property to an End User, suchlien shall automatically terminate and be
released as to such conveyed portions.
No Damages Payable by City
4.7. The City would not have executed this Declaration
if the City could become liable for damages under or with respect to this Declaration, the DDA or
the Other Agreements. Consequently, and notwithstanding any other provision of this Declaration,
except as specifically set forth in Section 17.5.3 of the DDA, the City shall not be liable in damages
under this Declaration, the DDA or any Other Agreement to Property Owner, or any Person
claiming by, through or under such Property Owner and by acceptance of this Declaration,
Developer, on behalf of itself and each Successor Owner, hereby waives any and all rights to claim
damages of any kind or nature from the City except, during the term of the DDA, as set forth in
Section 17.5.3of the DDA.
Term and Termination
5..
Residential CC&Rs
5.1. One or more new declarations of covenants, conditions and
restrictions establishing a common and general scheme for the development, improvement,
enhancement and protection of the value and desirability of the Development Property (the
Residential CC&Rs
Developer or a Successor Owner prior to sale or lease of any individual Homes in that
Association. The Residential CC&Rs will address the use and maintenance restrictions as
contained in this Declaration, as well as various matters amongst the owners and occupants of
individual Homes and provisions required by the California Department of Real Estate in order to
obtain a final Subdivision Public Report for sale or lease of the individual Homes. Such
Residential CC&Rs shall be prepared by Property Owner, and approved by the City in its sole and
absolute discretion.
Term
5.2. This Declaration and the Restrictions set forth herein shall remain in force
and effect with respect to the Development Propertyfrom the Effective Date until the twenty-fifth
(25th) anniversary of the Recording of this Declaration, provided that the provisions of
Section2.2.1(c)of this Declaration shall terminate upon the Recordation of the Residential
CC&Rs against the Development Parcels, unless released at an earlier date by City in writing. In
addition, the covenant set forth in Section2.21(e)of this Declaration shall apply with respect to
all portions of the Development Propertyowned by Developer during the term of this Agreement.
Miscellaneous
6..
Modification
6.1. From and after the transfer of the Development Property to
Developer, no amendment, change, modification or supplement to this Declaration shall be valid
and binding unless it is represented in writing and signed by (a) the City, as the first party, and
(b)the Property Owners then owning any portion of the DevelopmentProperty or any interest in
the Project, as the second parties, and Recorded; provided that no consent or approval of any End
User shall be required in order to modify or amend any provisions of this Declaration. This
Declaration shall be administered by the City Manager. Any matter to be approved by the City
shall be deemed approved, and any action to be taken by the City shall be deemed taken, upon the
written approval by the City Manager (or his or her designee). The City Manager or his or her
designee shall have the authority to issue interpretations with respect to this Declaration and to
determine whether any action requires the approval of the City Council.
Applicable Law
6.2. This Declaration shall be governed by, interpreted under,
construed and enforced in accordance with the laws of the State of California, irrespective of
-of-law principles.
6.3. If City or Developer or any Successor Owner of Developer (each
to this Declaration institutes any action, suit, proceeding,
counterclaim or other proceeding for any relief against another party, declaratory or otherwise
Action
(collectively a
respect to any inaccuracies or material omissions in connection with any of the covenants,
representations, warranties or obligations on the part of the other party to this Declaration, then
the Prevailing Party in such Action shall be entitled to have and recover of and from the other party
, regardless of
which party is the Prevailing Party,sh
litigation counsel at the time the fees were incurred, but in no event more than $200 per hour and
(b) costs actually incurred in bringing and prosecuting such Action and/or enforcing any judgment,
Decision
have accrued on the commencement of such Action and shall be paid whether or not such Action
is prosecuted to a Decision. Any Decision entered in any final judgment shall contain a specific
provision providing for the recovery of all costs and expenses of suit, including reasonable
Costs
and executing such judgment. For the purposes of this paragraph, Costs shall include in addition
costs, expenses and expert fees and costs incurred in the following: post judgment motions and
collection actions, contempt proceedings, garnishment, levy, debtor and third-party examinations,
Prevailing Party
the meaning of this Section 6.3 includes a party who agrees to dismiss an Action in consideration
allegedly breached, or obtains substantially the relief sought by such party.
Conflict of Interest
6.4. No appointed orelected official or employee of the City shall
have any personal interest, direct or indirect, in this Declaration nor shall any official or employee
participate in any decision relating to the Declaration which affects his or her interests or the
interests of any corporation, partnership, or association in which he or she is directly or indirectly
interested. Developer warrants that it has not paid or given and will not pay or give any third
person any money or other consideration for obtaining this Declaration.
Non-liability of City Officials and Employees
6.5. No elected or appointed official,
representative, employee, agent, consultant, legal counsel or employee of the City shall be
personally liable under this Declaration.
Construction and Interpretationof Declaration
6.6.
(a)The language in all parts of this Declaration shall in all cases be
construed simply, as a whole and in accordance with its fair meaning and not strictly for or against
any Person.
(b)Any provision of this Declaration that is deemed to be illegal,
invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to
the extent of the invalidity or unenforceability of such provision and shall be deemed stricken from
this Declaration. Any stricken provision shall not affect the legality, enforceability or validity of
the remainder of this Declaration. If any provision or part thereof of this Declaration is stricken
in accordance with the provisions of this Section, then the stricken provision shall be replaced, to
the extent possible, with a legal, enforceable and valid provision that is as similar in tenor and
intent to the stricken provision as is legally possible.
(c)The captions of the sections and subsections in this Declaration are
inserted solely for convenience and under no circumstances are they or any of them to be treated
or construed as part of this instrument.
(d)
and include this instrument as well as any riders, schedules, exhibits, addendaand attachments
hereto (which are hereby incorporated in this Declaration by this reference). Any references to
refer to and include the covenants, obligations and
undertakings existing pursuant to this Declaration and any riders, schedules, exhibits, addenda,
attachments or other documents affixed to this instrument.
(e)As used in this Declaration and as the context may require, the
singular includes the plural and vice versa and the masculine gender includes the feminine and
vice versa.
(f)
(g)Unless otherwise indicated, references in this Declaration to
sections, paragraphs, clauses, exhibits, attachments and schedules are to the same contained in or
attached to this Declaration.
Time of Essence
6.7. Time is of the essence with respect to all provisions of this
Declaration in which a definite time for performance is specified.
Counterparts
6.8. This Declaration may be executed in two or more separate
counterparts, each of which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This Declaration
shall not be effective until the execution by the City and Developer of at least one set of
counterparts. Any one of such completely executed counterparts shall be sufficient proof of this
Declaration.
Estoppel
6.9. During the Term, the City shall, from time to time upon not less than
twenty (20) calendar from Property Owner, but not more often than annually unless
in connection with a sale or refinancing of the Development Parcelsand/or Improvements, execute
and deliver to Property Owner a certificate in recordable form stating that this Declaration is
unmodified and in full force and effect or, if modified, that this Declaration is in full force and
effect, as modified, and stating the modifications and stating whether or not, to the actual
knowledge of the City Manager (and without duty of inquiry), (a) a Potential Default or Material
Default by Property Owner has occurred and is continuing and (b) if a Potential Default or Material
Default by Property Owner has occurred and is continuing, specifying the same. In connection
with any such certificate, and to the extent that the City still has copies thereof in its possession or
control, the City shall provide a copy of the DDA, together with all amendments, supplements and
modifications thereto. Any such certificate may be relied upon by Property Owner or any
prospective purchaser or lender of Property Owner. Property Owner shall promptly pay to the
incurred with respect to the preparation, review, and delivery of each City estoppel, provided that
such expenses, fees and costs shall not exceed Five Thousand Dollars ($5,000.00) with respect to
any single estoppel.
Force Majeure ProceduresFirst Party
6.10
entitled to an extension of time due to Force Majeure Delay, it shall notify the other party (the
Second Party
Party becomes aware of such Force Majeure Delay, generally describing the Force Majeure Delay
and its date of commencement. Upon written request from the Second Party, the First Party shall
promptly provide the following information with respect to such Force Majeure Delay: a more
detailed description of the Force Majeure Delay, when and how the First Party obtained knowledge
thereof, the steps the First Party anticipates taking to respond to such Force Majeure Delay, and
the estimated delay resulting from such Force Majeure Delay and response and such other
information as the Second Party may reasonable request. The extension for Force Majeure Delay
shall be gran
notify the Second Party in writing of its request for a given Force Majeure Delay within the ninety
(90) calendar days specified above, there shall be no extension for such Force Majeure Delay.
[[1017,976,1563,1033][12][,I,][Times New Roman]][signatures on next page]
IN WITNESS WHEREOF, the City has executed this Declaration as of the date first set
forth above.
CITY
CITY OF TUSTIN:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:
Amy E. Freilich
[[300,2351,389,2408][12][,I,][Times New Roman]][si [[351,2351,1054,2408][12][,I,][Times New Roman]]gnatures continued on next page]
BY EXECUTING THIS DECLARATION OF SPECIAL RESTRICTIONS FOR
PARCEL6B, DEVELOPER ACKNOWLEDGES AND AGREES ON BEHALF OF
DEVELOPER AND ITS SUCCESSOR OWNERS THAT, UPON OBTAINING TITLE TO
THE PROPERTY, DEVELOPER SHALL ASSUME AND BE BOUND BY ALL OF THE
OBLIGATIONS AND LIABILITIES, COVENANTS, CONDITIONS,AND
RESTRICTIONS HEREIN:
___________________________________, a
____________________________________
By:
Name:
Title:
Date: ____________________
By:
Name:
Title:
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
ATTACHMENT 1
LEGAL DESCRIPTION OF THE LAND
[[1115,466,1468,523][12][B,I,][Times New Roman]]{to be attached}
ATTACHMENT 21
LANDSCAPE INSTALLATION AND MAINTENANCE AGREEMENT
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT
FROM RECORDING FEES PER
GOVERNMENT CODE6103 AND 27383.
Recording requested by and
When recorded mail to:
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
SPACE ABOVE THIS LINE FOR
LANDSCAPE INSTALLATION ANDMAINTENANCE AGREEMENT
Agreement
ThisLANDSCAPE INSTALLATION AND MAINTENANCE AGREEMENT
Effective Date
entered into this___day of_______, 201__
City___________________,a_________________________
Developer
RECITALS
[[1796,1917,2300,1974][12][B,I,][Times New Roman]][{if no Assignment or
A.City and CalAtlantic Group, Inc., a Delaware corporation
[[298,1974,502,2031][12][B,I,][Times New Roman]]Merger: [[462,1974,519,2031][12][B,I,][Times New Roman]]} [[552,1974,792,2031][12][B,I,][Times New Roman]]Developer [[824,1974,878,2031][12][B,I,][Time
s New Roman]]/ [[864,1974,914,2031][12][B,I,][Times New Roman]]{ [[882,1974,1447,2031][12][B,I,][Times New Roman]]if Assignment or Merger [[1416,1974,1482,2031][12][B,I,][Times New Roman]]:}
[[1450,1975,2300,2032][12][,I,][Times New Roman]], predecessor in interest to Developer
[[344,2032,569,2089][12][B,I,][Times New Roman]]Original [[554,2032,793,2089][12][B,I,][Times New Roman]]Developer [[803,2032,858,2089][12][B,I,][Times New Roman]]]
have entered into that certain Tustin Legacy Disposition and
[[1893,2089,1944,2146][12][B,I,][Times New Roman]][ [[1910,2089,1960,2146][12][B,I,][Times New Roman]]{ [[1928,2089,2225,2146][12][B,I,][Times New Roman]]if amended:}
Development Agreement for Disposition Parcel6B, dated as of_______, 201_[[2206,2090,2300,2147][12][,I,][Times New Roman]]as
[[300,2148,1213,2205][12][,I,][Times New Roman]]amended by that certain Amendment No. [[1250,2148,1300,2205][12][,I,][Times New Roman]]t [[1264,2148,2300,2205][12][,I,][Times New Roman]]o
Tustin Legacy Disposition and Development
[[1627,2204,1682,2261][12][B,I,][Times New Roman]]] [[1708,2204,1830,2261][12][B,,][Times New Roman]]DDA
[[297,2205,897,2262][12][,I,][Times New Roman]]Agreement for Disposition [[867,2205,1038,2262][12][,I,][Times New Roman]]Parcel [[1014,2205,1064,2262][12][,I,][Times New Roman]]6 [[1037,2205,1089,22
62][12][,I,][Times New Roman]]B [[1091,2205,1377,2262][12][,I,][Times New Roman]]dated as of [[1347,2205,1523,2262][12][,I,][Times New Roman]]______ [[1498,2205,1631,2262][12][,I,][Times
New Roman]], 201 [[1606,2205,1657,2262][12][,I,][Times New Roman]]_ [[1669,2205,1719,2262][12][,,][Times New Roman]](
Developer has acquired from City that certain real property described and depicted on Exhibit
Development Parcels
B.City is the owner of certain real property adjacent to the Development Parcels
City Property
described on Exhibit
C.City has approved certainentitlements with respect to the Development Parcels
Entitlements
Tentative Tract Map No.18125. The DDA and
the Conditions of Approval with respect to the Entitlements, including, but not limited tothe
Conditionsof Approval in Resolution No. 17-57approving Design Review application 2017-012
Conditions
adopted by the Tustin City Council onJanuary 16, 2018
install and maintain, among other things, certain landscape, hardscape, irrigation and other
improvements within the Boundary Landscape Area.
D.Developer
maintenance of the Landscape Areas. This Agreement shall be a covenant running with the land
and burdening the Development Parcels for the benefit of the Boundary Landscape Area and the
City.
NOW, THEREFORE, in consideration of the benefits conferred, the mutual covenants and
conditions contained herein, and the duties and obligations incurred, the parties hereto agree as
follows:
AGREEMENT
1.Definitions. For purposes of this Agreement, the following capitalized terms shall have
the following meanings:
Boundary Landscape Area
ean (a)that certain property owned by the City
and/or Developer between the back of curb on each public street adjoining the Development
Parcels and the Buildings or private low walls/patio areas, as depicted on Exhibitand
(b)LotA and shall includethe landscaping within such area installed by the Developer in
accordance with theEntitlements and Conditions.
City Indemnified Parties
attorneys, affiliates, employees, contractors, consultants and representatives.
Default Interest Rate
compounded annually, but in no event in excess of the maximum legal rate.
Developer Representatives
employees, agents,
representatives, consultants, contractors, and other persons accessing the Landscape Areas through
or with the permission or under the direction or auspices of Developer.
Entry Areas
ding vehicular access
to the Development Parcels along Victory Road and Moffett Drive, as depicted on Exhibit
Entry Areas.
Final Map
recorded.
High Quality Residential Project
-family homes
that is of high quality and very well maintained and managed, in each case comparable to other
high quality single family developments in the City of Tustin and the City of Irvine of similar age.
High Quality Residential Standards
standards consistent with a High Quality Residential Project.
to the laws and regulations ofthe State of California for the management of the common area
development on the Development Parcels.
Landscape Area
(a)the Publicly Accessible Common Area and (b)the
Boundary Landscape Area, collectively.
Landscape Improvements
shall mean any and all landscaping, irrigation and/or
hardscape improvements required by the Approved Plans, the Conditionsor the DDA to be
constructed in connection with the Project upon the Landscape Area.
Lot A
d on the Final Map;provided that until such
time as the Final Map is Recorded, the term Lot Ashall mean Tentative Tract
Map No. 18125 approved by the City on January 16, 2018.
MasterAssociation
overall management ofthe entirety of the common areas, excluding all Sub-Associations.
PedestrianPlaza
portion of LotA generally in the locationdepicted as
Exhibit
Private Streets and Sidewalks
private streets, roadways,sidewalks,
pedestrian pathways, and bike ways within the Development Parcels depicted on Exhibitto
be constructed by Developer on the Development Parcels.
Publicly Accessible Common Area
on Exhibitcomprising(a)Lot A,including the portion thereof
comprising the Pedestrian Plaza,and (b)a portion of the Private Streets and Sidewalks to be
constructedor installed by Developer on the Development Parcels, which are alsosubject to the
Master Association.
Publicly Accessible Common Area Improvements
mean the Improvements
constructed on the Publicly Accessible Common Area.
Sub-Associations
management of a portion of the common areas within the Development Parcels andwhich are also
subject to a Master Association.
2.Maintenance Obligation. Upon completion by the Developer of the construction of
Landscape Improvements for all or any portion of the Landscape Areas, Developer shall maintain,
repair, replace and restore, at its sole cost and expense, the Landscape Improvements and the
Landscape Areas,including,without limitation,all hardscape and paving materials upon the Entry
Areas,but excluding any standard or meandering perimeter public street sidewalks on the
Landscape Areaswhich shall be maintained by the City, in the same aesthetic and sound condition
or better as the condition of such improvements at the time of their acceptance by the City,
excepting only reasonable wear and tear and any necessary replacement of Landscape
Improvements pursuant to this Agreement. Any necessary replacements of Landscape
Improvements shall be consistent with the Conditions and the quality of improvements originally
approved by City and shall in addition be subject to any applicable City review and approvals.
The Landscape Areas shall be maintained in accordance with High Quality Residential Standards.
All utilities required to maintain the Landscape Improvements including, without limitation, water
and electrical, shall be paid for by Developer.
3.Standard of Maintenance. The standard for the quality of maintenance of the Landscape
Areas and Landscape Improvements shall be met whether or not a specific item of maintenance is
listed below. However, representative items of maintenance shall include: (a)proper maintenance
of all Landscape Areas and Landscape Improvements such that they are evenly cut,evenly edged,
reasonably free of bare and brown spots, debris, trash, litter, droppings and weeds;
(b)maintenance, repair and replacement on a regular schedule, of landscaping, hardscaping,
irrigation systems and utilities; (c)frequent and regular inspection for graffiti or damage or
deterioration or failure, and reasonably prompt repair or replacement of all surfaces, fencing, walls,
lighted bollards, decorative pavement, equipment, etc., as necessary; (d) fertilizing, irrigating and
replacing vegetation, as necessary; (e)use and replacement of vegetation of a type and amount as
may reasonably be required to maintain the Landscape Areas in accordance with the Conditions
and the Tustin Legacy Specific Plan and consistent with High Quality Residential Standards;
(f)adequate maintenance of all Landscape Areas and Landscape Improvements such as not to be
detrimental to public health, safety, or general welfare; and (g)regular and even trimming and
pruning of all trees and shrubs so they do not impede vehicular or pedestrian traffic, do not intrude
into neighboring properties, do not create nuisances to neighboring properties, including but not
limited also to root pruning to eliminate exposed surface roots and damage to curbs and gutters,
sidewalks, driveways, utilities and other structures or improvements.
4.Allocation of Maintenance Responsibilities. Except as set forth in Section 22 with respect
entity for all of the Development Parcels and the Boundary Landscape Area and the Landscape
Improvements at any given time during the Term.
5.Term. The term of this Agreement shall be perpetual, unless termination is consented to
by the City, in its sole discretion; provided, however, that in the event that the Cityaccepts the
irrevocable offer of dedication provided on the Final Map for Lot A,this Agreement shall terminate
as to Lot A, and Developer shall concurrently bereleased from the performance of all maintenance
obligations and all other terms and conditions under this Agreement with respect to Lot A.
6.Access. City hereby grants to Developer and its successors-in-interest authorization for
installation, maintenance, repair and replacement of landscape and hardscape within the Boundary
Landscape Areaand Entry Areasto access and maintain the Boundary Landscape Areaand Entry
Areasin accordance with this Agreement.Developer hereby grants to City authorization for
installation, maintenance, repair and replacement of standard or meandering perimeter public street
sidewalks on Developer owned portions of the Boundary Landscape Area to access and maintain
said sidewalks in accordance with this Agreement.
7.Insurance. From and after the Effective Date, Developer, at its cost, shall maintain public
liability and property damage insurance with a single combined liability of not less than
$1,000,000 and property damage limits of not less than $500,000 insuring against all liability of
Developer and the Developer Representatives arising out of or in connection with the presence,
activities or work on or use of the Landscape Improvements and/or Landscape Area or any act or
omission to act of Developer and/or the Developer Representatives with respect to the Landscape
Area
compensation insurance meeting statutory limits for all persons employed by Developer in
connection with obligations under this Agreement. The foregoing may be satisfied during the term
of the DDA by insurance required thereby but shall not subtract from any insurance obligations of
Developer to City under the DDA. Developer will furnish to City duly authenticated Certificates
of Insurance evidencing maintenance of the insurance required under this Agreement and such
other evidence of insurance or copies of policies as may be reasonably required by City from time
to time. Insurance must be placed with insurers with a current A.M. Best Company Rating
equivalent to at least a R--/X (if offered by a surplus
line broker). An Accord certificate evidencing the foregoing and providing the following
endorsements signed by the authorized representative of the underwriter and approved by City
shall be delivered within seven (7) Business Days following the Effective Date of this Agreement
and annually evidencing renewals of each policy. The endorsements shall provide as follows:
(a)designate the City, its elected and appointed officials, agents, representatives and employees as
additional insureds on the commercial general liability policies; (b)the commercial general
liability insurance coverage shall be primary, and not contribute with any insurance or self-
insurance maintained by City and (c)a waiver of subrogation for the benefit of the City. Such
The procuring of such insurance and the delivery of policies, certificates or endorsements
e
City as set forth herein.
8.Indemnity. Developer hereby agrees to protect, indemnify, defend and hold harmless the
City Indemnified Parties from and against anyand all claims, actions, damages, costs (including,
the
presence, activities or work on or use of the Landscape Improvements and/or Landscape Area by
Developer and/or Developer Representatives;(b)any act or omission to act of Developer and/or
the Developer Representatives with respect to the Landscape Areas and/or Landscape
Improvements;(c)entry onto the Landscape Areas by Developer or the Developer Representatives
in connection with this Agreement;and (d)bodily injury to or death of any person (including any
employee or contractor of the City Indemnified Parties) or damage to or loss of use of property
resulting from such acts or omissions of
to the Landscape Areas and/or Landscape Improvements; provided that the foregoing indemnity
shall not apply to the extent of the negligence, willful misconduct or fraud of any City Indemnified
Party.The provisions of this Section shall survive the termination of this Agreement.
9.. Developer shall keep the Landscape Areas free and clear of any
10.Compliance with Laws. Developer shall comply with all laws, regulations, conditions, or
instructions affecting the Landscape Areas and the Landscape Improvements, including without
limitation, those issued by the Environmental Protection Agency, or any federal, state, interstate,
or local governmental agency having jurisdiction to abate or prevent pollution. The disposal of
any toxic or hazardous materials within the Landscape Areas is specifically prohibited. Such
regulations, conditions, or instructions in effect or prescribed by said Environmental Protection
Agency, or any federal, state, interstate, or local governmental agency shall be complied with by
Developer. The Developer shall not discharge waste or effluent from the Landscape Area in such
a manner that the discharge will contaminate streams or other bodies of water or otherwise become
a public nuisance. The foregoing shall not subtract from any environmental responsibilities of
Developer to City under the DDA.
11.City Remedies. In the event of a breach of any provision of this Agreement, City may
Default Notice
interruptions or similar emergencies which shall not require advance notice or cure periods
hereunder, if Developer does not cure the violation within thirty (30) days after receipt of the
Default Notice, or if such default is of a kind which cannot reasonably be cured within thirty (30)
days, and Developer does not within such thirty (30) day period commence to cure such default
and diligently thereafter prosecute such cure to completion, then City shall have the right, but not
the obligation, to (i) institute legal action against Developer for specific performance, injunction,
declaratory relief, damages, or any other remedy provided by law, (ii) pay any sum owed by
Developer to the party entitled to such payment and/or (iii) enter upon the Development Parcels
and the Landscape Areas and to summarily abate, remove or otherwise remedy any improvement,
and/or repair or modify any improvement which violates the terms of this Agreement and/or
perform any obligation of Developer under this Agreement to be performed thereon. Developer
shall pay to the City, within thirty (30) calendar days of written demand by City (which demand
is accompanied by appropriate supporting documentation), an amount equal to all costs and
expenses incurred by City in undertaking any of the actions permitted by the preceding sentence,
including without limitation, third party costs and City hourly wages and benefits reasonably
allocable to the time expended by City in taking such actions, together with interest thereon at the
rate equal to the Default Interest Rate, from the date such costs and expenses were advanced or
incurred by the City. The rightsand remedies given to City by this Agreement shall be deemed to
be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or of
any other right or remedy at law or in equity which City might otherwise have by virtue of a default
under this Agreement, and the exercise of one such right or remedy by any City shall not impair
12.Estoppel Certificate. Each party hereby covenants that within twenty (20) business days
ofthe written request of any other party it will issue to such other party an Estoppel Certificate
stating: (a)whether the party to whom the request has been directed knows of any default under
this Agreement and if there are known defaults specifying the nature thereof; (b)whether to its
knowledge this Agreement has been assigned, modified, or amended in any way (and if it has, then
is in full force and effect, provided that in no event shall an estoppel be requested more often than
annually.
13.Excuse for Non-Performance. Each party shall be excused from performing any obligation
or undertaking provided in this Agreement except any obligation to pay any sum of money under
the applicable provisions hereof, in the event and so long as the performance of any such obligation
is prevented or delayed, retarded, or hindered by act of God, fire,earthquake, floods, explosion,
actions of the elements, war, invasion, insurrection, riot, mob violence, sabotage, inability to
procure or general shortage of labor, equipment, facilities, materials, or supplies in the ordinary
course on the open market; failure of normal transportation strikes, lockouts, action of labor
unions, condemnation, requisition, laws, orders of governmental or civil or military authorities.
14.Effect on Third Parties. Except as herein specifically provided, no rights, privileges or
immunities conferred upon the parties to this Agreement shall inure to the benefit of any
homeowner nor shall any person be deemed to be a third-party beneficiary of any of the provisions
contained herein.
15.Entire Agreement. This Agreement constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of
the terms and conditions thereof. Prior agreements, representations, negotiations, and
understandings of the parties hereto, oral or written, express or implied, are hereby superseded and
merged herein.
16.Modification. This Agreement may not be modified in any respect or rescinded, in whole
or in part, except by an instrument in writing, duly executed and acknowledged by the parties
hereto, or their successors or assigns that are the record owners of the Landscape Areas. Any
change, modification, amendment or rescission which is made without the written consent of such
owners shall be null and void and of no effect. No consent or approval of any owner other than
those owners described in the first sentence of this Section shall be required in order to modify or
amend any provisions of this Agreement.
17.Severability. If any term, covenant, condition or provision of this Agreement, or the
application thereof to any person or circumstance, shall toany extent be held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants,
conditions or provisions of this Agreement, or the application thereof to any person or
circumstance, shall remain in fullforce and effect and shall in no way be affected, impaired or
invalidated thereby.
18.Governing Law. This Agreement and the obligations of the parties hereunder shall be
interpreted, construed, and enforced in accordance with the laws of the State of California.
19.Waiver and Default. The waiver by one party of the performance of any provision of this
Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other
provision under this Agreement or of any subsequent breach by the other party of the same
provision.
20.References to Sections, Clauses and Exhibits. Unless otherwise indicated, references in
this Agreement to sections, clauses and exhibits are to the same contained in or attached to this
Agreement and all exhibits referenced in this Agreement are incorporated in this Agreement by
this reference as though fully set forth in this Section.
21.Counterparts. This Agreement may be executed in one or more counterparts. All
counterparts so executed shall constitute one agreement, binding on all parties, even though all
parties are not signatory to the same counterpart.
22.Runs With the Land; Release and Termination; Assignment. This Agreement and the
terms, provisions, promises, covenants and conditions hereof shall constitute equitable servitudes
and covenants runningwith the land comprising the Development Parcels and shall burden the
DevelopmentParcels and shall be binding upon Developer and its successors and assigns for the
benefit of the Boundary Landscape Area and City and its legal representatives, successors and
assigns.
heirs, representatives, successors and assigns.This Agreement and all the terms, covenants and
conditions herein contained shall be enforceable as equitable servitudes in favor of the Boundary
Landscape Area and any portion thereof. This Agreement shall automatically be released and
terminate with respect to any portion of the Development Parcels which is improved with a
Home Buyer
residential dwelling unit and conveyed to a home buyer. In the event of a transfer
by Developer of all of the Development Parcels, the obligations and liabilities of the Developer
under this Agreement shall be binding upon the successor owner of the Development Parcels, and
Developer shall be released from all obligations and liabilities under this Agreement accruing from
and after the date of the conveyance, except that prior to issuance of the Certificate of Compliance
pursuant to the DDA, any such release shall be applicable only to the extent provided in the DDA.
Developer and any successor owner of the Development Parcels shall only be liable for the
obligations and liabilities under this Agreement which accrue during the period that Developer or
such successor owner owns the Development Parcels, except that prior to issuance of the
Certificate of Compliance pursuant to the DDA, any such limitation on liability shall be applicable
only to the extent provided in the DDA. Developer may assign its duties, obligations and liabilities
phases or portions of the Landscape Areas. Such assignment shall be accomplished through the
recordation of an assignment and assumption instrument which shall clearly set forth those
portions of the Landscape Areas to which such assignment applies and shall contain an assumption
Agreement with
respect to such portions of the Landscape Areas arising from and after the date of the assignment
Assignment Agreement
be released from any and all obligations or liabilities arising or accruing under this Agreement
from and after the effective date of the assignment with respect to those portions of the Landscape
Areas and Landscape Improvements and those obligations and liabilities which are subject to the
Assignment Agreement.If all oftheduties, obligations and liabilities of Developer under this
Agreement have not been assigned son or before the date of
conveyance of the lastresidential lot within the Development Parcels toaHome Buyerby abuilder
or other entity required to file a public report as required by Section 11010(a) of the California
Final Home Sale Date
Business and Professions Code, the HomeownersAssociation shall
automatically, and without requirement or necessity for any further written documentation or
assignment agreement, assume and be obligated to perform anyduties and obligations of
Developer arising or accruing under this Agreement from and after the Final Home Sale Date
which have not been previously assigned toa.If, after the Final Home
Sale Date, there is more than one MasterAssociation, the obligations of theMasterAssociation
under this Agreement with respect to the performance ofany duties and obligations which have
not been previously assigned to ashall be joint and several.
[[1028,573,1552,630][12][,I,][Times New Roman]][signature page follows]
IN WITNESS WHEREOF, City and Developer have signed this Agreement as of the date
first set forth above.
CITY OF TUSTIN:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:
Erica Rabe
City Clerk
APPROVED AS TO FORM
By:
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:
Amy E. Freilich
DEVELOPER:
_________________________,
a _______________________
By:
Name:
Title:
By:
Name:
Title:
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary publicor other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURYunder the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwhosigned the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
LEGAL DESCRIPTION OF DEVELOPMENT PARCELS
[[1115,573,1468,630][12][B,I,][Times New Roman]]{to be attached}
DEPICTIONOF CITY PROPERTY
DEPICTION OF LANDSCAPE AREAS
DEPICTION OF PRIVATE STREETS
AND SIDEWALKS
DEPICTION OF PUBLICLY ACCESSIBLE COMMON AREA
ATTACHMENT 22
LICENSE AND AGREEMENT FOR SITE DEVELOPMENT
LICENSE AND AGREEMENT FOR SITE DEVELOPMENTAgreement
THIS
Effective Date
is made and entered into as of_______, 201_
City
TUSTINand____________________
[[300,738,662,795][12][B,I,][Times New Roman]]{insert name of [[623,738,862,795][12][B,I,][Times New Roman]]Developer [[843,738,2282,795][12][B,I,][Times New Roman]]under DDA at time
of issuance, State of formation and type of entity}
Developer
, with reference to the facts set forth below:
RECITALS
A.WHEREAS, the City and CalAtlantic Group, Inc., a predecessor in interest to
Developer, entered into that certain Tustin Legacy Disposition and Development Agreement For
[[1526,1125,2300,1182][12][B,I,][Times New Roman]][{if amendments are made to DDA
Disposition Parcel 6B, dated as of _______________, 2018
[[300,1183,467,1240][12][B,I,][Times New Roman]]insert [[436,1183,549,1240][12][B,I,][Times New Roman]]the
[[505,1240,1923,1297][12][B,I,][Times New Roman]][{(if no amendments are made to DDA, insert the following:} (the
for the
purchase by Developer of certain real property located in the City of Tustin, County of Orange,
ExhibitA
State of California depicted on attached heretocomprising the Development Parcels
Development Parcels
under the DDAupon which Developer intends to construct certain
residential improvements.All initially capitalizedterms not otherwise defined herein shall have
themeanings assigned to themin the DDA.
B.WHEREAS, in connection with the acquisition and development of the
Development Parcels, the City has agreed to grant a construction license to Developer in
[[1431,1750,1674,1807][12][B,I,][Times New Roman]]{Original}
accordance with the provisions of Section 8.2.3 of theDDA to permit Developer to
enter upon the Development Parcels prior to the Close of Escrow to commence the Horizontal
ImprovementsWork(as defined below).
NOW THEREFORE, in consideration of the promises and mutual covenants, agreements
and conditions hereof, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto agree as set forth below.
AGREEMENT
1.Recitals. The recitals set forth above are true and correct and are incorporated
herein by this reference.
2.Term. The term of this Agreement and the License (as defined below) shall
commence as of the Effective Date and unless extended by the Parties in writing or terminated
earlier in accordance with this Agreement, shall remain in effect only until the earlier to occur of
Termination Date
(b) 5:00 pm on
[[2040,2697,2283,2754][12][B,I,][Times New Roman]]{Original}
the Outside Closing Date (as the same may be extended pursuant to Section 7.1 of the
th
DDA),provided that Close of Escrow has not then occurred; or (c) the fifteenth (15) calendar day
after Developer ceases to perform Horizontal Improvements Workupon the Premises(as defined
below), unless such failure to prosecute the work to completion is due to Force Majeure Delay.
Upon the Termination Date, Developer shall return the Premises to the City in the condition
described in Section8.1of this Agreement.In the event this Agreement terminates for reasons
other than the CloseofEscrow under the DDA, Developer shall relinquish all right, title and
interest in and to the Premises and any Horizontal ImprovementsWork performed,and Developer
and the City agree that any such Horizontal ImprovementsWork shall be transferred to the City
without compensation to Developer and the City shall accept possession of any such Horizontal
Improvements Work.
3.Construction License. TheCity hereby grants to Developer and to the Developer
License
Representatives a non-exclusive, revocable (a) the portions of Moffett
Drive (to the extent not yet openedas a public street) depicted on attached hereto and
Premises
(b) the Development Parcels (collectively, the accessing the
Development Parcels and carrying out the Horizontal ImprovementsWork.The City may restrict
access to all or a portion of Moffett Drive as a result of ongoing construction activities in order to
complete construction of Moffett Drive in accordance with Section 8.10 of the DDA. Developer
is granted control of the Premises for this purpose. Notwithstanding the foregoing, the License
and this Agreement shall be revocableby the City prior to the Termination Date only in accordance
with Section 19 of this Agreement.
4.Commencement and Performance of Work.
4.1Commencement of Grading Work. Developer may not enter the Premises
or commence the Grading Work until each of the following has occurred: (a)
of grading permits and all other permits required to be issued by the City and third parties with
respect to the grading of the Development Parcels and incidental work permitted by such permits
Grading Permits
;(b)provision by Developer of one or more Performance Bonds in favor of
rk and the return
of the Premises in the condition described in Section 8 of this Agreementand the payment of liens,
costs and expenses associated therewith; (c)provision of the insurance required by this Agreement;
and (d)the satisfaction of all other conditions to commencement of the Grading Work described
in the Entitlements, the DDA and the Schedule of Performance. Prior to commencement of any
Grading Work within the public right-of-way, in addition to the foregoing requirements of this
Section 4.1,Developer shall also first obtain an encroachment permit and approved street
This Agreement and the
License shall each become null and void unless the Grading Work begins within one month of the
GradingWork
shall mean all work permitted to be performed under the Grading Permitand all additional grading
work performed by Developer or on behalf of Developer in order to comply with the requirements
of this Agreement, provided that the City issues such additional grading permits as are needed for
the performance of such work.
4.2Commencement of Horizontal Improvements Work. Developer may not
commence the HorizontalImprovements Work other than Grading Work described in Section4.1
of this Agreement until each of the following has occurred: (a)
required to be issued by the City,and third partiesissuance of any additional permitsrequired by
such third parties to be issued, with respect to construction of the Horizontal Improvements or the
Horizontal Work
applicable portion thereof for which Developer proposes to commence work
PermitsPermits
; and collectively with the Grading Permit, ); (b)provision by Developer
to perform such Horizontal Improvements Work and the return of the Premises in the condition
described in Section8of thisAgreementand the payment of liens, costs and expenses associated
therewith; (c)provision of the insurance required by this Agreement;and (d)the satisfaction of all
other conditions to commencement of the Horizontal Improvements Work described in the
Entitlements, the DDA and the Schedule of Performance. Prior to commencement of any
Horizontal Improvements within the public right-of-way, in addition to the foregoing requirements
of this Section 4.2, Developer shall also first obtain an encroachment permit and approved street
For purposes of this
Horizontal Improvements Work
performed under the Permits and all additional work performed by Developer or on behalf of
Developer in order to comply with the requirements of this Agreement and shall include, without
limitation, the Grading Work and construction of all remaining Horizontal Improvements,
provided that the City issues permits necessary for the performance of such work.
5.RepairHorizontal Improvements
Workdamages or destroys any improvements located on City-owned property (other than on the
Premises) or on public streets or rights of way, Developer shall repair such damage to as near a
condition as existed prior to the performance of such Horizontal Improvements Workas is
6.Insurance. Prior to Developer exercising the License, Developer shall, at its own
expense, cause to be procured and maintained the policies of insurance required pursuant to
[[683,1722,925,1779][12][B,I,][Times New Roman]]{Original}
Section11.1 of the DDA. Specifically, Developer shall obtain
PLL
meeting the requirements of Section 11.1.3,and Pollution Legal Liability () insurance
[[1300,1837,1542,1894][12][B,I,][Times New Roman]]{Original}
meeting the requirements in Section 11.1.4,of theDDA.Developer shall not rely upon
or have rights to claim for reimbursement, payment, or coverage under any PLL insurance
[[1678,1952,1921,2009][12][B,I,][Times New Roman]]{Original}
presently maintained by City. The provisions of Section 11 of the DDA shall apply
with respect to this Agreement as though fully set forth herein.In addition, to the extent the
contractor performing the Horizontal ImprovementsWork on behalf of the Developer has or
obtainsaContractor Pollution Liability Policywith respect to the Horizontal Improvements Work
CPL
, Developer shall use commercially reasonable efforts to have the contractor cause its
policybe primary and the PLL policy to be non-contributorywith respect to matters covered by
the CPL policy. Developer shall be responsible for all self-insured retention or deductible amounts
due under the PLL policy.
7.-Is, Where-. Developer acknowledges that (a) the City makes no
representations or warranties as to the condition or suitability ofthe Premises, the soil located
thereon, any hazards or Hazardous Materials, contaminants or pollutants that may be present on or
below grade at the Premises, or otherwise; (b) Developer's use of the Premises and the soil thereon
[[2041,2692,2283,2749][12][B,I,][Times New Roman]]{Original}
and its license of the Premises is "as is, where is" as described in Section 4.5.1 of the
DDA, in its present condition and subject to and without liability to City, without any
representation, promise, agreement or warrant on the part of the City regarding such condition and
state of repair needed for the exercise of this License. Developer acknowledges that it has inspected
the Premises and its determination to engage in this undertaking is based solely on its own
investigation and is not based on reliance of any statements, suggestions or information provided
by the City, its agents, officers, employees or contractors. Developer further acknowledges that
the City shall not be liable for any latent or patent defects in the Premises, whether disclosed or
not.
8.Conditionof Premises at Termination of License Agreement;PerformanceBonds.
8.1Conditionof Premises. At the Termination Date or upon any earlier
termination of the License and this Agreement (other than termination due totheoccurrenceofthe
CloseofEscrow), Developer shall (a)remove its property from the Premises including without
limitation all Hazardous Materials it brought to or is required to remove from the Premises in
accordance with Sections 10 and 12 of this Agreement; (b)report, contain, remove andRemediate
in accordance with Sections 10 and 12 of this Agreement any land, air or water pollution resulting
from the Horizontal Improvements Workor any additional work performed by Developer pursuant
to this Agreementprovided that the foregoing shall not be requiredin connection with any pre-
existing Hazardous Materials that are the responsibility of the City pursuant to Section 12of this
Agreement; (c)deliver the Premises to the City in lien free condition; (d)cause the Premises,
including without limitation, all Horizontal Improvements Work, to be delivered in a condition
consistent with the Permits(but in the final condition specified in the Grading Permitonly to the
extent the Grading Workauthorized thereby has been completed as of the date of termination, and
in the condition specified by any andall other Permitsonly to the extent theremainingHorizontal
Improvements Workdescribed by each such permit has been completedas of the date of
termination) and all Governmental Requirements;and (e)deliver the Premises in a condition
meeting all requirements of the City of Tustin Water Quality Ordinance, and all Federal, State,
and Regional Water Quality Control Board and Regional Air Quality rules, permits and regulations
and applicable Mitigation Monitoring and Reporting Requirements relating to such standards,
including keeping the adjoining public roadways clear of any dirt or mud.
8.2Performance Bond(s). Upon termination of this Agreement for any reason
other than Close of Escrow under the DDA,if Developer shall have failed in any manner to comply
with the requirements of Section 8.1 of this Agreement, the City shall have the right, in its sole
discretion, to cause the surety under the Horizontal Improvements WorkPerformance Bonds, or
any of them, tosatisfy the requirements of Section 8.1of this Agreement (including without
limitation, to restore the condition of the Premises to the condition specified by Section 8.1and to
pay in full all contractors and subcontractors performing the Horizontal Improvements Workor
any other work performed pursuant to this Agreement)or to seek reimbursement under such bond
for work performed or amounts paid by the Cityin satisfaction of the foregoing.Uponpayment
infullof all amounts due and release of all liens (or bonding of outstanding liens in the amounts
required by the DDA) and performance by Developer or the surety under the Horizontal
Improvements WorkPerformance Bondsof the work required by thisSection8, the City shall
release the Horizontal Improvements WorkPerformance Bonds.
8.3Survival. The provisions of this Section shall survive termination of this
Agreement.
9.Release.
9.1Developer, on behalf of itself, its members,
principals, officers, elected officials,beneficiaries, trustees, shareholders, partners, heirs, personal
Releasing
representatives, successors and assigns (collectively, and including Developer,
Parties
er from and fully and irrevocably
releases City and its officers, elected officials, employees, consultants, agents, representatives and
Released Parties
contractors (collectively, and including the City,
and all Claims that each of the Releasing Parties may now have or hereafter acquire arising from
or related to the activities of any of the Releasing Parties and any damage or destruction of any
improvements located on the Premises, excepting from the foregoing release: (a)
anyClaim that is
(b)
the result of the gross negligence, willful misconduct or fraud of any of the Released Parties;any
breach by the City of any of the covenants or obligations set forth in this Agreement;and (c)any other
Claims to the extent such claims are based upon the Active Negligence of any of the Released Parties.
This release includes Claims of which the Releasing Parties are presently unaware or which the
Releasing Parties do not presently suspect to exist which, if known by the Releasing Parties, would
Parties specifically waive the protection of California Civil Code Section 1542, which provides as
follows:
RAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR MUST HAVE MATERIALLY AFFECTED HIS OR
HER
In this connection and to the extent permitted by law, the Releasing Parties realize and
acknowledge that factual matters now unknown to it may have given or may hereafter give rise to
Claims or controversies which are presently unknown, unanticipated and unsuspected,and the
Releasing Parties further agree that the waivers and releases herein have been negotiated and
agreed upon in light of that realization and that the Releasing Parties nevertheless hereby intend to
release, discharge and acquit the Released Parties from any such unknown Claims and
controversies to the extent set forth above. To the extent permitted by law, the foregoing provisions
of this Section 9.1 shall survive the termination of this Agreement.
CITY HAS AGREED TO ENTER INTO THIS AGREEMENT AND HAS
GIVEN THE RELEASING PARTIES MATERIAL CONCESSIONS
REGARDING THIS TRANSACTION IN EXCHANGE FOR THE
RELEASING PARTIES AGREEING TO THE PROVISIONS OF THIS
SECTION. BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES
THAT (A)IT HAS READ AND FULLY UNDERSTANDS THE PROVISIONS
OF THIS SECTION;(B)IT HAS HAD THE CHANCE TO ASK QUESTIONS
OF ITS COUNSEL ABOUT ITS MEANING AND SIGNIFICANCE;AND
(C)IT HAS ACCEPTED AND AGREED TO THE TERMS SET FORTH IN
THIS SECTION.
__________________________________________
CITYDEVELOPER
9.2The City shall record the Release in the form attached in
to this Agreement uponthe occurrence of each of the following: (a)termination of
theLicense and this Agreement due to a termination of the DDA prior to the Close of Escrow;
(b)the final resolution of all Actions and disputes pending between the Parties with respect to any
terms or conditions of the DDA, this Agreement,the Horizontal Improvements WorkPerformance
Bond(s)or the Premises;and (c)compliance by Developer with its obligations under Section 8 of
this Agreement.
10.Indemnity. Developer hereby agrees to protect, indemnify, defend and hold
harmless the City Indemnified Parties from and against any and all Claims Accruing during the
term of
term of this Agreement including, but not limited to (a)the acts or omissions to act of Developer
or the Developer Representatives arising from the presence, activities or work on or use of the
Premises by Developer or the Developer Representatives, including with respect to any Horizontal
Improvements Workperformed by Developer or any Developer Representatives on the Premises
pursuant to this Agreement, any inspections, surveys, tests, Investigations and studies carried out
by Developer or the Developer Representatives on the Premises during the term of this Agreement
or from the exercise of the License by Developer or the Developer Representatives; (b)entry onto
the Premises by Developer or the Developer Representatives in connection with this Agreement;
(c)bodily injury to or death of any person (including any employee or contractor of the City
Indemnified Parties) or damage to or loss of use of property resultingfrom such acts or omissions
of Developer or any of the Developer Representatives;and (d)the cost of compliance with any
Construction Conditions established by any Environmental Agency or Environmental Law and
accepted by the City and Developerpursuant to Section 12.1of this Agreement; provided that
Developer shall not be responsible for and shall have no obligation to defend or indemnify the City
Indemnified Parties to the extent a Claim relates to or arises from: (i)the active negligence, gross
negligence or willful misconduct of a City Indemnified Party;and/or (ii)the mere discovery of
existing conditions, contamination or hazardous materials at, on, under or emanating from the
Excluded Claims
therwise presented with a
Claim or potential Claim for which it believes it is entitled to defense and/or indemnity under this
Section, City will notify Developer of such Claim or potential Claim within ten (10) Business Days
of receipt of such claim. Selection of counsel and defense of a Claim shall be conducted in
[[1416,2742,1658,2799][12][B,I,][Times New Roman]]{Original}
accordance with the provisions of Section10.8 of theDDA. The provisions of this
Section shall survive termination of this Agreement.
11.Costs; No Liens. Developer shall bear all costs relating to the Horizontal
Improvements Work. Developer and the Developer Representatives shall not place, allow to be
placed on, or incur any liens against the Premises or any portion thereof in connection with the
Horizontal Improvements Workor in any way attributable to the acts of Developer and/or the
Developer Representatives on the Premises. Developer agrees to indemnify, defend, and hold the
City and its elected and appointed officials, employees, agents, attorneys, affiliates,
representatives, contractors, successors and assigns free and harmless from and against any and all
Claims arising with respect to payment of liens assessed or levied against the Premises and/or the
Improvements in connection with the Horizontal Improvements Workperformed, materials
furnished, or any other activities under control of Developer or the Developer Representatives
which, pursuant to the laws of California, may become a lien on the Premises. Should any lien be
filed against the Premises in connection with the Horizontal Improvements Work, Developer shall
promptly bond around the lien as part of disputing the lien with the party asserting the lien. The
provisions of this Section shall survive termination of the License and this Agreement. The City
may post notices of non-
any work under this Agreement.
12.Damage and Destruction; Environmental Remediation.
12.1Remediation. In the event of damage to or loss ofany improvements or
personal property situated on the Premises, Developer shall take all appropriate steps to erect
fences to preclude unauthorized access to the Premises and otherwise mitigate hazardous and
unsafe conditions within the Premises caused by the damage and destruction. In addition, if any
presence or Release of a Hazardous Material is discovered by Developer or a Release iscaused by
the Developer or any Developer Representative on the Premisesduring the term of this Agreement,
(a)Developer shall promptly provide written notice (or in the event of emergency, telephonic
notice, followed by written notice) of any such presence or Release to the City;and (b)Developer
shall, in full compliance with this Agreement, including without limitation, Section11 and
Section18of this Agreement:(i)Remediate the Hazardous Materials in compliance with and to
the extent required by Environmental Laws and any Environmental Agencyto the level required
by Governmental Agencies for single family residential purposes, or if such removal is prohibited
by any Environmental Laws, take whatever action is required by any Environmental Law and any
Environmental Agency.
under this Section 12 shall beconsidered fully satisfied upon receipt of a No Further Action Letter
with respect to such affected area;(ii)take such other action as is necessary to have the full use
and benefit of the Premises as contemplated by this Agreement;and(iii)provide theCity with
satisfactory evidence of the actions taken as required in this Section 12. For purposes of this
No Further Action Letter
Agreement, the term shall mean a
y the appropriate governmental
agency,
existence of Hazardous Substances withinthe affected areaand there are no constraints or
restrictions on future use..The City shall have a right to have an observer present during all such
testing and remediation work.City may provide comments to any remedial action plan prepared
RAP
by Developer for any remediation,and Developer shall not unreasonably decline to
incorporate such comments in such RAP, provided, however, that City shall not have approval or
consent rights with respect to such RAP; provided that, in the event that a Governmental Agency
requires the consent of the City for the approval of any RAP or issuance of a No Further Action
Letter, City shall have a right to consent but agrees not to unreasonably withhold, delay or
condition such consentexcept to the extent necessary to assure that there shall be no land use
control, constraint, limitation or restriction onthe construction and sale of single family residences
Constraints
onthe Premises; provided that the City shall not unreasonably withhold its
consent to Construction Conditions (as defined below) that meet the requirements of
clauses(a)and(b) below.Examples of Constraints that the City may reject in its sole discretion
are Constraints that affect the ability of any Person to construct single family residential homes on
the Premises, to construct swimming pools on the Premises, to dig 12 feet or less below the surface
of the land and the like. On the other hand, the Parties recognize that certain remedial or removal
action to address pre-existing contamination at the Premises is not feasible economically or from
an engineering perspective without imposition of certain conditions. Such conditions that will not
Construction
provide Constraints on the use of the Premises are referred to herein as
Conditions
. As an example,ifmethane exists below the surface of the Premises,in lieu of
removal of the methane, use of a methane boot may be required. If Developer proposes a
Construction Condition and the
on that basis; then Developer will obtain and submit to the City estimates from at least two
contractors as to the cost to Remediate the Premises to a level without Constraints without
Construction Conditions and the cost to Remediate to such level withConstruction Conditions.If
(a)thecost to Remediate the pre-existing Hazardous Materials without imposition of Construction
Conditionsismore than 15%greater than the cost to Remediate with the imposition of
Construction Conditions;and (b)following Remediation to the standard required with imposition
of the Construction Condition there is no Constraint on the ability to construct and sell single
family homes, thenfailure oftheCity to agree will be deemed unreasonable absent other basis for
denial asserted by the City.
12.2Assignment of Rights. City hereby assignsto Developer,to the extent such
rights are assignable, on a non-exclusive basis and as thesmay appear, any rights
that City has against any Person with respect to any Remediation, indemnification or liability with
respect to Hazardous Materials located on or about the PremisesthatDeveloper is responsible for
under this Agreement
insurance policies.
12.3Cooperation; Further Assurances.City shall reasonably cooperate with
Developer in pursuing and/orprocessing any claim against any insurer (excluding claims under
pollution legal liability insurance policies)or any other Person with respect to
Deve, including, without limitation, by making a claim
or damages incurred by Developer under this Agreement, all at De.
Developer shall have full authority to pursue such claims in its own name and without consent or
approval from City, and shall have the right to make all decisions in connection with the pursuit
of any such claim. In the eventthat for any reason the assignment of rights set forth in Section
12.2of this Agreementis ineffective or incomplete, City agrees: (a)upon written request of
Developer, to pursue claims against any Person for whom the assignment of rights is ineffective
;(b)to initiate a Third Party Claim requested
by Developer, which may include an action, arbitration, reference or other alternative dispute
resolution mechanism;and (c)if the City has no claim, tocooperate with Developer in pursuing
any such matterinitiated by Developer.If City fails to initiate a Third Party Claimif the City has
such a claim,as required hereunder, Developer shall be excused from its obligations to remediate
under Section12of this Agreement. Cityshall not unreasonably withhold, condition ordelay its
compliance with and resolution of such
Third Party Claim,including with respect to venue, strategy, law and motion and settlement.The
City shall use its commercially reasonable diligence in prosecuting such claim to conclusion.
aim or other compliance with the provisions of this Section
selected by Developerwho shall represent the City as well as Developer as the real party in interest,
except in the event of a conflict ofor disparateinterest.Such cost and expense of City shall include
reimbursement for time of City personnel and counsel incurred in connection with such pursuit,to
be charged at the then existing rates charged by City with respect to such personnel. Each of the
Parties shall execute and deliver any and all additional papers, documents or instruments, and shall
do any and all acts and things reasonably necessary or appropriate in connection with the
performance of its obligations under this Section 12 in order to carry out the intent and purpose of
this Agreement. City shall promptly pay over to Developer any award, payment, judgment or
settlement received by it in respect of any Third Party Claim.
12.4Survival.In the event the Close of Escrow occurs under the DDA, this Section 12
shall survive the termination of this Agreement. In the event this Agreement terminates due tothe
Close of Escrow under the DDA, the terms of the DDA shall govern the Remediation ofthe
Premises by Developer and the provisions of this Section 12 shall not survive other than
Sections12.2and12.3of this Agreement which shall surviveonly with respect to any Hazardous
Materials or Hazardous Material Release discovered on the Premisesby Developer during the term
of this Agreement. In the event this Agreement terminates in accordance with subsections (b), (c)
or (d) under Section 2 of this Agreement,the partiesrights and obligations under Section 12.1of
this Agreementshall survive the termination of this Agreement but only with respect to any
Hazardous Materialor Hazardous Material Releasediscovered on the Premises by Developer or
caused by Developer or any Developer Representative during the term of this Agreementand the
partiesobligations under Sections12.2 and 12.3 of this Agreement shall survive only with respect
to any Hazardous Materials or Hazardous Material Release discovered on the Premises by
Developer during the term of this Agreement. To the extent that completion of any Remediation
is required pursuant to the foregoing, Developer will complete such Remediation obligations in
full and shall not be relieved of its obligationsas a result of the termination of this Agreement or
for any other reason.
13.Exculpation. The City shall not be liable in damages to Developer or to any owner,
lessee, any Developer or other Person, on account of (a)any approvals or disapproval by the City,
including by the City Manager or designee, whether made in the Governmental Capacity or
Proprietary Capacity of the City of any design documents, including the Approved Plans, any
Basic Concept Plan and grading plansand other improvements plans, including without limitation,
plans and specifications,for the Horizontal Improvements Work, whether or not defective or
whether or not in compliance with applicable laws or ordinances; (b)any construction,
performance or nonperformance by Developer or any owner, lessee, Developer or other Person of
any work on the Premises or the Improvements, whether or not pursuant to the Permitsor whether
or not in compliance with applicable laws or ordinances; (c)any mistake in judgment, negligence,
action or omission in exercising its rights, powers and responsibilities hereunder; and/or (d)the
enforcement or failure to enforce any of the provisions of this Agreement. Every Person who
makes design submittals to Developer for approval shall be informed in writing and shall agree
that by reason of such submittal agrees not to bring any suit or action against the City seeking to
recover any such damages and expressly waives any such claim or cause of action for such
damages which it would otherwise be entitled to assert. The review of any design submittals shall
not constitute the assumption of any responsibility by, or impose any liability upon, the City as to
the accuracy, efficacy, sufficiency or legality thereof nor decrease or diminish any liability, duties,
responsibilities, or obligations of Developer under this Agreement or otherwise. The provisions
of this Section shall survive termination of the License and this Agreement.
14.No Supervision or Control. The City (whether acting in its Governmental Capacity
or its Proprietary Capacity) does not have any right, and hereby expressly disclaims any right, of
supervision or control over the architects, designers, engineers or persons responsible for drafting
or formulating of any plans, drawings and related documents of Developer.
15.No Waiver. Nothing contained in this Agreement shall be deemed to waive the
right of the City to act in its Governmental Capacity with respect to the consideration and approval
of the Entitlements and all other permits, licenses and approvals requested by Developer from time
to time in connection with the Project
16.Bailee Disclaimer and Waiver of Claims.Developer acknowledges and agrees that
City has granted its permission for use of the Premises only for the purposes and in accordance
with the provisions of this Agreement. By entering into this Agreement, City is not agreeingin
any manner to accept obligations or responsibility for the safekeeping of the vehicles or other
Agreement is not a contract for bailment or deposit of goods for safekeeping and City in no manner
whatsoever purports to be a bailee. As a material part of the consideration to be rendered to City
for this Agreement, Developer hereby waives any and all claims or causes of action against City,
its officers, agents, or employees which it may now or hereafter have for damages to, loss of, or
but not limited to, the Premises, from any cause whatsoever, unless such damage, loss, or theft
results from the sole negligence, gross negligence or willful misconduct of City, its officers,
agents, or employees.
17.Compliance with Laws. Developer will at all times during the term of this
Agreement promptly observe and comply, at its sole cost and expense, and shall maintain the
Premises and cause its use of the Premises, including without limitation, all Horizontal
Improvements Work, to be performed in accordance with the Permitsand all Governmental
Requirements, including without limitation all applicable federal and State labor laws and
regulations, all permits required to perform the Horizontal Improvements Work. Developer shall
investigate the applicability of and, if and to the extent applicable, pay prevailing wages meeting
the requirements of such laws and regulations. Developer covenants that it will not generate, use,
or store hazardous substances or hazardous waste on the Premises in violation of Environmental
Laws. Developer shall defend, indemnify and hold harmless the City of Tustin from and against
all claims, liabilities, losses, damages and costs, foreseen or unforeseen, which the City of Tustin
may incur by reason of Developer's action or non-action in violation of its obligations under this
Section; provided however, that the foregoing indemnity shall exclude any Excluded Claims. This
provision shall survive the expiration or termination of the License and this Agreement.
18.Data Sharing.Developer agrees to provide the City with copies of all soil test
results. Notwithstanding the provisions of Section 17of this Agreement, and except for the routine
reporting of data incident to a permit application, should Developer discover conditions on the
Premises during the conduct of the Horizontal Improvements Work, that Developer believes may
require reporting to any Governmental Authority (local, regional, state, or federal), Developer
shall, as promptly as reasonably practical, advise the City of such discovery and thereafter provide
City with the field and/or laboratory data pertaining to such discovery. The City shall be
responsible for making whatever report or reports may be required in light of such discovery(ies).
19.Rights of City to Revoke License for Default. This Agreement and the License
granted herebymay be revoked by the City by provision of written notice to Developer,(a)during
the continuation of any default by Developer under this Agreement beyond the notice and cure
period set forth in Section 32of this Agreement;or(b)at any time if the City determines, in its
sole discretion, that the conduct or activities of Developer create health or safety concerns
requiring stoppage of the work.
clause (b)above, Developer shall have the right to provide the City with written notice within three
the dispute. Developer and City shall meet and confer within five (5) Business Days from the
Developer to cure the default asserted by the City and provided that Developer agrees in writing
to take such actions and to promptly prosecute them to completion in a manner satisfactory to the
City in its reasonable discretion, the City shall not unreasonably withhold the reinstatement of the
License and this Agreement.
20.Additional Rules and Regulations Applicable to Use of Premises. In connection
with its use of the Premises, Developer shall comply with the rules and regulations of the City
attached as to this Agreement.
21.Dispute Resolution. In the event of a dispute between the Parties with respect to
this Agreement, the Parties agree that they shall resolve such dispute in accordance with the
[[983,2315,1226,2372][12][B,I,][Times New Roman]]{Original}
provisions of Section 17.1 of the DDA, and the cost of any such proceeding shall be
[[1544,2372,1787,2429][12][B,I,][Times New Roman]]{Original}
borne in accordance with the provisions of Section 17.2 of theDDA and the provisions
[[929,2430,1172,2487][12][B,I,][Times New Roman]]{Original}
of Section 17.8 and 17.9 of the DDA shall apply with respect to such dispute.
22.Governing Law. This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of California.
23.Relationship of Parties; Not an Easement orInterest in Land. Nothing contained in
this Agreement shall be deemed or construed, either by the Parties hereto or by any third party, to
create the relationship of principal and agent or to create any partnership, joint venture or other
relationship between the Parties. Nothing in this Agreement shall create or constitute an easement
in the Premises and this Agreement shall be considered nothing other than a license as set forth
herein.
24.Notices. All notices required by this Agreement shall be provided in writing and
shall be deemed received when (a)personally served;(b)two (2) days after being sent by
registered or certified mail, return receipt requested, postage or charges prepaid, or by recognized
overnight carrier;or(c)one (1) day after receipt by facsimile machine or electronic mail, with
transmission and receipt acknowledged in writing, and addressed to the Party for whom intended
at such Party's address herein specified, or at such other address as such Party may have substituted
therefore by proper notice to the other.
25.
If to Developer:
{insert}
With a copy to:
Rutan & Tucker, LLP
Attn: Kevin Brazil, Esq.
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Fax: (714) 546-9035
Email: kbrazil@rutan.com
If to the City:
City of Tustin
Attn: Jeffrey C. Parker, City Manager
300 Centennial Way
Tustin, CA 92780
Fax: 714-838-1602
Email: jparker@tustinca.org
With a copy to:
Woodruff Spradlin & Smart, APC
Attn: David Kendig, Esq., City Attorney
555 Anton Boulevard, #1200
Costa Mesa, CA 92626
Fax: (714) 415-1183
Email:dkendig@wss-law.com
and:
Armbruster Goldsmith & Delvac LLP
Attn: Amy E. Freilich, Esq., Special Counsel
12100 Wilshire Blvd. Suite 1600 Los Angeles, CA 90025
Fax: (310) 209-8800
Email: amy@agd-landuse.com
26.No Assignment. This Agreement shallnot be assigned by Developer except with
the prior written consent of the City in its sole discretion.
27.Exhibits Incorporated. Each exhibit attached and referred to in this Agreement is
hereby incorporated by reference as though set forth in full where referred to herein.
28.Severability. If any provision of this Agreement or application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement (including the application of such provision to persons or circumstances other than
those to which it is held invalid or unenforceable) shall not be affected thereby, and each provision
of this Agreement shall be valid and enforced to the fullest extent permitted by law.
29.Entire Agreement. This Agreement and the DDA contains the entire agreement of
the Parties with respect to the subject matter and no amendment, change, modification or
supplement to this Agreement shall be valid and binding on any of the Parties unless it is
represented in writing and signed by each of the Parties hereto.
30.Counterparts. This Agreement and any amendments hereto may be executed in
counterparts, each of which is deemed an original and all of which, when taken together constitute
one and the same instrument.
31.Further Assurances. Each of the Parties hereto shall execute and deliver at their
own cost and expense, any and all additional papers, documents, or instruments, and shall do any
and all acts and things reasonably necessary or appropriate in connection with the performance of
its obligations hereunder in order to carry out the intents and purposes of this Agreement.
32.Authority. Each Party warrants that it has the power and authority to enter into this
Agreement and to perform its obligations hereunder. Each individual who signs this Agreement
on behalf of an entity warrants that he/she has been duly authorized to doso and to bind such
entity.
Non-Defaulting Party
33.Default Procedure. A non-
discretion may elect to declare a default under this Agreement in accordance with the procedures
Defaulting Party
any material duty or obligation of said Defaulting Party in accordance with the terms of this
Agreement. However, the Non-Defaulting Party must provide written notice to the Defaulting
Party setting forth the nature of the breach or failure and the actions, if any, required by the
Defaulting Party to cure such breach or failure. The Defaulting Party shall be deemed to be in
action and cure the default within five (5) Business Days after the date of such notice.
34.Limitation on Damages. Developer acknowledges that the City would not have
entered into this Agreement if the City could become liable for damages under or with respect to
this Agreement. Consequently, and notwithstanding any other provision of this Agreement, except
the City shall not be liable in damages under this Agreement to Developer and Developer, on
behalf of itself and each Developer Representative hereby waives any and all rights to claim
damages of any other kind or nature from the City including without limitation, Claims for lost
profits, consequential, incidental, indirect, special, collateral, exemplary or punitive damages.
Exceptas otherwise set forth in this Agreement, in no event shall Developer be liable to the City
for any lost profits, consequential, incidental, indirect, special, collateral, exemplary or punitive
damages in connection with this Agreement or the Horizontal Improvements Work.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK.
SIGNATURES FOLLOW.]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year
first written above.
DEVELOPER:
_____________________________.
a_____________________
By:______________________________
Name:___________________________
Title:____________________________
CITY OF TUSTIN:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:__________________________
Erica Rabe,City Clerk
APPROVED AS TO FORM
By:_________________________
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:_________________________
Amy E. Freilich
DEPICTION OF DEVELOPMENT PARCELS
[[1115,492,1468,549][12][B,I,][Times New Roman]]{to be attached}
DEPICTION OF PORTION OF
MOFFETT DRIVE
[[1115,541,1468,598][12][B,I,][Times New Roman]]{to be attached}
RULES AND REGULATIONS
1.Developer shall comply with all requirements of the Occupational Safety and
Health Administration.
2.Trash disposal shall comply with CR&R Incorporated and City of Tustin standards.
3.Developer shall be required to have and maintain a valid City of Tustin Business
License.
4.Ordinance (Chapter 6 of the City Code) shall
be met at all times.
5.Developer may not access any other areas on the adjacent Tustin Legacy properties
and may not enter any of the buildings on the Tustin Legacy site for any purpose unless approved
in writing by the City.
6.Developer shall ensure controlled access to the Premises is maintained via the
Developer will be responsible for ensuring that no unauthorized persons or vehicles access the
overall Tustin Legacy property. Developer shall ensure the gate remain closed all times while not
in use.
7.Except for ingress and egress, Developer must keep the Gate and adjacent roadways
free and clear at all times. Developershall maintain the existing fence and screening along Tustin
Ranch Road, Victory Road and Park Avenue through the term of the License at its sole cost and
expense.
8.Security and access to Tustin Legacy is currently performed by the City of Tustin
Police Department. The City of Tustin is not responsible for providing security services for
to the Premises shall be permitted only during daylight hours only from 7:00 a.m. until 6:00 p.m.,
Monday through Friday, 9:00 a.m. until 5:00 p.m. on Saturdays. Developer is responsible for
securing the Premises; including keeping the Gate closed and locked during hours when use of the
Premises is not permitted.
9.Hours of operation shall be according to Tustin City Code Section 4616 which
limits construction activities to between 7:00 a.m. and 6:00 p.m. Monday through Friday, and
between 9:00 a.m. and 5:00 p.m. on Saturdays, and at no time on Sundays unless otherwise
approved b
Thanksgiving Day, and Christmas Day.
10.This development shall comply with all provisionsof the City of Tustin Water
Quality Ordinance and all Federal, State, and Regional Water Quality Control Board rules and
regulations, including keeping the Premises, and public roadways, including but not limited to
Tustin Ranch Road,Victory Road, Moffett Drive, and Park Avenueclear of any dirt or mud
tracked out of the Premises.
11.In addition to access required under other provisions of this Agreement, the City,
and the Department of Navy and their representatives shall be allowed access to the Premises at
all times throughout the term of this Agreement for any purpose without prior written notice to
Developer. Developer shall ensure that the City has a current roster of on-call personnel and their
phone numbers. Developer shall have no claim against the City for exercise of their rights of
access hereunder.
12.Developer shall not make or permit to be made any use of the Premises or any part
thereof (i)which would violate any of the covenants, agreements, terms, provisions, and conditions
of this Agreement; or (ii)which would directly or indirectly violate any federal, state or local law,
ordinance, rule or governmental regulation; or (iii)which will suffer or permit the Premises or any
part thereof to be used in any manner or permit anything to be brought onto or kept thereon which,
in the reasonable judgment of City, shall in any way impair or tend to impair the character,
reputation or appearance of the Premises or which will impair or interfere with or tend to impair
or interfere with any of the services performed by City.
13.Developer shall not display, inscribe, print, maintain or affix on any place in or
about the Premises any sign, notice, legend, direction, figure or advertisement, except as may be
approved by City in writing.
14.Developer shall complywith all laws, enactments, rules, ordinances and regulations
of all governmental authorities relating or applicable to Developer's occupancy of the Premises
governing use of the Premises. Developer shall obtain all permits and licenses required by the
City of Tustin and shall pay all required fees.
15.Developer shall allow no dangerous or hazardous condition to be created or caused
on the Premises.
FORM OF RELEASE
SPACE ABOVE THIS LINE FOR
RELEASE AND HOLD HARMLESS REGARDING CERTAIN HORIZONTAL
IMPROVEMENTS WORKCLAIMS RELATING TO REAL PROPERTY
City
The and CALATLANTIC GROUP, INC., a Delaware
Developer
ly entered into (a)that certain Tustin Legacy Disposition and
[[1960,1722,2010,1779][12][B,I,][Times New Roman]]{ [[1977,1722,2258,1779][12][B,I,][Times New Roman]]as amended [[2226,1722,2283,1779][12][B,I,][Times New Roman]]}
Development Agreement For Disposition Parcel 6B dated__________, 201_,
DDA
;and(b)that certain License and
License Agreement
Agreement for Site Development dated __________, 2018
to certain grading and horizontal improvements work on the Development Parcels (as defined in
the DDA) owned by City in the City of Tustin, County of Orange, State of California, more
1
particularly described in the legal description attached hereto as and incorporated
Property
.Pursuant to the License Agreement, the City agreed to
provide a release to Developer under certain circumstances upon termination of the DDAprior to
Close of Escrow(as defined in the DDA) pursuant to the DDA.This Release and Hold Harmless
Regarding Certain Horizontal Improvements WorkClaims Relating to Real Property is referred to
herein as this
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the City hereby agrees as follows:
1.Release. City, on behalf of itself, and all successor owners of fee title to all or any
portion of the Property (other than a home buyer who purchases a lot improved with a residence
or any utility or governmental authority acquiring any portion or interest in the Property)
Successor Owners
ficers, elected officials
beneficiaries, trustees, shareholders, partners, heirs, personal representatives, successors and
Releasing Parties
recover from and fully and irrevocably releases Developer and its officers and employees, agents
and, except as set forth in the last sentence of Section 2of this Release,Developer Representatives
Released Parties
(as claims,
actions, causes of action, demands, orders, penalties, losses, damages, liabilities, costs, expenses
Claims
Parties may now have or hereafter acquire
arising from or related to the performance by the Developer or consultants or
Developer RepresentativesGrading Permit
[
#______________; ____________________{add other permits} ]
on the Property (the
Horizontal Improvements Work
Horizontal Improvements WorkClaims
foregoing release: (A)any of the foregoing Horizontal Improvements WorkClaims that is the
result of the willful misconduct or fraud of Developer or any Developer Representative;(B)any
breach by Developer of any of the covenants or obligations set forth in this Release Agreement;
and (C)any Claims other than Horizontal Improvements WorkClaims. For the avoidance of
doubt, the foregoing release shall not be construed to release the Released Parties from any liability
or Claim by theCity under the DDAor the License Agreement other than with respect to any
design defect or construction defect relating to the Horizontal Improvements Workperformed on
the Property by the Released Parties
.
1.Successor Owner Indemnity, Agreement to Defend and Hold Harmless. All
Successor Owners (but expressly excluding the City) shall indemnify, defend and hold harmless
the Released Parties from and against any and all Claims brought by homeowners with respect to
builder liability arising from or related to the Horizontal Improvements Workperformed by the
Released Parties on the Premises under the License Agreement; excepting from the foregoing
indemnity (A)any Claim that is the result of the willful misconduct or fraud of Developer or any
Developer Representative;and (B)any breach by Developer of any of the covenants or obligations
set forth in this Release Agreement. Notwithstanding anything to the contrary set forth above, any
Successor Owner may enter into a new contractual agreement with any contractor or consultant
New Contract
who performed any work on the Property on behalf of the Developer (a ) and the
release and indemnification provided in this Release Agreement shall not in any way affect or limit
any rights or claims such Successor Owner would have against any such contractor or consultant
arising from or related to such New Contract.
2.Legal Fees and Costs. If City, Developer or any Successor Owner institutes any
action, suit, proceeding, counterclaim or other proceeding for any relief against another Party,
Action
hereunder then the Prevailing Party in such Action shall be entitled to have and recover of and
from the other Party all costs and expenses of the Action, including (a)
which, regardless of which party is the Prevailing Party,shall be payable at the contractual hourly
in no event more than $200
per hour;and (b)costs actually incurred in bringing and prosecuting such Action and/or enforcing
Decision
be deemed to have accrued on the commencement of such Action and shall be paid whether or not
such Action is prosecuted to a Decision. Any Decision entered in any final judgment shall contain
a specific provision providing for the recovery of all costs and expenses of suit, including
Costs
perfecting and executing such judgment. For the purposes of this paragraph, Costs shall include in
addition to Costs incurred in prosecution or defense of the underlying action, reasonable att
fees, costs, expenses and expert fees and costs incurred in the following: post judgment motions
and collection actions,contempt proceedings,garnishment, levy, debtor and third party
Prevailing
examinations,discovery,bankruptcy litigation and appeals of a
Party
party who agrees to dismiss an Action in
covenants allegedly breached, or obtains substantially the relief sought by such party.
3.Termination and Amendments.Cityshall not terminate, amend or modify this
Release Agreement without the prior written consent of Developer.This Release Agreement shall
th
automatically terminate, without further action of any party, upon the fifteenth (15) anniversary
of the date set forth immediately below.
[[450,1263,1102,1320][12][,I,][Times New Roman]]{signatures on following page}
IN WITNESS WHEREOF, the City has executed this Release and Hold Harmless
Regarding Agreement Certain Horizontal Improvements WorkClaims Relating to Real Property
on________________, 20[[837,416,963,473][12][,I,][Times New Roman]]___.
CITYOF TUSTIN:
By:
Jeffrey C. Parker,
City Manager
ATTEST:
By:__________________________
Erica Rabe,City Clerk
APPROVED AS TO FORM
By:_________________________
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:_________________________
Amy E. Freilich
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
FORM OF RELEASE
LEGAL DESCRIPTION OF PROPERTY
ATTACHMENT 23
CALCULATION OF REPURCHASE PRICE
The Repurchase Price shall be:1.) The land price associated with the Repurchased Property as
identified in Table 1for units of which a building permit has not been issued;and 2.) the repurchase
value associated with the pro rata share of the completedHorizontal Improvements.
Those Buildings and the Phases upon which such Buildings are located for which Developer has
Default which permit
are excluded under the definition of Repurchased Property pursuant to Section 16.3.1 of the DDA.
Table 1Land Price
Product
Product LineTotal PriceUnitsPrice Per Unit
Type
A-IconSFD$12,857,05557$225,562
B-VelocityFlats$10,107,26060$168,454
C-FleetTH$12,579,540101$124,550
Total LandPrice$35,543,855218
Pro Rata Share of Completed Horizontal Improvements
The repurchase valueassociated with Horizontal Improvements shall be calculated based on the
actual Horizontal Improvement Costs of completedHorizontal Improvementsas of the dateCity
delivers written notice to Developer exercising theRight of Purchase,and for avoidance of doubt
shall exclude any Developer overhead, general administration, or financing costs associated with
the Horizontal Improvements.
The completedHorizontal Improvements repurchase valuewill be a pro rata share of the remaining
units being repurchased;calculated by dividing actual Horizontal Improvement Costs of the
completedHorizontal Improvementsby the total number of units (218)approved within the
Development Parcels,and then multiplying by the total number of units within the Phases ofthe
Repurchased Property.
ATTACHMENT 24
MAXIMUM SPECIAL TAXES FOR DEVELOPED PROPERTY
FOR FISCAL YEAR 2018-19
COMMUNITY FACILITIES DISTRICT NO. 2018-1
Land Use Fiscal Year 2018-19
Land Use
ClassMaximum Special Tax
1FLATS (>= 2,500 SF)$2,416 PER DWELLING UNIT
2FLATS (2,000 -2,499 SF)$2,267 PER DWELLING UNIT
3FLATS (1,500 -1,999 SF)$1,889 PER DWELLING UNIT
4FLATS (< 1,500 SF)$1,809 PER DWELLING UNIT
5SFD (>= 2,800 SF)$2,717 PER DWELLING UNIT
6SFD (2,500 -2,799 SF)$2,585 PER DWELLING UNIT
7SFD (2,200 -2,499 SF)$2,240 PER DWELLING UNIT
8SFD (< 2,200 SF)$2,177 PER DWELLING UNIT
9TOWNHOMES (>= 2,125 SF)$1,852 PER DWELLING UNIT
10TOWNHOMES (1,875 -2,124 SF)$1,690 PERDWELLING UNIT
11TOWNHOMES (1,625 -1,874 SF)$1,617 PER DWELLING UNIT
12TOWNHOMES (< 1,625 SF)$1,408 PER DWELLING UNIT
Increase in the Maximum Special Tax
On each July 1, commencing on July 1, 2018, the Maximum Special Tax for Developed Property
Consumer Price Index
shall be increased annually by the greater of the change in the during the
twelve (12) months prior to December of the previous Fiscal Year and two percent (2.00%), not
to exceed four percent (4.00%). Any incremental adjustment that exceeds 2.00% shall be rounded
to the nearest one-tenth of a percent.
[[1534,2416,2059,2473][12][,I,][Times New Roman]]All items in Los Angeles [[2028,2416,2078,2473][12][,I,][Times New Roman]]- [[2043,2416,2261,2473][12][,I,][Times New Roman]]Riverside
[[2233,2416,2283,2473][12][,I,][Times New Roman]]-
[[300,2474,431,2531][12][,I,][Times New Roman]]Oran [[404,2474,1673,2531][12][,I,][Times New Roman]]ge County, CA, all urban consumers, not seasonally adjusted
Bureau of Labor Statistics (Series ID: CUURA421SA0), measured as of the month of December
in the calendar year that ends in the previous Fiscal Year. In the event this index ceases to be
published, the Consumer Price Index shall be another index as determined by the CFD
Administrator that is reasonably comparable to the Consumer Price Index.
ATTACHMENT 27
FORM OF GUARANTY
GUARANTY AGREEMENT(Guaranty
Thisday of
Effective Date[[1985,680,2217,737][12][B,I,][Times New Roman]]{confirm}
__________________, 20__ by Lennar Corporation , a
Guarantor
corporation formed under the laws of the State of Delaware),in favor of the CITY
City
RECITALS
Developer
A.CalAtlantic Group, Inc., a Delaware Corporation[[1953,1011,2300,1068][12][,I,][Times New Roman]]{or if DDA is
[[1089,1067,1353,1124][12][B,I,][Times New Roman]]CalAtlantic [[1346,1067,1403,1124][12][B,I,][Times New Roman]]}
[[300,1068,898,1125][12][,I,][Times New Roman]]subsequently assigned after [[1365,1068,1421,1125][12][,I,][Times New Roman]]) [[1387,1068,1437,1125][12][,,][Times New Roman]], [[1410,1068,1526,1125]
[12][,,][Times New Roman]]has [[1487,1068,2300,1125][12][,,][Times New Roman]]entered into that certain Tustin Legacy
Disposition and Development Agreement for Disposition Parcel 6B, dated as of
________________ (including all Attachments thereto, which as may be amended, updated or
DDA
acquire the Property (as defined in the DDA). Initially capitalized terms used and not defined
herein shall havethe meanings set forth inthe DDA.
[[620,1462,670,1519][12][B,I,][Times New Roman]]{ [[636,1462,1446,1519][12][B,I,][Times New Roman]]If applicable, add following sentence [[1419,1462,1485,1519][12][B,I,][Times New Roman]]:}
B.[[600,1463,650,1520][12][,I,][Times New Roman]][ [[1471,1463,2299,1520][12][,I,][Times New Roman]]Concurrently with the delivery of this
[[1894,1520,2134,1577][12][B,I,][Times New Roman]]Developer
[[300,1521,554,1578][12][,I,][Times New Roman]]Guaranty, [[519,1521,778,1578][12][,I,][Times New Roman]]CalAtlantic [[764,1521,1294,1578][12][,I,][Times New Roman]]has assigned the
DDA to [[1268,1521,1861,1578][12][,I,][Times New Roman]]__________, a __________ [[2148,1521,2198,1578][12][,I,][Times New Roman]], [[2175,1521,2300,1578][12][,I,][Times New Roman]]and
[[298,1578,386,1635][12][,I,][Times New Roman]]De [[358,1578,871,1635][12][,I,][Times New Roman]]veloper is acquiring the [[857,1578,1383,1635][12][,I,][Times New Roman]]Property under
the DDA [[1364,1578,1414,1635][12][,I,][Times New Roman]]. [[1372,1578,1426,1635][12][,I,][Times New Roman]]] [[1428,1578,2299,1635][12][,,][Times New Roman]]Under the terms of the
DDA, Developer
will be required to perform certain design work and construct the Improvements on the
Development Parcels.[[734,1693,788,1750][12][,I,][Times New Roman]]]
[[600,1800,1099,1857][12][B,I,][Times New Roman]]{Revise as applicable:}
C.Guarantor directly or indirectly owns100%of Developer
and thus has a substantial interest in Developer and will derive benefit from the acquisition of the
Property and the development and sale or lease of the Project.
AGREEMENT
For good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and inorder to induce City to convey the Development Parcels to Developer, City
has required that the Guarantor execute and deliver this Guaranty to City. Each Guarantor hereby
jointly and severally makes the guaranties, obligations, covenants and agreements set forth below
in this Guaranty.
Section 1.Guaranty.
1.1Payment and Completion Obligations. The Guarantor absolutely and
unconditionally guaranteesall obligations of Developer under the DDA and Other Agreements,
including, but not limited to, the the items set forth in Section1.1.1and 1.1.2below.
Guarantor shall pay any and all costs, including all Development
Costs(as such term is defined in the DDA), required and cause any and all work to be performed
as may be required to carry out and Complete (as such term is defined in the DDA) each of the
following elements of the Project if Developer shall fail to timely perform its obligations under
the DDA, all as required by and in accordance with, the terms of the DDA(collectively, the
Completion Obligations
(a)Design, construction and Completion of the required
Improvements , including, for avoidance of doubt, Completion of the Horizontal Improvements
andthe Vertical Improvements.as more particularly described in the DDA in accordance with all
Governmental Requirements, Entitlements and the requirements of the DDA, including the Scope
of Development attached thereto as Attachment 8.
(b)ions with respect to the Ongoing
Matters;
(c)The indemnities and other obligations of Developer pursuant
toSections4.5.2(f),5.5,8.8,8.9,8.11,8.12,10.1,10.2,11.1(including payment of all deductible
amounts) and 17.12of the DDA, including, to the extent applicable, during the Additional Liability
Period; and
(d)Payment of all amounts and discharge of all obligations of
Developer under the Profit Participation Agreement and the City Deed of Trust.
Theguaranteeof the Completion of the foregoing work and the
performance of the foregoing obligations shall be an absolute obligation of Guarantor in the event
that Developer fails to commence or Complete, in a lien-free condition(as required by the DDA),
construction of the foregoing work within the time period set forth in the Schedule of Performance
(subject to any extension permitted by the DDA for Force Majeure Delay.The Guarantor also
absolutely and unconditionally guaranteesthat Guarantor shall pay any and all costs required and
cause any and all work to be performed as may be required to carry out the following obligations
as required by and in accordance with the terms of the DDAand the Other Agreementsif
Developer shall fail to timely perform its obligations under the DDAand the Other Agreements
Payment Obligations
(collectively, and collectively with the Completion Obligations, the
Payment and Completion Obligations
(a)Payment of all of the costs and expenses incurred bythe City
arising in connection with the exercise by the City of any or all of its remedies under the DDA and
the Other Agreements with respect to Developerto the extent payable by Developer pursuant to
the terms of the DDAand the Other Agreements, the work covered by Section1.1hereof, the
Development Parcelsor any Improvements thereon. The foregoing shall specifically include any
costs and expenses incurred by the City arising from its exercise of the Right of Repurchase or
Right of Reversion with respect to theDevelopment Parcels as provided in Sections16.3and 16.4
of the DDA, respectively. Without limiting the foregoing, such amounts shall specifically include
any amount paid by City to obtain the release of any and all Construction Liens and/or Mortgages,
as well as any amounts paid to obtain the release of any other liens that came into existence as a
excluding the Repurchase Price applicable to any Reacquired Property actually acquired by the
City pursuant to the Right of Repurchase; providedthat the City shall be entitled to retain the
Reacquired Property so acquired in its entirety, notwithstanding any contribution or payment made
by Developer, or by Guarantorpursuant to this Guaranty. Guarantor acknowledgesand agreesthat
the foregoing obligation of Guarantor to pay costs and expenses incurred by the City arising from
its exercise of its rights under Sections16.3and 16.4of the DDAshall continue; and
(b)Payment of all of the Development Costs incurred to cause
the timely Completion of the work referred to in Section1.1.2hereof, such that the Development
Parcelsshall be in a lien-free condition as required by the DDA.
1.2Payment of Enforcement Costs. In addition to its obligations in
Section1.1,the Guarantor agreesto pay all costs and expenses incurred by City, including
reasonable expert witness fees, costs of depositions and other discovery, travel expenses, exhibit
preparation, and courier, postage, communication and document copying expenses), in enforcing
Enforcement Payment Obligation
Section1.2shall
survive the termination of this Guaranty.
1.3Performance of Work. The work required for Guarantor to satisfy its
Payment and Completion Obligations: (a) shall be performed in accordance with the Scope of
Development and within the time periods set forth in the Schedule of Performance all as and to
the extent set forth in the DDA;provided, however, that if the time periods set forth in the Schedule
of Performance have expired, the City and Guarantor shall meet and confer in good faith to revise
the Schedule of Performance as reasonably necessary to provide adequate time to Guarantor to
satisfy its obligations hereunder;(b) shall be performed in accordance with the other requirements
for construction of the Project set forthin the DDA; and (c) shall be diligently pursued by the
Guarantor to Completion of the Projectand issuance of a Certificate of Compliance for the
Development Parcels.
Guaranteed Obligations
1.4Guaranteed Obligations
and Completion Obligations and the Enforcement Payment Obligation.
Section 2.Performance of Payment and Completion Obligations upon Default by
Developer.
2.1Default by Developer.If Developer is in Material Default under the DDA
or the Other Agreementswith respect to any of the Guaranteed Obligations, then City may, but
Guaranty Notice
designed to provide notice to Guarantor of such default. The Guarantor, promptly after receipt of
the Guaranty Notice shall perform its Payment and Completion Obligations and the Enforcement
Payment Obligation,providedthat the Guarantor doesnot need to commence any such
performance obligationsuntil receipt of a Guaranty Notice. The Guarantorwill take whatever
actions may be necessary to perform the Guaranteed Obligations, including the following:
(a)Diligently and expeditiously proceed to ensure the
Completion of the Project at the Guarantors sole cost and expense, at the times (subject to
Section1.3hereof) set forth in the DDA and subject to theotherterms and conditions set forth in
the DDA;
(b)To the extent unpaid, fullypay and discharge all
Development Costs incurred or required to be incurred in connection with the Completion of the
Project; and
(c)Pay any amounts necessary to release and discharge any
with the Development Parcels or the Completion of the Improvements on the Development Parcels
, or in the alternative contest the same subject to the terms and conditions set forth in the DDA.
2.2Difficulty or Expense of Completion of the Project Does Not Excuse
Guarantor or Guaranty. Guarantors obligations under this Guaranty will remain in full force and
effect until the Guaranteed Obligations are fully and finally performed, regardless of whether the
Guarantor or any other Person determines that Completion of the Project is difficult, more
Unanticipated Expense or Delay
the Completion of the Project more costly or would delay the Completion of the Project, such
events and circumstances specifically including the following matters: (a)a casualty that affects
the Parcel or any Improvements that may have been constructed; (b)the discovery of unanticipated
soils conditions or Hazardous Materials in, on, or under the Development Parcels;
(c)Governmental Requirements or court orders applicable to the Project; (d)any lack of debt or
equity financing for Development Costs; (e)any change in market conditions and (f)other events
or circumstances beyond the control of Developer or the Guarantor relating to the Projectother
-performance of its obligations under the DDA.
2.3No Discharge until Completion. It is the intent of the Guarantor and City
that the obligations and liabilities of the Guarantor hereunder are absolute, irrevocable and
unconditional under any and all circumstances and that until the Guaranteed Obligations are fully
and finally performed, the obligations and liabilities of Guarantor hereunder shall not be
discharged or released, in whole or in part, by any act or occurrence thatmight, but for the
provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
The Guaranteed Obligations shall be deemed to be fully and finally performed for purposes of this
Guaranty and this Guaranty shall terminate on the date on which the Certificate of Compliance is
recorded by the City.
Section 3.Absolute, Irrevocable and Unconditional Guaranty.
3.1Irrevocable Guaranty. This Guaranty is an absolute, irrevocable and
unconditional guaranty of performance. To the extent permitted by applicable law, thisGuaranty
shall be effective as a waiver of, and each Guarantor hereby expressly waives, any right to which
the Guarantor may otherwise have been entitled, whether now existing under statute, at law or in
equity, or arising under any statute enacted after the date hereof or arising under any doctrine of
law or equity promulgated after the date hereof to require City to take prior recourse or proceedings
against any collateral, security or Person. It shall not be necessary for City, in order to enforce
such payment or performance by the Guarantor, first to institute suit or pursue or exhaust any rights
or remedies against Developer orany other Person liable on such indebtedness or for such
performance, or to enforce any rights against any security given to secure such indebtedness or
performance, or to join Developer or any other Person liable for the performance of the Guaranteed
Obligations or any part thereof in any action to enforce this Guaranty, or to resort to any other
means of obtaining performance of the Guaranteed Obligations.
3.2Demand Against the Guarantor. City may bring suit or make a demand
against Developer or against Guarantoror any other parties who have signed this Guaranty or any
other guaranty covering all or any part of the Guaranteed Obligations, or against any one or more
of them, separately or together, without impairing the rights of City against Guarantor.
3.3Independent Guaranty. The obligations of the Guarantor under this
Guaranty are independent of and in addition to the obligations and liabilities of Developer under
the DDA and under the Other Agreements. This Guaranty is independent of (and shall not be
limited by) any other guaranty now existing or hereafter given by Guarantor, or any other Person
under or in connection with the Property, the Improvements, the DDA or the Other Agreements.
The liability of theGuarantor under this Guaranty is in addition to any and all other liability the
Guarantor may have in any other capacity with respect to Developer, including, if applicable, any
direct or indirect ownership or control of any debt and/or equity securities of Developer or any
Controlling Person of the Developer.
Section 4.Certain Agreements and Waivers by the Guarantor.
4.1Waivers. Guarantor agrees that, except in the event of full performance of
the Guaranteed Obligationsor as otherwise provided in this Guaranty, (a)
remedies nor the Guarantorsobligations under the terms of this Guaranty shall be released,
diminished, impaired, reduced or affected by any one or more of the following events, actions,
facts, or circumstances, (b)to the extent permitted by applicable law,Guarantor waives any rights,
claims or defenses arising from any such events, actions, facts, or circumstances, and (c)the
liability of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
(a)any limitation on the liability of, or recourse against, any
other Person, including City, in the DDA or any of the Other Agreements or arising under any law;
(b)any claim or defense that this Guaranty was made without
consideration or is not supported by adequate consideration or that the obligations ofthe Guarantor
hereunder exceed or are more burdensome than those of Developer under the DDAor the Other
Agreements;
(c)the taking or accepting of any other security or guaranty for,
or right of recourse with respect to, any or all of the Guaranteed Obligations;
(d)any release, surrender, abandonment, exchange, alteration,
sale or other disposition, subordination, deterioration, waste, failure to protect or preserve,
impairment, or loss of, or any failure to create or perfect any lien or security interest with respect
to, or any other dealings with, any collateral or security at any time existing or purported, believed
or expected to exist in connection with any or all of the Guaranteed Obligations, or any impairment
son or collateral;
(e)whether express or by operation of law, any partial release
of the liability of Guarantor hereunder (except to the extent expressly so released by City with
respect to this Guaranty) or any complete or partial release of Developer or any other Person liable,
directly or indirectly, for the performance of any or all of the Guaranteed Obligations;
(f)the death, insolvency, bankruptcy, disability, dissolution,
liquidation, termination, receivership, reorganization, merger, consolidation, change of form,
structure or ownership, sale of all assets, or lack of corporate, partnership or other power of
Developer or any other Person at any time liable for the performance of any or all of the Guaranteed
Obligations;
(g)the death, insolvency, bankruptcy, disability, dissolution,
liquidation, termination, receivership, reorganization, merger, consolidation, change of form,
structure or ownership, sale of all assets, or lack of corporate, partnership or other power of either
Guarantor or its respective successors or assigns;
(h)either with or without notice to or consent of Guarantor, any
renewal, extension, modification, supplement, subordination or rearrangement of the terms of any
or all of the Guaranteed Obligations and/or the DDA or any of the Other Agreements or any other
agreements that may have been executed by Developer, City or any third party affecting the
obligations of Developer or City under the DDA, or performance (including changes with respect
to the construction of the Improvements) or any other terms thereof, or any waiver, termination,
or release of, or consent to departure from, any of the DDA, the Other Agreements, any other
agreements that may have been executed by Developer, City or any third party affecting the
obligations of Developer orCity under the DDA, the Other Agreements or any other guaranty of
any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or
compromise that may be granted from time to time by City to Developer or to any other Person at
anytime liable for the performance of any or all of the Guaranteed Obligations;
(i)any neglect, lack of diligence, delay, omission, failure, or
refusal of City to take or prosecute (or in taking or prosecuting) any action for the collection or
enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action
to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security
therefor, or to exercise (or in exercising) any other right or power with respect to any security
therefor, or to take or prosecute (or in taking or prosecuting), or any failure to sell or otherwise
dispose of in a commercially reasonable manner any collateral securing any or all of the
Guaranteed Obligations;
(j)any failure of Cityto notify Guarantor of any creation,
renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the
DDA or any of the Other Agreements or any of the Guaranteed Obligations or any part thereof, or
of any release of or change in any security, or of the occurrence or existence of any Material
Default, or of any other action taken or refrained from being taken by City against Developer or
any security or other recourse, or of any new agreement between City and Developer, it being
understood that except as expressly set forth in this Guaranty, City shall not be required to give
Guarantor any notice of any kind under any circumstances with respect to or in connection with
the Guaranteed Obligations, any and all rights to other notice Guarantor may have otherwise had
being hereby waived by the Guarantor, and except for notices(s) expressly required to be delivered
to Guarantor under this Guaranty, Guarantor shall be responsible for obtaining for itself
information regarding Developer and any collateral, including any changes in the business or
financial condition of Developer or any collateral, and Guarantor acknowledges and agrees that
City shall have no duty to notify either Guarantor of any information which City may have
concerning Developer or any collateral;
(k)the existence of any claim, counterclaim, set-off or other
right that either Guarantor may at any time have against Developer, or any other Person, whether
or not arising in connection with this Guaranty, the DDA, or any Other Agreements;
(l)the unenforceability of all or any part of the Guaranteed
Obligations against Developer, whether because the Guaranteed Obligations exceed the amount
permitted by law or violate any usury or other law(subject to the provisions of Section12below),
or because the Persons creating the Guaranteed Obligations acted in excess of their authority, or
because of a lack of validity or enforceability of or defect or deficiency in the DDA or the Other
Agreements, or because Developer has any valid defense, claim or offset with respect thereto, or
or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether
Developer or any other Person be found not liable on the Guaranteed Obligations, or any part
thereof, for any reason (and regardless of any joinder of Developer or any other Personin any
action to obtain payment or performance of any or all of the Guaranteed Obligations);
(m)any order, ruling or plan of reorganization emanating from
proceedings under Title11 of the United States Code with respect to Developer or any other
Person, including any extension, reduction, composition, or other alteration of the Guaranteed
Obligations, whether or not consented to by City, or any action taken or omitted by City in any
such proceedings, including any election to have City's claim allowed as being secured, partially
secured or unsecured, any extension of credit by City in any such proceedings or the taking and
holding by City of any security for any such extension of credit;
(n)any other condition, event, omission, action that would in the
absence of the provisions of this Section4result in the release or discharge of Guarantor from the
performance or observance of any obligation, covenant or agreement contained in this Guaranty
or any other agreement;
(o)except as provided in this Guaranty, any notice to either
Guarantor of the existence of or the extending to Developer of any grace or cure period for the
performance of any of the Guaranteed Obligations or any failure to provide notice thereof;
(p)any defense of waiver, release, discharge in res judicata,
statute of frauds, fraud, or ultra vires acts that may be available to Developer in respect of the DDA
or any of the Other Agreements;
(q)to the fullest extent permitted by law: (A)any defense
the application of Section1111(b)(2) of theBankruptcy Code; and (B)without limiting the
generality of any other provision hereof, all rights and benefits that might otherwise be available
to either Guarantor under California Civil Code Sections2787 through 2855, inclusive, including
without limitation any rights of subrogation, reimbursement, indemnification, and contribution and
any other rights and defenses that are or may become available to the Guarantor by reason of such
provisions of the California Civil Code;
(r)the benefit of any statute of limitations affecting the liability
ofDeveloper under the DDA or any of the Other Agreements;
(s)any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Developer in respect of the Guaranteed Obligations or
Guarantor in respect of this Guaranty; and/or
(t)any early termination of any of the Guaranteed Obligations,
except as expressly agreed to in writing by City, it being agreed that, among other things, that
Guarantor shall be obligated to pay all costs and expenses incurred by the City in its exercise of
its rights under Section16.3and Section16.4of the DDA.
(i)credit
of such obligationsmade to or for the benefit of the City, but without exoneration of either
Guarantor in the event that the City accepts something other than prompt and full performance of
any of the Guaranteed Obligations by Developer, and (ii) all contractual rights, remedies and
defenses of the Developer under the DDA andthe Other Agreements.
4.2Additional Waivers.
Without limiting any of the waivers contained in Section4.1,to the
extent permitted by applicable law, Guarantorwaives all rights and defenses that the Guarantor
igations may be, or may be deemed to be, secured
by real property. This means,among other things:
(a)The City may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by Developer.
(b)If the City forecloses on any real property collateral pledged
by Developer: (i)the amount of the obligation owed to the City may be reduced only by the net
price for which that collateral is sold at the foreclosure sale or proceedings, even if the collateral
is worth more than the sale price and (ii)the City may collect from Guarantor even if the City, by
foreclosing on the real property collateral, has destroyed any right the Guarantor may have to
collect from the Developer.
This is an unconditional and irrevocable waiver of anyrights and defenses Guarantor may have
because the Developer's obligations may be, or may be deemed to be, secured by real property.
These rights and defenses include, but are not limited to, any rights or defenses based upon
Section580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
Without limiting any of the waivers contained in Section4.1,
Guarantor hereby waives any rights or defenses the Guarantor may have in respect of his or her
obligations as a guarantor by reason of any election of remedies by the creditor.
Without limiting the generality of any other waiver or provision of
this Guaranty, Guarantor waives any and all benefits or defenses under California Civil Code
Sections2899 and 3433, Chapter 2 of Title14 of the California Civil Code and California
Commercial Code Section 3605.
4.3Preferences. In the event any payment by Developer or any other Person
to City is held to constitute a preference, fraudulent transfer or other voidable payment under any
bankruptcy, insolvency or similar law, or if for any other reason City is required to refund such
payment or pay the amount thereof to any other Person, such payment by Developer or any other
Person to City shall not constitute a release of Guarantor from any liability hereunder, and this
Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release,
surrender or discharge by City of this Guaranty or of the Guarantor or the prior expiration of this
Guaranty), as the case may be, with respect to, and this Guaranty shall apply to, any and all
amounts so refunded by City or paid by City to another Person which amounts shall constitute part
expenses paid or incurred by City in connection with any such event.
4.4Defenses. Guarantor waives, to the extent permitted by applicable law,
all rights and defenses arising out of an election of remedies by City, including exercise by the
City of its Right of Reversion upon occurrence of a Reversion Event or a repurchase of the Property
California Code of Civil Procedure Section580d or otherwise.
4.5Anti-Deficiency Waivers. Guarantor waives, to the extent permitted by
applicable law,(a)any defenses the Guarantor may have by reason of an election of remedies by
City, and (b)any rights or defenses the Guarantor may have by reason of protection afforded to
Developer with respect to the Guaranteed Obligations pursuant to the anti-deficiency or other laws
de of Civil
Procedure Sections580a, 580b, 580d or 726.
4.6Waiver of Notice of Acceptance. Guarantor waives notice of acceptance
of this Guaranty.
4.7No Limitation on Waivers. No provision or waiver in this Guaranty shall
be construed as limiting the generality of any other provision or waiver contained in this Guaranty.
All of the waivers contained herein are irrevocable and unconditional and are intentionally and
freely made by the Guarantor.
Section 5.Subordination.
If, for any reason whatsoever, Developer is now or hereafter becomes indebted, directly or
indirectly to Guarantor including, without limitation, by operation of California Civil Code
Sections 2847 and 2848, or any successor statutes or similar law (any such indebtedness being
Subordinated Debt
(a)The Subordinated Debt and all interest thereon and all liens,
security interests and rights now or hereafter existing with respect to property of Developer
securing the Subordinated Debt shall, at all times, be subordinate in all respects to the Guaranteed
Obligations and to all liens, security interests and rights now or hereafter existing to secure the
Guaranteed Obligations, until the Guaranteed Obligations have been paid or performed in full;
(b)Guarantor shall notbe entitled to enforce orreceive
payment, directly or indirectly, of any of the Subordinated Debt until the Guaranteed Obligations
have been fully and finally performed; provided, however, that so long as no Material Default
under the DDA or the Other Agreements shall have occurred and be continuing, Guarantor shall
not be prohibited from receiving such, (i)reasonable management fees or reasonable salary from
Developer, and (ii)distributions from Developer in an amount equal to any income taxes imposed
on such Guarantor which ar
(c)In the event of receivership, bankruptcy, reorganization,
arrangement or other debtor relief or insolvency proceedings involving Developer as debtor, City
shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder
and shall have the right to receive directly from the receiver, trustee or other custodian, dividends
and payments that are payable upon any obligation of Developer to the Guarantor now existing or
hereafter arising, and to have all benefits of any security therefor, until the Guaranteed Obligations
have been fully and finally performed. If, notwithstanding the foregoing provisions, either
Guarantor should receive any payment, claim or distribution that is prohibited as provided above
in this Section 5, the Guarantor shall pay the same to City immediately, the Guarantor hereby
agreeing that it shall receive the payment, claim or distribution in trust for City and shall have
absolutely no dominion over the same except to pay it immediately to City; and
(d)Guarantor shall promptly upon request of City from time to
time execute such documents and perform such acts as City may require to evidence and perfect
its interest and to permit or facilitate exerciseof its rights under this Section5,including execution
and delivery of proofs of claim, further assignments and security agreements, and delivery to City
of any promissory notes or other instruments evidencing indebtedness of Developer to the
Guarantor. All promissory notes, accounts receivable ledgers or other evidences, now or hereafter
held by Guarantor, of obligations of Developer to Guarantor shall contain a specific written notice
thereon that the indebtedness evidenced thereby is subordinated under and is subject to the terms
of this Guaranty.
Section 6.Other Liability of the Guarantor or Developer.
6.1Other Liability. If Guarantor is or becomes liable, by endorsement or
otherwise, for any indebtedness owing by Developer to City other than under this Guaranty, such
liability shall not be in any manner impaired or affected hereby, and the rights of City hereunder
shall be cumulative of any and all other rights that City may have against the Guarantor. If
Developer is or becomes obligated to City for any liabilities or indebtedness other than or in excess
of the Guaranteed Obligations, any payment received or recovery realized upon such other
liabilities or indebtedness of Developer to City may be applied by City to such other liabilities or
indebtedness.
6.2Net Worth and Liquidity Covenants.
(a)As of the Effective Date, Guarantorhas, and during the term
of this Guaranty shall maintain, a Net Worth of not less than Two Hundred Fifty MillionDollars
($250,000,000) and LiquidAssets of not less thanTwenty FiveMillion Dollars ($25,000,000)
Minimum Liquidity Standards
(collectively, the as determined on the last day of each fiscal
quarter of Guarantor and evidenced in financial statements filed with the Securities and Exchange
Net Worth
Commission. As used in this Guathe net worth of
Guarantor which shall be determined based on (x)the fair market value of the assets of the
Guarantor, [[528,976,634,1033][12][,I,][Times New Roman]]less [[617,976,708,1033][12][,,][Times New Roman]](y) [[688,976,1501,1033][12][,,][Times New Roman]]all liabilities of the Guarantor
(as deter [[1467,976,2299,1033][12][,,][Times New Roman]]mined in accordance with GAAP), and
LiquidAssets
cash, marketable securities and other cash equivalents.
(b)City may access the most recently filed financial statements
of Guarantor at www.SEC.gov(ticker symbol: LEN) to assure that the Minimum Liquidity
Standards are met and that none of the events or actions described in Section 2.2.5 of the DDA
Guarantor
Illiquidity Event
thirty (30) calendar days
following the notice from City of a Guarantor Illiquidity Event, Guarantor shall supplement its Net
Worth and LiquidAssets to meet the Minimum Liquidity Standards or Developer shall be required
to provide the City with additional security satisfactory to the City by (A) providing the City with
a Guaranty in the form and substance of the Guaranty, or otherwise acceptable to the City in its
sole discretion, from a replacement or supplemental guarantor or guarantors acceptable to the City
in its sole discretion, or (B) furnishing the City with another form of security such as a pledge of
specified assets, letter of credit or completion bond, in each case in a manner meeting the
requirements of the City in its reasonable discretion.Failure of Guarantor to provide such
substitute security within the required time frame shall constitute a default by Guarantor under this
Guaranty.
(c)Withinthirty (30) calendar days following the date of
commencement of the Guarantor Illiquidity Event as specified in Section 6.2(b)above,unless
Developer has provided alternative security as permitted by the DDA to the satisfaction of the
City, Guarantorshall, for the benefit of the Citysupplement the security furnished by it in a manner
meeting the requirements of Section 6.2(a)aboveor otherwise as agreed by the City in its
reasonablediscretion. Failure of Guarantorto provide substitution of security to the City within
such one thirty (30)calendar day period shall be a default under this Guaranty.
Section 7.City Assigns; Disclosureof Information.
of an assignment of the Guaranteed Obligations, or any part thereof, the rights and benefits
hereunder, to the extent applicable to the Guaranteed Obligations so assigned, may be transferred
with such Guaranteed Obligations. Guarantor waives notice of any transfer or assignment of the
Guaranteed Obligations or any part thereof.
Section 8.Binding Effect; Successor and Assigns; Joint and Several.
This Guaranty is binding no
and assigns. All obligations of Guarantor hereunder are joint and several obligations.
Section 9.Governing Law.
The validity, enforcement, and interpretation of this Guaranty, shall for all purposes be
governed by and construed in accordance with the laws of the State of California (without regard
to its conflicts of law principles) and applicable United States federal law, and is intended to be
performed in accordance with, and only to the extent permitted by, such laws. Any disputes arising
in connection with this Guaranty or in connection with or under any instrument, agreement or
document provided for or contemplated by this Guaranty, including in connection with the
execution of this Guaranty, the Guaranteed Obligations or any other matter arising under, related
to or in connection with this Guaranty (including a determination of any and all issues in such
dispute, whether of fact or of law) shall be tried and litigated exclusively in the Superior Court of
the County of Orange, State of California, in any other appropriate court of that county, or in the
United States District Court for the Central District of California. This choice of venue is intended
to be mandatory and not permissive in nature, thereby precluding the possibility of litigation with
respect to or arising out of this Guaranty in any jurisdiction other than that specified in this
Section9. Guarantorhereby waivesany right that it may have to assert forum non conveniens or
similar doctrine or to object to venue with respect to any proceeding brought in accordance with
this Section9, and stipulates that the State and federal courts located in the County of Orange,
State of California, shall have in personam jurisdiction and venue overitfor the purpose of
litigating any dispute, controversy or proceeding arising out of this Guaranty. Guarantorhereby
authorizesand agrees to accept service of process sufficient for personal jurisdiction in any action
against it as contemplated by thisSection9by means of registered or certified mail, return receipt
requested, postage prepaid, to its address for the giving of notices as set forth in this Guaranty, or
in the manner set forth below for notices. Any final judgment rendered against Guarantorin any
action or proceeding shall be conclusive as to the subject of such final judgment and may be
enforced in other jurisdictions in any manner provided by law.
Section 10.Invalidity of Certain Provisions.
If any provision of this Guaranty or the applicationthereof to any Person or circumstance
shall, for any reason and to any extent, be declared to be invalid or unenforceable, neither the
remaining provisions of this Guaranty nor the application of such provision to any other Person or
circumstance shall beaffected thereby, and the remaining provisions of this Guaranty, or the
applicability of such provision to other Persons or circumstances, as applicable, shall remain in
effect and be enforceable to the maximum extent permitted by applicable law.
Section 11.Costs and Expenses of Enforcement.
Guarantor agrees to pay to City withinfifteen (15) calendar days after writtendemand all
Guaranty, including court costs, costs of
fees, whether or not suit is filed or other proceedings are initiated hereon. All such costs and
expenses incurred by City shall constitute a portion of the Guaranteed Obligations hereunder, shall
be subject to the provisions hereof with respect to the Guaranteed Obligations and shall be payable
by the Guarantor within fifteen (15) calendar days after writtendemand by City. In the event of
any suit or proceeding to adjudicate or resolve any disputein connection with this Guaranty, the
e
regardless of which party is the Prevailing Party,
litigation counsel at the time the fees were incurred, but,in no event more than $200 per hourand
costs, court costs and all other litigation expenses (including reasonable expert witness fees, costs
of depositions and other discovery, travel expenses, exhibit preparation, and courier, postage,
communication and document copying expenses).
Section 12.No Usury.
It is not the intention of City or the Guarantor to obligate the Guarantor to pay interest in
excess of that lawfully permitted to be paid by the Guarantorunder applicable law. Should it be
determined that any portion of the Guaranteed Obligations or any other amount payable by the
Guarantor under this Guaranty constitutes interest in excess of the maximum amount of interest
that the Guarantor, in its capacity as guarantor, may lawfully be required to pay under applicable
law, the obligation of the Guarantor to pay such interest shall automatically be limited to the
payment thereof in the maximum amount so permitted under applicable law. The provisions of
this Section shall override and control all other provisions of this Guaranty and of any other
agreement between the Guarantor and City.
Section 13.Representations, Warranties, and Covenants of the Guarantor.
Guarantor hereby represents, warrants, and covenants that: (a)the Guarantor has a
financial interest in Developer and will derive a material and substantial benefit, directly or
indirectly, from the developing the Project and from the making of this Guaranty by the Guarantor;
(b)this Guaranty is duly authorizedand valid, and is binding upon and enforceable against the
Guarantor subject to the effect of bankruptcy, insolvency, reorganization, moratorium or similar
principles of equity and applicable law; (c)the Guarantor is not, and the execution, delivery and
performance by the Guarantor of this Guaranty will not cause the Guarantor to be, in violation of
or in default with respect to any law or in default (or at risk of acceleration of indebtedness) under
any agreement or restriction by which the Guarantor is bound or affected; (d)the Guarantor is duly
organized, validly existing, and in good standing under the laws of the state of its organization and
has full power and authority to enter into and perform this Guaranty; (e)except as may have been
previously disclosed to City in writing, there is no litigation pending or, to the knowledge of the
Guarantor, threatened by or before any tribunal against or affecting the Guarantorthat would have
; (f)all
financial statements and information heretofore furnished to City by the Guarantor do, and all
financial statements and information hereafter furnished to City by the Guarantor will, fully and
accurately present the condition (financial or otherwise) of Guarantor as of their dates and the
e
most recent financial statements of the Guarantor heretofore furnished to City, no material adverse
change has occurred in the financial condition of the Guarantor, nor, except as heretofore disclosed
in writing to City, has the Guarantor incurred any material liability, direct or indirect, fixed or
hereunder; (g)after giving effect to this Guaranty, the Guarantor is solvent, is not engaged or about
to engage in business or a transaction for which the property of the Guarantor is an unreasonably
small capital, and does not intend to incur or believe that it will incur debts that will be beyond its
ability to pay as such debts mature; (h)the Guarantor has read andfully understands the provisions
[[1227,645,1277,702][12][B,I,][Times New Roman]]{ [[1244,645,2103,702][12][B,I,][Times New Roman]]approve the Transfer to Developer and to [[2072,645,2129,702][12][B,I,][Times New Roman]]}
covenants are a material inducement to City to convey
the Property and enter into the Other Agreements and shall survive the execution hereof and any
bankruptcy, foreclosure, transfer of security or other event affecting Developer, any Person, or any
security for all or any part of the Guaranteed Obligations.
Section 14.Notices.
All notices, requests, consents, demands and other communications required or which any
party desires to give hereunder or under the DDA shall be in writing and, unless otherwise
specifically provided in the DDA, shall be deemed sufficiently given or furnished if delivered by
personal delivery, by nationally recognized overnight courier service, or by certified United States
mail, postage prepaid, addressed to the party to whom directed at the addresses specified in this
Guaranty or in the DDA (unless changed by similar notice in writing given by the particular party
whose address is to be changed) or by facsimile. Any such notice or communication shall be
deemed to have been given either at the time of personal delivery or, in the case of courier or mail,
as of the date of first attempted delivery at the address and in the manner provided herein, or, in
the case of facsimile, upon receipt; provided that service of a notice required by any applicable
statute shall be considered complete when the requirements of that statute are met.
Notwithstanding the foregoing, no notice of change of address shall be effective except upon actual
receipt. This Section shall not be construed in any way to affect or impair any waiver of notice or
demand provided in this Guaranty, the DDA or the Other Agreements or to require giving of notice
or demand to or upon any Person in any situation or for any reason.
Section 15.Cumulative Rights.
All of the rights and remedies of City under this Guaranty, the DDA and the Other
Agreements are cumulative of each other and of any and all other rights at law or in equity, and
the exercise by City of any one or more of such rights and remedies shall not preclude the
simultaneous or later exercise by City of any or all such other rights and remedies. No single or
partial exercise of any right or remedy shall exhaust it or preclude any other or further exercise
thereof, and every right and remedy may be exercised at any time and from time to time. No
failure by City to exercise, or delay in exercising, any right or remedy shall operate as a waiver of
such right or remedy or as a waiver of any Material Default. No notice to or demand on Guarantor
in any case shall of itself entitle Guarantor to any other or further notice or demand in similar or
other circumstances. No provision of this Guaranty or any right or remedy of City with respect
hereto, or any default or breach, can be waived, nor can this Guaranty or Guarantor be released or
discharged in any way or to any extent, except specifically in each case by a writingintended for
that purpose (and which refers specifically to this Guaranty) executed and delivered by City to the
Guarantor.
Section 16.Subrogation.
Guarantor shallnothave any right of subrogation under the DDA or the Other Agreements or any
right to participate in any security for the Guaranteed Obligations or any right to reimbursement,
exoneration, contribution, indemnification or any similar rights, until the Guaranteed Obligations
have been fully and finally discharged in accordance with Section2.3above, and Guarantor hereby
waives all of such rights. Guarantor notshall exercise any rights that it may acquire by way of
subrogation under this Guaranty, by virtue of any payment made hereunder or otherwise, until all
the Guaranteed Obligations have been paidor performed in full. If any amount is paid to Guarantor
on account of such subrogation rights before the Guaranteed Obligations have been paid or
performed in full, the amount will be held in trust for the benefit of City and will immediately be
paid toCity to be credited and applied upon the Guaranteed Obligations, whether matured or
unmatured, in such order as City, in its sole and absolute discretion, determines. Until the
Guaranteed Obligations are paid or performed in full, any indebtedness of Developer to Guarantor
is hereby subordinated to all obligations and liabilities of Developer to City arising out of or related
to the DDA.
Section 17.Time of Essence.
hereunder.
Section 18.Bankruptcy of Developer.
The obligations of Guarantor under this Guaranty will continue to be effective, or be
automatically reinstated: (a)if the performance or the payment, in whole or in part, of any of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned by City (as a
preference, fraudulent conveyance or otherwise) upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of City, the Guarantor, Developer or any other Person, or (b) upon or
as a resultof the appointment of a custodian, receiver, trustee or other officer with similar powers
with respect to Developer, either Guarantor, or any other Person, or any substantial part of its
property, or otherwise, all as though such payments had not been made. IfaDefault has occurred
and continues or exists under or with respect to the DDA or if any default occurs under this
Guaranty or with respect to any of the Guaranteed Obligations at such time as City is prevented
by reason of the pendency against the Guarantor,Developeror any other Person of a case or
proceeding under a bankruptcy or insolvency law, Guarantoragrees that this Guaranty and the
Guaranteed Obligations will be deemed to have been declared in default or accelerated with the
same effect as if this Guaranty and the Guaranteed Obligations had been declared in default and
accelerated in accordance withtheir respective terms. Guarantor will immediately perform or pay
the Guaranteed Obligations as required under this Guaranty without further notice or demand.
Section 19.Entire Agreement; Counterparts; Construction.
This Guaranty embodies the entire agreement between City and the Guarantorwith
respect to the guaranty by the Guarantor of the Guaranteed Obligations. This Guaranty
supersedes all prior agreements and understandings, if any, with respect to the guaranty by the
Guarantor of the Guaranteed Obligations. This Guaranty shall be effective upon execution by
the Guarantor and delivery to City. This Guaranty may not be modified, amended or superseded
except in a writing signed by City and the Guarantor referencing this Guaranty by its date and
specifically identifying the portions hereof that are to be modified, amended or superseded. This
Guaranty has been executed in a number of identical counterparts, each of which shall be
deemed an original for all purposes and all of which constitute, collectively, one agreement. As
[[[943,753,1786,810][12][,I,][Times New Roman]]Signatures appear on the following page [[1758,753,1808,810][12][,,][Times New Roman]]]
IN WITNESS WHEREOF, the Guarantor has duly executed this Guaranty as of the date
first written above.
Address of Guarantor:By: LENNAR CORPORATION,
a Delaware corporation
_____________________
By:_________________________
Name:____________________
Authorized Signatory
ATTACHMENT 28
FORM OF GUARANTY OPINION
__________, 201__
300 Centennial Way
Tustin, CA 92780
Re:Guaranty Agreement made by Guarantor (as defined herein) in favor of City dated
Ladies and Gentlemen:
We have acted as special counsel to Lennar Corporation, a Delaware Corporation
advise you that we are not
general counsel to the Guarantor, but rather we represent the Guarantor as requested on specific
matters.
In connection with this opinion we have examined and relied upon copies of each of the
following:
1.Articles of Incorporation dated as of _____________, 20as amended by
Amendments dated as of [insert dates of all amendments] filed with the Secretary
of State of Delawareand certified by the Secretary of State of Delaware.
2.Certified copy of Certificate of Bylaws dated______________, 20__________,
certified by the Secretary of Guarantor as amended by amendments dated as of
[[599,2030,1292,2087][12][B,I,][Times New Roman]][insert dates of all amendments]
Certificate of Good Standing of Guarantorissued
by the Secretary of State of the State of Delawaredated __________, 201_.
3.Certificate of Good Standing Foreign Corporation of Guarantor issued by the
Secretary of State of the State of California dated ___________, 20__and
[[599,2360,1957,2417][12][B,I,][Times New Roman]][Describe corporate proceedings authorizing the Guaranty
4.]dated as of
__________, 201_.
5.The Guaranty.
All assumptions stated herein have been made based upon appropriate certifications of
parties purporting to have knowledge of the facts and we are not aware of any inconsistent
information.
We have assumed the genuineness of all signatures except for those signatures on the
Guaranty of the persons signingthe Guaranty, on behalf of the Guarantor, and the signature of
Guarantor on the Guaranty. We also have assumed the authenticity and completeness of all items
submitted to us as originals, the conformity with originals of all items submitted to us as copies,
and the accuracy and completeness of all records made available to us by Guarantor. We have
assumed that any certificate or other document on which we have relied that was given or dated
earlier than the date of this letter continued to remain accurate insofar as relevant to our opinions
from such earlier date through, and including the date of this letter. In making our examination of
the Guaranty, we have assumed: that City was in legal existence and had the power to accept the
Guaranty, and that any person acting on behalf of the City was duly authorized to act in that
capacity; the conduct of the City in connection with the transaction has complied with any
requirement of good faith, fair dealing and conscionability; and the City and any agent acting for
the City in connection with the transaction have acted in good faith and without notice of any
defense against the enforcement of any rights created by, or adverse claimto any property or
security interest transferred or created as part of, the transaction.We have assumed the legal
capacity of natural persons. We have assumed that there are no agreements or understandings
among the parties, written or oral, and there is no usage of trade or course of prior dealing among
the parties that would, in either case, define, supplement, or qualify the terms of the Guaranty.We
have assumed that there has not been any mutual mistake of fact or misunderstanding, fraud, duress
or undue influence.
Based upon and subject to theforegoing and any further qualifications set forth below, we
are of the opinion that:
(a)
a corporation validly existing and in good standing under the laws of the
State of Delaware. Guarantor has full corporate power and authority to
enter into and perform its obligations under the Guaranty. Guarantor has
duly registered to transact intrastate business as a foreign corporation in,
and is in good standing in the State of California.
(b)The execution, delivery and performance of the Guaranty and the Guarantor
Certificate have been duly authorized by all requisite corporate action of
Guarantor, and the Guaranty and the Guarantor Certificate have been duly
executed and delivered by Guarantor.
(c)The Guaranty constitutes the valid and binding obligation of Guarantor and
is enforceable against Guarantor in accordance with its terms.
(d)
performance and observance of and compliance with the provisions of the
articles of incorporation or bylaws.
The opinions expressed in paragraph (c) above is subject to each of the following
further qualifications:
(i)Our opinion is subject to the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the
rights of creditors generally.
(ii)The enforceability of the Guaranty is subject to limitations
imposed by general principles of equity, as well as legal or
statutory principles affecting the enforcement of contractual
rights generally, (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iii)We advise you of California statutory provisions and case
law to the effect that a guarantor may be discharged, in whole
or in part, if the beneficiary of the guaranty alters the obligation
of the principal, fails to inform the guarantor of material
information pertinent to the principal or any collateral, elects
remedies that may impaireither the subrogation or
reimbursement rights of the guarantor against the principal or
the value of any collateral, fails to accord the guarantor the
provisions afforded a debtor under Division 9 of the California
UCC or otherwise takes any action that materially prejudices
the guarantor, unless in any such case, the guarantor has
effectively waived such rights or the consequences of such
action or has consented to such action. See, e.g., California
Civil Code Section 2799 through Section 2855; California
Uniform Commercial Code § 9-602,[[1841,2076,2300,2133][12][,I,][Times New Roman]]Sumitomo Bank of
[[994,2133,1455,2190][12][,I,][Times New Roman]]California v. Iwasaki [[1419,2133,2299,2190][12][,,][Times New Roman]], 70 Cal. 2d 81, 73 Cal. Rptr. 564 (1968);
[[994,2191,1493,2248][12][,I,][Times New Roman]]Union Bank v. Gradsky [[1466,2191,1542,2248][12][,,][Times New Roman]], 2 [[1517,2191,2299,2248][12][,,][Times New Roman]]65 Cal. App.
2d 40, 71 Cal. Rptr. 64
(1968). While California Civil Code Section 2856, and case
discharged, such as those contained in the Guaranty, are
generally enforceable under California law, we express no
opinion regarding the effectiveness of the waivers in the
Guaranty.
(iv)Certain provisions of the Guaranty may not be enforceable;
nevertheless, subject to the limitations expressed elsewhere in
this opinion letter, upon the material breachby Guarantor of its
obligations thereunder, such unenforceability will not preclude
the City from recovering from Guarantor, in accordance with
applicable law, such damages as were proximately caused by
such breach.
(v)Without limiting any of the qualifications contained
elsewhere in this opinion letter, we express no opinion as to the
validity or enforceability of any provisionsof the Guaranty that:
containa covenant not to compete; (C) provide for penalties,
liquidated damages, acceleration of future amounts due (other
than principal) without appropriate discount to present value,
late charges, prepayment charges, or increased interest rates
upon default; (D) provide for the confession of judgment or
provide for one party to act as attorney-in-fact for another party;
(E) provide for indemnification in excess of the indemnification
rights provided for by statute; (F) provide for arbitration, choice
of law, choice of forum, choice of venue, or severability; or (G)
contain a waiver of (1) broadly or vaguely stated rights, (2) the
benefits of statutory, regulatory or constitutional rights, unless
and to the extent the statute, regulation or constitution explicitly
allows waiver, (3)unknown future defenses, or (4) rights to
compliance with the provisions of the Guaranty does not
conflict with or result in
incorporation or bylaws.
Our examination of law relevant to the matters herein is limited to the laws of the State of
California and Delaware and Federallaw. We have not made an independent review of the laws
of anystate other than Californiaand Delaware.Our opinion as to matters governed by Delaware
law is limited to the due authorization of the Guaranty and does not extend to the enforceability of
the Guaranty under Delaware law. We express no opinion as to the matters governed by the laws
of any other state or jurisdiction.
You also should be aware of the following provisions of California law, to which the
opinions expressed in this opinion letter are subject to:
A.Section 726 of the California Code of Civil Proc
by a mortgage or deed of trust on real property must comply with the
requirements of such Section, which requirements relate to and specify the
procedures for the sale of encumbered property, the application of sale
proceeds, the rendition in certain cases of a deficiency judgment and other
related matters. We advise you that in such action or proceeding, whether
judicial or extrajudicial, the debtor m
aspect of Section726 and require that the creditor exhaust all its security
before a personal judgment may be obtained against the debtor for a
deficiency.We also advise you that failure to comply with the provisions
of Section726 (including, without limitation, an attempt to exercise a right
of setoff with respect to any funds of Borrower which may be deposited
with you from time to time and with respect to which you do not hold a
valid security interest) may result in the loss of your rights with respect to
the real property collateral and, under certain circumstances, the loss of your
right to a deficiency judgment.Section 580b of the Civil Procedure Code
provides that no deficiency judgment shall be rendered upon a purchase-
money obligation in favor of the vendor arising from the sale of real
property where such purchase-money obligation is secured by a lien on the
real property purchased from the vendor, or in favor of a lender where the
proceeds of the loan are used to purchase a one-to-four family dwelling
occupied entirely or in part by the borrower and where such loan is secured
by a lien on such dwelling.
B.Section580d of the Civil Procedure Code provides that no deficiency
judgment shall be rendered upon a note secured by a deed of trust or
mortgage on real property after a sale of the real property pursuant to a
power of sale contained in such deed of trust or mortgage.
This opinion letter is furnished by us as counsel for Guarantor solely in connection with
the Guaranty and may be relied upon only by you and by transferees of the Guaranty and solely in
connection with the Guaranty. No attorney-client relationship has existed or exists between our
firm and you regarding this matter. Our opinion letter may notbe used, quoted from, referred to
or relied upon in whole or in part by you or by any other person for any other purpose, nor may
copies be delivered to any other person, without our prior written consent in each instance. We
shall have no obligation to revise or reissue this opinion letter with respect to any change in law
or any event, fact, circumstance or transaction which occurs after the date hereof. In addition, we
express no opinion with respect to any issue arising out of or related to (i)the identity or status of
any transferee of the Guaranty or (ii)any subsequent transaction.
We bring to your attention the fact that our legal opinions are an expression of professional
judgment and are not a guarantee of a result. This letter is limited to the matters expressly set forth
herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
This opinion letter and the opinions it contains shall be interpreted in accordance with the
Legal Opinion Principles issued bythe Committee on Legal Opinions of the American Bar
[[1412,2758,1782,2815][12][,I,][Times New Roman]]Business Lawyer [[1764,2758,2138,2815][12][,,][Times New Roman]]831 (May 1998).
Very truly yours,
ATTACHMENT 29
TRANSFEREE CERTIFICATE
This Certificate is being delivered pursuant to that certain Tustin Legacy Disposition and
DDA
Development Agreement forParcel 6B dated as of _______________, 2018
Developer
between_______________, a _________
City
defined herein shall have the meanings specified in the DDA.
The undersigned, on behalf of[Insert name of Tranferee entity], a
1
Transferee
___________does hereby certify to the City, as of the date hereof:
1.Transfereeisthe Assignee under an Assignment and Assumption Agreement dated
__________, between [insert Assignor name] a ________ and Transferee.Transferee is [Insert
full description of the relationship between Assignor and Transferee.] The undersigned officer of
Transfereehas the authority from Transfereeto execute and deliver this Certificate on behalf of
Transfereeas evidenced by the [Corporate resolution and /or other information]attached as Exhibit
A.
2.Attached hereto as Exhibit Bis a true and correct copy of the[Articles of
Incorporation/Certificate of Formation]ofTransfereeand any and all amendments thereto in effect
on the date hereof.
3.Attached hereto as Exhibit Cis a true and correct copy of the [Bylaws/Operating
Agreement] ofTransfereeand any and all amendments thereto in effect on the date hereof.
4.Attached hereto as Exhibit Dis a true and correct copy of the certificate of good
standing for Transfereefrom the [Delaware]Secretary of State, dated not earlier than thirty (30)
days prior to the date of this Certificate.
[[599,2030,650,2087][12][B,I,][Times New Roman]][ [[617,2030,667,2087][12][B,I,][Times New Roman]]{ [[633,2030,928,2087][12][B,I,][Times New Roman]]If applicable [[900,2030,966,2087][12][B,I,][Times
New Roman]]:}
5.[[953,2031,1003,2088][12][,I,][Times New Roman]]a [[978,2031,1385,2088][12][,I,][Times New Roman]]ttached hereto as [[1352,2031,1548,2088][12][,I,][Times New Roman]]Exhibit [[1515,2031,1567,2088]
[12][,I,][Times New Roman]]E [[1567,2031,2300,2088][12][,I,][Times New Roman]]is a true and correct copy of the
[[300,2088,1488,2145][12][,I,][Times New Roman]]County of Orange Fictitious Business Name Statement of [[1450,2088,1694,2145][12][,I,][Times New Roman]]Transferee [[1679,2088,2300,2145][12][,I,][Tim
es New Roman]]and any and all amendments
[[996,2145,1051,2202][12][B,I,][Times New Roman]]]
[[300,2146,1038,2203][12][,I,][Times New Roman]]thereto in effect on the date hereof.
[{[[635,2253,1853,2310][12][B,I,][Times New Roman]]If Transferee is Lennar Corporation, the New Entity, or [[1819,2253,2300,2310][12][B,I,][Times New Roman]]a Developer Affiliate
6.
[[300,2310,727,2367][12][B,I,][Times New Roman]]of the New entity [[690,2310,1221,2367][12][B,I,][Times New Roman]]following the Merger:}
City may access the most recently filed financial
statements of Lennar Corporationat www.SEC.gov(ticker symbol: LEN) to review thefinancial
][{[[769,2425,2300,2482][12][B,I,][Times New Roman]]If Transferee is not Lennar Corporation, the New Entity, or a Developer
status of Transferee.
[[297,2482,497,2539][12][B,I,][Times New Roman]]Affiliate [[497,2482,750,2539][12][B,I,][Times New Roman]]of Lennar [[738,2482,1244,2539][12][B,I,][Times New Roman]]following the Merger
[[1214,2482,1264,2539][12][B,I,][Times New Roman]]: [[1223,2482,1280,2539][12][B,I,][Times New Roman]]}
Transfereehas provided City with financial
statements dated no more than 90 days prior to the date hereof that were prepared in accordance
with GAAP. Since the date thereof, there have been no material adverse changes to the financial
[[300,2829,350,2869][8][,I,][Times New Roman]]1
[[328,2835,1808,2892][12][,I,][Times New Roman]]If Merger, replace Transferee with New Entity and update accordingly.
]
position of the Transferee.
7.Transferee has adequate liquid assets to fully fund the development of the Project
and to discharge all obligations under the DDA in accordancewith the terms of the DDA.
8.Transferee has nottaken any action looking toward its dissolution, no event,
whether voluntary or involuntary, has occurred that has caused the dissolution of Transferor and
there are no proceedings pending or contemplated for the merger, consolidation, conversion,
dissolution, liquidation or termination of Transferor.
9.Transabilitytofully fund the development of the Project and to discharge
all obligations under the DDA in accordance with its termsis notcontingent on third party
financing.
10.This Certificate is being furnished to the City solely to assist it in conducting its
investigation of financial resources in connection with
discharge its obligations in accordance with the terms of the DDA. Transfereeacknowledgesand
agreesthat the City intends to rely on the information in this Certificate and this Certificate may
be relied upon by the City for these purposes.
Without the written consent of the Transfereeno Person other than the City may rely on
this Certificate for any purpose.
In no event shall the individual executing this Certificate on behalf of the Transfereehave
any personal liability hereunder.
[[1092,1851,1591,1908][12][,I,][Times New Roman]]{signatures on next pag [[1566,1851,1639,1908][12][,I,][Times New Roman]]e}
Dated: ________________, 2018______________________________
a _____________________________
Transferee
By: _______________________________
Name:
Authorized Signatory
EXHIBIT
CORPORATE RESOLUION
[[1115,466,1468,523][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
ARTICLES OF INCORPORATION/CERTIFICATE OF FORMATION
[[1115,466,1468,523][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
BYLAWS/OPERATING AGREEMENT
[[1115,466,1468,523][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
CERTIFICATE OF GOOD STANDING FROM THE
[DELAWARE]SECRETARY OF STATE
[[1115,523,1468,580][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
FICTITIOUS NAME STATEMENT
[[1115,466,1468,523][12][B,I,][Times New Roman]]{to be attached}
ATTACHMENT 30
GUARANTORCERTIFICATE
This Certificate is being delivered pursuant to that certainTustin Legacy Disposition and
[[1858,587,1909,644][12][B,I,][Times New Roman]][ [[1876,587,2174,644][12][B,I,][Times New Roman]]{if amended: [[2134,587,2191,644][12][B,I,][Times New Roman]]}
Development Agreement For Disposition Parcel 6B dated as of _____, 201_[[2173,588,2300,645][12][,I,][Times New Roman]](the
[[328,645,641,702][12][B,I,][Times New Roman]]Original DDA
[[1595,646,1671,703][12][,I,][Times New Roman]]__ [[1663,646,2300,703][12][,I,][Times New Roman]]to Tustin Legacy Disposition
[[300,703,1255,760][12][,I,][Times New Roman]]and Development Agreement for Disposition [[1218,703,1443,760][12][,I,][Times New Roman]]Parcel 6B [[1439,703,1713,760][12][,I,][Times
New Roman]]dated as of [[1677,703,2031,760][12][,I,][Times New Roman]]______, 201__( [[1997,703,2300,760][12][,I,][Times New Roman]]as amended,
[[402,760,525,817][12][B,I,][Times New Roman]]DDA [[600,760,977,817][12][B,I,][Times New Roman]]{if not amended: [[937,760,994,817][12][B,I,][Times New Roman]]} [[1106,760,1229,817][12][B,I,][Times
New Roman]]DDA [[1252,760,1307,817][12][B,I,][Times New Roman]]]
[[989,761,1055,818][12][,I,][Times New Roman]](t [[1019,761,1094,818][12][,I,][Times New Roman]]he [[1274,761,2300,818][12][,,][Times New Roman]], by and between the City of Tustin,
a municipal
City
[[556,875,1272,932][12][B,I,][Times New Roman]][{if no Assignment or Merger: [[1232,875,1289,932][12][B,I,][Times New Roman]]} [[1327,875,1566,932][12][B,I,][Times New Roman]]Developer
[[1603,875,1657,932][12][B,I,][Times New Roman]]/ [[1648,875,1698,932][12][B,I,][Times New Roman]]{ [[1665,875,2266,932][12][B,I,][Times New Roman]]if Assignment or Merger: [[2226,875,2283,932][12][
B,I,][Times New Roman]]}
corporation
[[533,932,772,989][12][B,I,][Times New Roman]]Developer [[1343,932,1394,989][12][B,I,][Times New Roman]][ [[1361,932,1411,989][12][B,I,][Times New Roman]]{ [[1378,932,1812,989][12][B,I,][Times
New Roman]]add if applicable:} [[2010,932,2065,989][12][B,I,][Times New Roman]]]
[[876,933,1377,990][12][,I,][Times New Roman]]ch has, by assignment [[1779,933,2045,990][12][,I,][Times New Roman]]and merger [[2032,933,2300,990][12][,I,][Times New Roman]], including
[[293,991,599,1048][12][,I,][Times New Roman]]pursuant to [[581,991,1774,1048][12][,I,][Times New Roman]]that certain Assignment Agreement by and between [[1755,991,2300,1048][12][,I,][Times
New Roman]]_________________, a
Developer[[1689,1047,2230,1104][12][B,I,][Times New Roman]]Assignment Agreement
[[299,1048,750,1105][12][,I,][Times New Roman]]_________________ [[1088,1048,1188,1105][12][,I,][Times New Roman]]and [[1198,1048,1644,1105][12][,I,][Times New Roman]]Original Developer
[[1753,1105,1808,1162][12][B,I,][Times New Roman]]]
[[300,1106,806,1163][12][,I,][Times New Roman]]assigned all of its right, [[780,1106,1796,1163][12][,I,][Times New Roman]]title and interest in and to the DDA to Developer. [[1798,1106,2300,1163][12]
[,,][Times New Roman]]Capitalized terms used
herein that are not defined herein shall have the meanings specified in the DDA.
The undersigned,on behalf of [[1070,1278,1671,1335][12][,I,][Times New Roman]]______________________ [[1665,1278,2287,1335][12][,,][Times New Roman]]______________________a,
______________________ (Guarantordoes hereby certify as follows to the City, as of the date
hereof:
[[801,1507,852,1564][12][B,I,][Times New Roman]], [[836,1507,886,1564][12][B,I,][Times New Roman]]a [[881,1507,1158,1564][12][B,I,][Times New Roman]][insert state [[1151,1507,1442,1564][12][B,I,][Tim
es New Roman]]of formation [[1415,1507,1470,1564][12][B,I,][Times New Roman]]] [[1591,1507,1642,1564][12][B,I,][Times New Roman]][ [[1609,1507,1717,1564][12][B,I,][Times New Roman]]sole
[[1685,1507,1740,1564][12][B,I,][Times New Roman]]] [[1726,1507,2041,1564][12][B,I,][Times New Roman]][shareholder/ [[2005,1507,2202,1564][12][B,I,][Times New Roman]]member [[2166,1507,2221,1564][12
][B,I,][Times New Roman]]]
1.Guarantoris the of
[[532,1565,1409,1622][12][B,I,][Times New Roman]][REVISED TO ADDRESS STRUCTURE [[1403,1565,1805,1622][12][B,I,][Times New Roman]]AS APPLICABLE [[1783,1565,1838,1622][12][B,I,][Times
New Roman]]]
Developer.
[[977,1680,1028,1737][12][B,I,][Times New Roman]][ [[994,1680,1696,1737][12][B,I,][Times New Roman]]Secretary/ Managing Member/ [[1660,1680,2210,1737][12][B,I,][Times New Roman]]Chief
Financial Officer [[2208,1680,2283,1737][12][B,I,][Times New Roman]]of
2.The undersigned
[[300,1737,550,1794][12][B,I,][Times New Roman]]Guarantor [[515,1737,570,1794][12][B,I,][Times New Roman]]]
has the authority from Guarantorto execute and deliver this Certificateon behalf of
[[958,1795,2035,1852][12][B,I,][Times New Roman]][Corporate resolution and /or other information]
Guarantoras evidenced bytheattached as
Exhibit A.
[[2006,1967,2057,2024][12][B,I,][Times New Roman]][ [[2021,1967,2300,2024][12][B,I,][Times New Roman]]Articles of
3.Attached hereto as Exhibit Bis a true and correct copy of the
[[299,2025,1561,2082][12][B,I,][Times New Roman]]Incorporation of the Company/Certificate of Formation [[1535,2025,1590,2082][12][B,I,][Times New Roman]]]
ofGuarantorand any and all
amendments thereto in effect on the date hereof.
[[1863,2197,1914,2254][12][B,I,][Times New Roman]][ [[1880,2197,2300,2254][12][B,I,][Times New Roman]]Bylaws/Operating
4.Attached hereto as Exhibit Cis a true and correct copy of the
[[297,2255,561,2312][12][B,I,][Times New Roman]]Agreement
[[520,2256,574,2313][12][,I,][Times New Roman]]] [[546,2256,637,2313][12][,,][Times New Roman]]of [[599,2256,834,2313][12][,,][Times New Roman]]Guarantor [[814,2256,2134,2313][12][,,][Times
New Roman]]and any and all amendments thereto in effect on the date hereof.
5.Attached hereto as Exhibit Dare true and correct copies of the Certificate of good
[[878,2427,929,2484][12][B,I,][Times New Roman]][ [[896,2427,1845,2484][12][B,I,][Times New Roman]]the ____________ Secretary of State and the [[1812,2427,1867,2484][12][B,I,][Times
New Roman]]]
standing for Guarantorfrom California Secretary
of State and each attached certificate of good standing is dated not earlier than thirty (30) days
prior to the date of this Certificate.
[[599,2657,650,2714][12][B,I,][Times New Roman]][ [[617,2657,984,2714][12][B,I,][Times New Roman]]{If applicable:}
[[450,2658,525,2715][12][,I,][Times New Roman]]6. [[953,2658,1003,2715][12][,I,][Times New Roman]]a [[978,2658,1385,2715][12][,I,][Times New Roman]]ttached hereto as [[1352,2658,1548,2715][12][,I,][
Times New Roman]]Exhibit [[1515,2658,1567,2715][12][,I,][Times New Roman]]E [[1567,2658,2300,2715][12][,I,][Times New Roman]]is a true and correct copy of the
[[300,2716,694,2773][12][,I,][Times New Roman]]Certificate of Stat [[658,2716,1296,2773][12][,I,][Times New Roman]]us of Foreign Corporation of [[1260,2716,1504,2773][12][,I,][Times
New Roman]]Guarantor [[1478,2716,2277,2773][12][,I,][Times New Roman]]from the California Secretary of State
[[1583,2772,1638,2829][12][B,I,][Times New Roman]]]
[[300,2773,1625,2830][12][,I,][Times New Roman]]and any and all amendments thereto in effect on the date hereof.
[[599,299,984,356][12][B,I,][Times New Roman]][{If applicable:}
7.[[953,300,1003,357][12][,I,][Times New Roman]]a [[978,300,1385,357][12][,I,][Times New Roman]]ttached hereto as [[1352,300,1548,357][12][,I,][Times New Roman]]Exhibit [[1515,300,1567,357][12][,I,
][Times New Roman]]F [[1567,300,2300,357][12][,I,][Times New Roman]]is a true and correct copy of the
[[300,358,894,415][12][,I,][Times New Roman]]County of Orange Fictitious [[874,358,1489,415][12][,I,][Times New Roman]]Business Name Statement of [[1451,358,1695,415][12][,I,][Times
New Roman]]Guarantor [[1677,358,2300,415][12][,I,][Times New Roman]]and any and all amendments
[[996,415,1051,472][12][B,I,][Times New Roman]]]
[[300,416,1038,473][12][,I,][Times New Roman]]thereto in effect on the date hereof.
[[599,530,1600,587][12][B,I,][Times New Roman]][{Add if with respect to Lennar Corporation:}
8.[[1846,531,2300,588][12][,I,][Times New Roman]]s last filing with the
[[1086,587,1141,644][12][B,I,][Times New Roman]]]
[[300,588,1128,645][12][,I,][Times New Roman]]Securities and Exchange Commission, [[1128,588,2300,645][12][,,][Times New Roman]]Guarantor has (without the requirement of third party
financing) Liquid Assets and Net Worth (as both terms are defined in the DDA) sufficient to allow
Guarantor to meet its obligations under the Guaranty and to meet the Minimum Liquidity
Standards under the DDA and the Guaranty of Two Hundred Fifty Million Dollars ($250,000,000)
[[667,817,1455,874][12][B,I,][Times New Roman]][{with respect to Lennar Corporation [[1433,817,1499,874][12][B,I,][Times New Roman]]:}
of Net Worth and [[1479,818,2300,875][12][,I,][Times New Roman]]Fifty Million Dollars ($50,000,000) of
[[2228,875,2283,932][12][B,I,][Times New Roman]]]
[[298,876,834,933][12][,I,][Times New Roman]]Liquid Assets at the Clos [[804,876,1318,933][12][,I,][Times New Roman]]e of Escrow and Twenty [[1291,876,1341,933][12][,I,][Times New Roman]]-
[[1306,876,2264,933][12][,I,][Times New Roman]]Five Million Dollars ($25,000,000) thereafter
[[299,932,749,989][12][B,I,][Times New Roman]][{in all other cases:} [[1948,932,2003,989][12][B,I,][Times New Roman]]]
[[730,933,910,990][12][,I,][Times New Roman]]Seventy [[882,933,932,990][12][,I,][Times New Roman]]- [[896,933,1990,990][12][,I,][Times New Roman]]Five Million Dollars ($75,000,000) of
Liquid Assets.
This Certificate is being furnished to the City solely to assist it in conducting its
investigation ofDeveloperand Guarantorfinancial resourcesand its investigation of
GuarantorGuarantorobligation and the Guaranty.
Guarantoracknowledges and agrees that the City intends to rely on the information in this
Certificate and this Certificate may be relied upon by the City for these purposes.
Without the written consent of Guarantor,no Person other than the City may rely on this
Certificate for any purpose.
In no event shall the individual executing this Certificate on behalf of Guarantorhave any
personal liability hereunder.
[[1025,1823,1554,1880][12][,I,][Times New Roman]][Signature page follows]
Dated: __________________
Guarantor.a_______________
By:
Name:
Title:
EXHIBIT
EVIDENCE OF AUTHORITY AND
AUTHORIZATION OF SIGNATORIES
[[1115,523,1468,580][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
ARTICLES OF INCORPORATION/CERTIFICATE OF FORMATION
[[1115,466,1468,523][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
BYLAWS/OPERATING AGREEMENT
[[1115,466,1468,523][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
CERTIFICATE OF GOOD STANDING FROM THE
[DELAWARE]SECRETARY OF STATEAND
CALIFORNIA SECRETARY OF STATE
[[1115,581,1468,638][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
CERTIFICATES OF STATUS OF FOREIGN CORPORATION
[[1115,494,1468,551][12][B,I,][Times New Roman]]{to be attached}
EXHIBIT
FICTITIOUS NAME STATEMENT
[[1115,552,1468,609][12][B,I,][Times New Roman]]{to be attached}
ATTACHMENT32
EQUITYFUNDINGCERTIFICATE
[[513,473,691,530][12][B,I,][Times New Roman]]{Revise [[676,473,751,530][12][B,I,][Times New Roman]]as [[733,473,972,530][12][B,I,][Times New Roman]]applicable [[957,473,1021,530][12][B,I,][Times
New Roman]]if [[1000,473,1222,530][12][B,I,][Times New Roman]]certifying [[1204,473,1343,530][12][B,I,][Times New Roman]]party [[1328,473,1392,530][12][B,I,][Times New Roman]]is [[1374,473,1513,530]
[12][B,I,][Times New Roman]]other [[1495,473,1611,530][12][B,I,][Times New Roman]]than [[1600,473,1785,530][12][B,I,][Times New Roman]]Lennar [[1767,473,2069,530][12][B,I,][Times New
Roman]]Corporation}
ThisCertificateisbeingdeliveredpursuanttoSection4.6ofthatcertainTustinLegacy
DDA),
DispositionandDevelopmentAgreementforParcel6B,datedasof___________,2018(
(Developer)
byandbetweenCalAtlanticGroup.Inc.aDelawareCorporationandtheCityof
City).
Tustin,amunicipalcorporationoftheStateofCalifornia(theCapitalizedtermsused
hereinthatarenotdefinedhereinshallhavethemeaningsspecifiedintheDDA.
TheundersigneddoesherebycertifytotheCity,inthenameandonbehalfofLennar
(Lennar)
Corporation,aDelawareCorporationthat,asofthedatehereof:
[[950,1132,1323,1189][12][B,I,][Times New Roman]][Secretary/Chief [[1303,1132,1542,1189][12][B,I,][Times New Roman]]Financial [[1520,1132,1696,1189][12][B,I,][Times New Roman]]Officer
[[1679,1132,1754,1189][12][B,I,][Times New Roman]]of [[1731,1132,1936,1189][12][B,I,][Times New Roman]]Lennar]
1.Theundersignedhastheauthority
fromLennartoexecuteanddeliverthisCertificateonbehalfofLennaras
[[971,1247,1225,1304][12][B,I,][Times New Roman]][Corporate [[1215,1247,1446,1304][12][B,I,][Times New Roman]]resolution [[1442,1247,1545,1304][12][B,I,][Times New Roman]]and [[1534,1247,1627,1304][1
2][B,I,][Times New Roman]]/or [[1615,1247,1754,1304][12][B,I,][Times New Roman]]other [[1742,1247,2039,1304][12][B,I,][Times New Roman]]information]
evidencedbytheattachedas
ExhibitA.
[[2006,1412,2212,1469][12][B,I,][Times New Roman]][Articles [[2208,1412,2283,1469][12][B,I,][Times New Roman]]of
2.AttachedheretoasExhibitBisatrueandcorrectcopyofthe
[[599,1470,911,1527][12][B,I,][Times New Roman]]Incorporation [[904,1470,979,1527][12][B,I,][Times New Roman]]of [[960,1470,1052,1527][12][B,I,][Times New Roman]]the [[1039,1470,1495,1527][12][B,I,][
Times New Roman]]Company/Certificate [[1481,1470,1556,1527][12][B,I,][Times New Roman]]of [[1537,1470,1782,1527][12][B,I,][Times New Roman]]Formation [[1756,1470,1811,1527][12][B,I,][Times
New Roman]]]
ofLennarandanyand
allamendmentstheretoineffectonthedatehereof.
3.AttachedheretoasExhibitCisatrueandcorrectcopyoftheBylawsofLennarand
anyandallamendmentstheretoineffectonthedatehereof.
4.AttachedheretoasExhibitDaretrueandcorrectcopiesoftheCertificateofgood
standingforLennarfromtheDelawareSecretaryofStateandtheCalifornia
SecretaryofState,andeachattachedcertificateofgoodstandingisdatednotearlier
thanthirty(30)dayspriortothedateofthisCertificate.
5.AttachedheretoasExhibitEisatrueandcorrectcopyoftheCertificateofStatus
ofForeignCorporationofLennarfromtheCaliforniaSecretaryofStateandany
andallamendmentstheretoineffectonthedatehereof,datednotlessthanthirty
(30)dayspriortothedateofthisCertificate.
[[599,2360,704,2417][12][B,I,][Times New Roman]][{If [[689,2360,966,2417][12][B,I,][Times New Roman]]applicable:}
6.[[953,2361,1003,2418][12][,I,][Times New Roman]]a [[978,2361,1150,2418][12][,I,][Times New Roman]]ttached [[1144,2361,1296,2418][12][,I,][Times New Roman]]hereto [[1291,2361,1366,2418][12][,I,][Tim
es New Roman]]as [[1352,2361,1534,2418][12][,I,][Times New Roman]]Exhibit [[1515,2361,1567,2418][12][,I,][Times New Roman]]F [[1567,2361,1631,2418][12][,I,][Times New Roman]]is [[1619,2361,1669,2418]
[12][,I,][Times New Roman]]a [[1663,2361,1771,2418][12][,I,][Times New Roman]]true [[1762,2361,1862,2418][12][,I,][Times New Roman]]and [[1856,2361,2036,2418][12][,I,][Times New Roman]]correct
[[2019,2361,2141,2418][12][,I,][Times New Roman]]copy [[2132,2361,2207,2418][12][,I,][Times New Roman]]of [[2190,2361,2279,2418][12][,I,][Times New Roman]]the
[[600,2418,772,2475][12][,I,][Times New Roman]]County [[759,2418,834,2475][12][,I,][Times New Roman]]of [[813,2418,994,2475][12][,I,][Times New Roman]]Orange [[978,2418,1202,2475][12][,I,][Times
New Roman]]Fictitious [[1184,2418,1392,2475][12][,I,][Times New Roman]]Business [[1374,2418,1521,2475][12][,I,][Times New Roman]]Name [[1507,2418,1694,2475][12][,I,][Times New Roman]]Stateme
[[1665,2418,1740,2475][12][,I,][Times New Roman]]nt [[1719,2418,1794,2475][12][,I,][Times New Roman]]of [[1770,2418,1947,2475][12][,I,][Times New Roman]]Lennar [[1931,2418,2031,2475][12][,I,][Times
New Roman]]and [[2021,2418,2121,2475][12][,I,][Times New Roman]]any [[2108,2418,2208,2475][12][,I,][Times New Roman]]and [[2197,2418,2286,2475][12][,I,][Times New Roman]]all
[[1559,2475,1614,2532][12][B,I,][Times New Roman]]]
[[600,2476,880,2533][12][,I,][Times New Roman]]amendments [[862,2476,1028,2533][12][,I,][Times New Roman]]thereto [[1016,2476,1080,2533][12][,I,][Times New Roman]]in [[1068,2476,1212,2533][12][,I,][T
imes New Roman]]effect [[1189,2476,1264,2533][12][,I,][Times New Roman]]on [[1251,2476,1340,2533][12][,I,][Times New Roman]]the [[1325,2476,1439,2533][12][,I,][Times New Roman]]date
[[1423,2476,1587,2533][12][,I,][Times New Roman]]hereof [[1551,2476,1601,2533][12][,I,][Times New Roman]].
7.LennarandDeveloperhaveenteredintothatcertainAgreementandPlanofMerger
MergerAgreement
datedOctober29,2017(the).Followingcompletionofthe
MergerasdefinedintheDDA,Lennarwill,directlyorindirectly,bethesoleowner
oftheNewEntityasdefinedintheDDA.
8.PursuanttotheMergerAgreement,andinaccordancewithDelawarelaw,uponthe
consummationoftheMerger,theNewEntitywillbeliableforalltheobligations
DDA
ofDeveloperincludingtheobligationsofDeveloperundertheDDA(the
Obligations
).
9.AsoflastfilingwiththeSecuritiesandExchangeCommission,Lennar
has(withouttherequirementofthirdpartyfinancing)LiquidityandNetWorth(as
bothtermsaredefinedintheDDA)sufficienttoallowLennartodischargeitsDDA
ObligationsandtomeettheLiquidityCovenantsandMinimumLiquidityStandards
underSection4.7.1(a)oftheDDA.
10.Lennarherebyagrees,upontheconsummationoftheMerger,toprovidefundsto
NewEntitysufficienttoallowNewEntitytodischargetheDDAObligations,
withouttheuseofanyProject-leveldebtfinancing.
ThisCertificateisbeingfurnishedtotheCitysolelytoassistitinconductingits
investigationofDeveloper'sfinancialresourcesinconnectionwiththeexecutionoftheDDAand
itsinvestigationofLennar'sfinancialresourcesinconnectionwithNewabilityto
dischargetheDDAObligations.LennaracknowledgesandagreesthattheCityintendstorelyon
theinformationinthisCertificateforthesepurposesinconnectionwithitsexecutionoftheDDA.
ThisCertificatemayberelieduponbytheCityforthesepurposes.Withoutthewrittenconsentof
Lennar:(i)noPersonotherthantheCitymayrelyonthisCertificateforanypurpose;(ii)copies
ofthisCertificatemaynotbefurnishedtoanyoneforpurposesofencouragingsuchreliance;
(iii)theCityshallmaintainthisCertificateasaconfidentialdocumentpursuanttotheprovisions
ofthePublicRecordsActoftheStateofCalifornia;and(iv)theCityshallnotdisseminatethis
CertificateandshalltakeallreasonablestepstomaintaintheconfidentialityofthisCertificateand
thecontentshereof,includingmaintenanceofthisCertificateatanon-publiclocation,unless
otherwiserequiredbylaw.TheCity'sstaff,agents,negotiatorsandconsultantsmayreviewthis
Certificateasnecessaryaslongassuchpartiesagreetomaintaintheconfidentialityofthis
Certificate.
InnoeventshalltheindividualexecutingthisCertificateonbehalfofLennarhaveany
personalliabilityhereunder.
[[974,2322,1216,2379][12][,I,][Times New Roman]][Signature [[1194,2322,1326,2379][12][,I,][Times New Roman]]page [[1301,2322,1503,2379][12][,I,][Times New Roman]]follows]
[[680,317,922,374][12][,I,][Times New Roman]][Signature [[900,317,1032,374][12][,I,][Times New Roman]]page [[1016,317,1080,374][12][,I,][Times New Roman]]to [[1068,317,1309,374][12][,I,][Times
New Roman]]Certificate [[1294,317,1369,374][12][,I,][Times New Roman]]of [[1345,317,1490,374][12][,I,][Times New Roman]]Chief [[1464,317,1696,374][12][,I,][Times New Roman]]Financial
[[1673,317,1863,374][12][,I,][Times New Roman]]Officer]
Dated:_______________________,201_
LENNARCORPORATION,
aDelawareCorporation
By:____________________________
ATTACHMENT 33A
REQUEST FOR PARTIAL RECONVEYANCE
Date:______________, ______
To First American Title Insurance Company, Trustee:
THE UNDERSIGNED BENEFICIARY is the beneficiary under that certain Deed of Trust
with Assignmentof Rents dated _____________, 2018, executed by _____________________, a
______________________, Trustor, and recorded on ___________, 20___, as Instrument
No.______________ of Official Record, in the Office of the County Recorder of Orange,
[[578,1075,899,1132][12][B,I,][Times New Roman]]Deed of Trust
California, ().
You areherebyrequested and authorized to reconvey to the person(s) entitled thereto the
right, title or interest now held by you thereunder in and to that portion of the real property
described in said Deed of Trust, as follows:In the City of Tustin, County of Orange, State of
California, being all of Lots 1 through 5, inclusive, Lot 8, and Lots A through B, inclusive, of Tract
No. 18125 as per map filed in Book _____, Pages __ through ___, inclusive, of Miscellaneous
Maps, in the office of the County Recorder of said county.
ThisRequest for Partial Reconveyance shall be held by youuntil such time as Final Tract
Map No. 18125 isapproved by the City of Tustinandthe County of Orange County,
California,recording of the Final Map is authorized by each such entity and you have caused the
Final Map to be recorded in the official records of Orange County, California. Immediately
following the recordingof suchFinal Map, you shallrecord thePartial Reconveyancerequested
herein, without further instruction fromthe undersigned beneficiary or trustor.
The making of this partial reconveyance shall be endorsed by you upon said Deed of Trust,
a copy of which is herewith presented to you, for that purpose.
Executed as of the date first written above.
BENEFICIARY:
The City of Tustin
By:
Name:
Title:
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only theidentity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me,________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public
ATTACHMENT 33B
PARTIAL RECONVEYANCE
RECORDING REQUESTED BY
First American Title Insurance Company
WHEN RECORDED MAIL DOCUMENT
TO:
CalAtlantic Group, Inc.
15360 Barranca Parkway
Irvine, CA 92618
Attn: Michael Battaglia
SPACE ABOVE THIS LINE FOR
[[449,1328,911,1385][12][B,I,][Times New Roman]][TO BE UPDATED]
A.P.N.
PARTIAL RECONVEYANCE
First American Title Insurance Company, Trustee under that Deed of Trust With
Assignment of Rents dated ______________, 2018, executed by _____________________, a
______________________, Trustor, and recorded on ___________, 20___, as Instrument
No.______________ of Official Record, in the Office of the County Recorder of Orange,
California, having been requested in writing by The City of Tustin, the beneficiary and holder of
the obligations secured by said Deed of Trust, to reconvey a portion of the estate granted to Trustee
under said Deed of Trust, DOES HEREBY RECONVEY TO THE PERSON OR PERSONS
LEGALLY ENTITLED THERETO, WITHOUT WARRANTY, ALL THE ESTATE, TITLE,
AND INTEREST acquired by Trustee under said Deed of Trust, in and to the portion of the
property described as follows:
In the City of Tustin, County of Orange, State of California, being all of Lots 1through 5,
inclusive, Lot 8, and Lots A through B, inclusive, of Tract No. 18125as per map filed in
Book _____, Pages __ through ___, inclusive, of Miscellaneous Maps, in the office of the
County Recorder of said county.
Reserved Property
But excepting from this reconveyance that certain re
City of Tustin, County of Orange, State of California, being all of Lots 6 and 7 of Tract No. 18125
as per map filed in Book _____, Pages __ through ___, inclusive, of Miscellaneous Maps, in the
office of the County Recorder of said county.
The Reserved Property, comprising a portion of the real property described in said Deed of Trust,
shall continue to be held by said Trustee under the terms thereof. As provided in said Deed of
Trust, this Partial Reconveyanceis made without affecting the personal liability of any person or
the corporate liability of any corporation for the payment of the indebtedness mentioned as secured
thereby or the unpaid portion thereof. Furthermore, except with respect to the reconveyance of real
property in accordance with this Partial Reconveyance, the rights and obligations of the parties to
said Deed of Trust shall remain unmodified.
Dated:
First American Title Insurance Company
By:
Authorized Signer
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing thiscertificate verifies only the identity of the
individualwho signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of _________________________________
On _________________ before me, ________________________________________________,
Date(Insert Name and Title of the Officer)
personally appeared ___________________________________________________________
Name(s) of Signer(s)
____________________________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal and/or Stamp above______________________________________
Signature of Notary Public