HomeMy WebLinkAboutORD 1489 (2018)ORDINANCE NO. 1489
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, APPROVING DEVELOPMENT AGREEMENT (DA) 2017-
001 BETWEEN THE CITY OF TUSTIN AND THE CALATLANTIC
INC. TO FACILITATE THE DEVELOPMENT OF 218 HOMES
WITHIN NEIGHBORHOOD G OF THE MCAS TUSTIN SPECIFIC
PLAN.
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. That proper application has been submitted by CalAtlantic Inc. for the development
of 218 residential units, a community facility and other neighborhood amenities on
an approximately 20 -acre site currently owned by the City of Tustin within Planning
Area 15 of the Tustin Legacy Specific plan.
B. That Tustin Legacy Specific Plan Section 4.2.7 requires all private development at
Tustin Legacy to obtain a Development Agreement in accordance with Section
65864 et seq. of the Government Code and Sections 9600 to 9619 of the Tustin
City Code. In compliance with Tustin City Code Section 9611, the Tustin Planning
Commission must make a recommendation on the proposed Development
Agreement to the City Council.
C. That a public hearing was duly called, noticed, and held on said application on
November 28, 2017, by the Planning Commission. The Planning Commission
adopted Resolution No. 4356 recommending that the City Council adopt
Ordinance No. 1489.
D. That a public hearing was duly called, noticed, and held on said application on
December 19, 2017, by the City Council and the item was continued to January
16, 2018.
E. On January 16, 2001, the City of Tustin certified the Program Final Environmental
Impact Statement/Environmental Impact Report (FEIS/EIR) for the reuse and
disposal of MCAS Tustin. On December 6, 2004, the City Council adopted
Resolution No. 04-76 approving a Supplement to the FEIS/EIR for the extension of
Tustin Ranch Road between Walnut Avenue and the future alignment of Valencia
North Loop Road. On April 3, 2006, the City Council adopted Resolution No. 06-
43 approving an Addendum to the FEIS/EIR. And, on May, 13, 2013, the City
Council adopted Resolution No. 13-32 approving a second Addendum to the
FEIS/EIR. On July 5, 2017, the City Council adopted Resolution No. 17-23 approving
a second Supplement to the FEIS/EIR. The FEIS/EIR along with its Addenda and
Supplement is a program EIR under the California Environmental Quality Act
Ordinance No. 1489
Page 1 of 4
(CEQA). The FEIS/EIR, Addenda and Supplement considered the potential
environmental impacts associated with development on the former Marine Corps
Air Station, Tustin.
An Environmental Checklist has been prepared and concluded that these actions
do not result in any new significant environmental impacts or a substantial increase
in the severity of any previously identified significant impacts in the FEIS/EIR.
Moreover, no new information of substantial importance has surfaced since
certification of the FEIS/EIR.
F. That the Development Agreement can be supported by the following findings:
1. The project is consistent with the objectives, policies, general land uses and
programs specified in the General Plan and the Tustin Legacy Specific Plan
in that residential uses are permitted uses within Planning Area 15 of
Neighborhood G.
2. The project is compatible with the uses authorized in the district in which the
real property is located (Planning Areas 15) in that similar and compatible
uses exist and are envisioned within the close proximity of the project site
3. The project is in conformity with the public necessity, public convenience,
general welfare, and good land use practices in that the project would
provide three (3) product types within the 218 new housing units for new and
existing Tustin residents thereby providing additional options for housing to
the City's housing stock.
4. The project will not be detrimental to the health, safety, and general welfare.
The project will comply with the Tustin Legacy Specific Plan, Tustin City
Code, and other regulations to ensure that the project will not be detrimental
in any way.
5. The project will not adversely affect the orderly development of property in
that the proposed project is orderly, well designed, and equipped with
necessary infrastructure and amenities to support existing and future
residents and businesses in Tustin Legacy.
6. The project will have a positive fiscal impact on the City in that the provisions
of the proposed Development Agreement and conditions of approval will
ensure that the project will have a positive fiscal impact on the City.
SECTION 2. The City Council hereby approves Development Agreement 2017-001
attached hereto as Exhibit A and subject to final approval of the City Attorney.
Ordinance No. 1489
Page 2 of 4
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or portion
of this ordinance is for any reason held to be invalid or unconstitutional by
the decision of any court of competent jurisdiction, such decision shall not
affect the validity of the remaining portions of this ordinance. The City
Council of the City of Tustin hereby declares that it would have adopted this
ordinance and each section, subsection, sentence, clause, phrase, or
portion thereof irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, or portions be declared invalid
or unconstitutional.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin
on this 6th day of February, 2018.
i'
RE CCA "BEC IF G Z,
Mayor Pro Tem
/ 6%11 VI/
ERICA N. RABE,
City Clerk
APPROVED AS TOFORM:
DAVID E. KENDIG,City Attorney'
Ordinance No. 1489
Page 3 of 4
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
ORDINANCE NO. 1489
ERICA N. RABE, City Clerk and ex -officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council
of the City of Tustin is 5; that the above and foregoing Ordinance No. 1489 was duly and
regularly introduced at a regular meeting of the Tustin City Council, held on the 16th day
of January, 2018, and was given its second reading, passed, and adopted at a regular
meeting of the City Council held on the 6th day of February, 2018, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
ERICA N. BABE,
City Clerk
(0)
Ordinance No. 1489
Page 4 of 4
EXHIBIT A to
Ordinance No. 1489
Development Agreement 2017-001
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT BE RECORDED
AND BE EXEMPT FROM PAYMENT OF
A RECORDING FEE PER
GOVERNMENT CODE 6103 AND 27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attn: City Clerk
Space Above This Line Reserved for Recorder's Use Only
TUSTIN LEGACY DEVELOPMENT AGREEMENT
THIS TUSTIN LEGACY DEVELOPMENT AGREEMENT ("Agreement") is
entered into effective as of the Effective Date (as defined below) by and between the CITY OF
TUSTIN, a California municipal corporation ("City"), and CALATLANTIC GROUP, INC., a
Delaware Corporation ("Developer"). City and Developer are collectively referred to herein as
the "Parties" and individually as a "Party".
RECITALS
The following recitals are an integral part of this Agreement and are binding on the
Parties. Capitalized terms used in these Recitals shall have the meanings ascribed to such terms
as set forth in Section 1.1.
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of the
State adopted the "Development Agreement Statute," Sections 65864, et seq., of the Government
Code. The Development Agreement Statute authorizes City to enter into an agreement with any
person having a legal or equitable interest in real property and to provide for development of
such property and to establish certain development rights therein. In addition, MCAS Tustin
Specific Plan Section 4.2.7 states: "prior to issuance of any permits or approval of any
entitlements within the Specific Plan area, all private development shall first obtain a
Development Agreement in accordance with Section 65864 et seq. of the Government Code and
Sections 9600 to 9619 of the Tustin City Code." Pursuant to the authorization set forth in the
Development Agreement Statute, City has enacted procedures for entering into development
agreements which are contained in Tustin City Code Sections 9600 to 9619.
B. City and Developer intend, concurrently with the execution of this Agreement, to
enter into the Tustin Legacy Disposition and Development Agreement for Disposition Parcel 6B,
as the same may be amended from time to time (the "DDA") pursuant to which City shall agree
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to sell, and Developer shall agree to buy and develop, certain real property, all as more
specifically set forth in the DDA.
C. Pursuant to the DDA, Developer has an equitable and/or legal interest in the
Property in that it has the contractual right to purchase the Property from City for development of
the Project.
D. Pursuant to Government Code Section 65864, the Legislature has found and
determined that:
"(a) The lack of certainty in the approval of development projects can result in
a waste of resources, escalate the cost of housing and other development to the
consumer, and discourage investment in and commitment to comprehensive
planning which would make maximum efficient utilization of resources at the
least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval of
the project, the applicant may proceed with the project in accordance with
existing policies, rules and regulations, and subject to conditions of approval, will
strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic costs of development.
(c) The lack of public facilities, including, but not limited to, streets,
sewerage, transportation, drinking water, school, and utility facilities, is a serious
impediment to the development of new housing. Whenever possible, applicants
and. local governments may include provisions in agreements whereby applicants
are reimbursed over time for financing public facilities."
In accordance with the legislative findings set forth in Government Code Section 65864,
City wishes to attain certain public objectives that will be furthered by this Agreement. This
Agreement will provide for the orderly implementation of the General Plan of the City ("General
Plan"), and the phased development and completion of the Project in accordance with the DDA
and the Specific Plan. This Agreement will further the comprehensive planning objective
contained in the City's General Plan, to promote an economically balanced community with
complimentary and buffered land uses to include commercial, professional, multi -family and
single-family development.
E. The DDA, the Specific Plan and the development under the DDA and the Specific
Plan require a substantial early investment of money and planning and design effort by
Developer. Without the protection provided by this Agreement, uncertainty that the Project may
be completed in its entirety could result in a waste of public resources, escalate the cost of public
improvements, and discourage Developer's provision of the Public Benefits or payment for those
certain public improvements specified in the DDA and the Specific Plan. Developer's
participation in the implementation of the DDA and the Specific Plan will result in a number of
public benefits. These benefits require the cooperation and participation of City and Developer
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and could not be secured without mutual cooperation in and commitment to the comprehensive
planning effort that has resulted in the DDA and the Specific Plan.
F. Developer wishes to avoid certain development risks and uncertainties that would,
in the absence of this Agreement, deter and discourage Developer from making a commitment to
implement the DDA and the Specific Plan. These are as follows:
1. It is generally the law in California that, absent extraordinary
circumstances or'the approval of a vesting subdivision map, an owner of the land does not obtain
a vested right to improve land until the issuance of a building permit for the improvements and
commencement of substantial construction pursuant to that permit. The result is a disincentive
for landowners to invest monies in the early completion of major infrastructure and other public
improvements as part of any project or in early comprehensive planning and design studies.
2. Development under the DDA and the Specific Plan requires a substantial
early investment of money and planning and design effort by Developer. Uncertainty about
City's land use policies, rules and regulations could result in a waste of private resources,
escalate the cost of certain public improvements, and escalate costs of proposed housing and
other uses.
G. The following assurances are of vital concern to Developer to offset or remove
the disincentives and uncertainties set forth in Recital F:
1. Assurance to Developer that, in return for Developer's commitment to the
development of the Property that is contained in the DDA, any approved entitlements, and the
Specific Plan, City will in turn remain committed to the Existing Entitlement Approvals;
2. Assurances to Developer that as Developer becomes obligated for the
costs of designing and constructing the public and private improvements included in the DDA
and the Specific Plan, and to make dedications, Developer will become entitled to rely upon the
Vested Rights in the development of the Property; and
3. Assurances to Developer that in City's administration of the Existing
Entitlement Approvals, Developer will be allowed, consistent with the DDA and the Specific
Plan, to develop the housing types and intensities identified in the DDA and the Specific Plan.
These assurances provide for cooperation and participation of City and Developer and could not
be secured without mutual cooperation in and commitment to the comprehensive planning effort
that has resulted in the DDA and the Specific Plan.
H. The Development Agreement Statute authorizes local agencies to enter into
binding development agreements with persons having legal or equitable interests in real property
for the development of such property. City wishes to enter into a development agreement with
Developer to secure the Public Benefits and additional consideration described in this
Agreement, and Developer wishes to enter into a development agreement with City to avoid the
development risks and uncertainties and to obtain the assurances described above.
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I. This Agreement is intended to be, and shall be construed as, a development
agreement within the meaning of the Development Agreement Statute. This Agreement is
intended to augment and further the purposes and intent of the Parties in the implementation of
the DDA and the Specific Plan. This Agreement, as a device for the implementation of the
Existing Entitlement Approvals and the Specific Plan, will eliminate uncertainty in planning for
and secure the orderly development of the Project, ensure a desirable and functional community
environment, provide effective and efficient development of public facilities, infrastructure, and
services appropriate for the development of the Project, assure attainment of the maximum
effective utilization of resources within the City, and provide other significant public benefits to
City and its residents by otherwise achieving the goals and purposes of the Development
Agreement Statute. In exchange for these benefits to City, Developer desires to receive the
assurance that it may proceed with development of the Project in accordance with the terms and
conditions of this Agreement and the Applicable Rules, all as more particularly set forth herein.
J. City has determined that this Agreement and the Project are consistent with the
Marine Corps Air Station -Tustin Reuse Plan, the General Plan and the Specific Plan and that this
Agreement complies with the findings established by Tustin City Code Section 9611 in that the
Agreement:
1. Is consistent with the objectives, policies, general land uses and programs
specified in the General Plan and the Specific Plan.
2. Is compatible with the uses authorized in the district in which the real
property is located (Specific Plan Neighborhood G, Planning Area 15.) Note: the proposed for -
sale residential project complies with the uses authorized by the Specific Plan.
3. Is in conformity with the public necessity, public convenience, general
welfare, and good land use practices. Note: the Project will enhance housing opportunities
within the City and support economic development and activity in the vicinity of the Project.
4. Will not be detrimental to the health, safety, and general welfare. Note:
compliance with the Specific Plan, Tustin City Code, and other regulations will ensure that the
Project will not be detrimental in any way.
5. Will not adversely affect the orderly development of property. Note: the
proposed Project is orderly and well designed.
6. Will have a positive fiscal impact on the City. Note: the provisions of the
DDA will ensure that the Project will have a positive fiscal impact on the City.
K. On , the Planning Commission held a public hearing on this
Agreement, made certain findings and determinations with respect thereto, and recommended to
the City Council of City that this Agreement be approved. On , the City
Council held a public hearing on this Agreement, considered the recommendations of the
Planning Commission, and adopted Ordinance No. approving this Agreement and
authorizing its execution.
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AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, which are incorporated
herein by this reference, and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1. Definitions. Any capitalized word or term used in this Agreement shall have the
definition or meaning ascribed to such word or term as provided in the DDA, unless the word or
term is expressly provided in this Section 1.1 of this Agreement or otherwise expressly defined
in this Agreement, in which event such word or term shall have the definition or meaning as
provided herein. All capitalized terms not specifically defined in the DDA or this Agreement
shall be interpreted by the Director of Community Development of the City. The following terms
when used in this Agreement shall be defined as follows:
1.1.1 "Action" is defined in Section 8.10.
1.1.2 "Administrative Amendment" is defined in Section 2.6.2.
1.1.3 "Agreement" is defined in the introductory paragraph.
1. 1.4 "Applicable Rules" means (a) the Existing Land Use Regulations of the
City; (b) the Future Rules that are not in conflict (as defined in Section 3.6.2) with the Vested
Rights; (c) the Future Rules made applicable to the Project and/or the Property pursuant to
Section 3.6.2 or 3.10; (d) the Existing Entitlement Approvals, and (e) the Subsequent Entitlement
Approvals to which the Project and/or the Property or development and use thereof are made
subject to pursuant to the terms of this Agreement.
1.1.5 "Applications" is defined in Section 3.11.2.
1.1.6 "Business Day(s)" means any day on which City Hall is open for business
and shall specifically exclude Saturday, Sunday or a legal holiday.
1.1.7 "Certificate" is defined in Section 4.4.
1.1.8 "Certificate of Compliance" means that certain Certificate of Compliance
to be issued by the City to Developer pursuant to the DDA only upon satisfaction of all
conditions precedent thereto set forth in the DDA.
1.1.9 "City" is defined in the introductory paragraph.
1.1.10 "City Manager" means Mr. Jeffrey Parker, or his successor in such
capacity, or other designee as identified in writing by the City Manager.
1.1.11 "City Processing Fees" means (a) all fees and charges imposed by the City
under the then -current regulations for processing applications and requests for permits,
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approvals, and other actions and monitoring compliance with any permits issued or approvals
granted, including Plan Check and Inspection Fees and all applicable processing and permit fees
to cover the reasonable cost to the City of (i) processing and reviewing applications and plans for
any Entitlement Approvals, site review and approval, administrative review, and similar fees
imposed to recover the City's costs associated with processing, reviewing, and inspecting Project
applications, plans and specifications; (ii) inspecting the work constructed or installed by or on
behalf of Developer, and (iii) monitoring compliance with any requirements applicable to
Development of the Project, and (b) all costs incurred by the City in the performance of
necessary studies and reports in connection with the foregoing and its obligations under this
Agreement.
1.1.12 "Condominium Plan" means the Condominium Plans creating the
individual units on the Condominium Plan approved by BRE and, with respect to conformity
with Approved Plans only, approved by the City, and Recorded against the Development Parcels
or any portion thereof.
1.1.13 "Costs" is defined in Section 8.10.
1.1.14 "Covenant" is defined in Section 3.1.4.
1.1.15 "Damages" is defined in Section 5.3.
1.1.16 "DDA" is defined in the Recital B.
1.1.17 "Decision" is defined in Section 8.10.
1.1.18 "Defaulting Party" is defined in Section 5.1.
1.1.19 "Developer" is defined in the introductory paragraph and includes any
Successors In Interest of Developer.
1. 1.20 "Development Agreement Statute" is defined in Recital A.
1.1.21 "Development Permits" means all ministerial permits, certificates and
approvals which may be required by City or other governmental authority for the development
and construction of the improvements for the Project, -in each case in accordance with this
Agreement, the DDA, the Applicable Rules and any required environmental mitigation,
including engineering permits, grading permits, foundation permits, construction permits and
building permits.
1. 1.22 "District" is defined in Section 3.1.1.
1.1.23 "Effective Date" means the date that is thirty (30) days after the date of
approval (second reading) by the City Council of the City's ordinance approving this Agreement.
1.1.24 "EIR" means the Final Environmental Impact Statement/Final
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Environmental Impact Report for the Disposal and Reuse of MCAS Tustin (Final EIS/EIR) and
Mitigation Monitoring and Reporting Program for the Final EIS/EIR adopted by the City on
January 16, 2001 as subsequently modified by Supplement to the Final EIR/EIS and Addenda to
the Final EIS/EIR approved by the City.
1.1.25 "End User" means any (a) Person owning a Home in fee for use as a
single-family residence; (b) homeowners' association with respect to Common Area conveyed to
such homeowners' association; (c) utility or governmental entity to which a portion of the
Property is transferred or easement granted in connection with and desirable for development of
the Property, and (d) lighting or landscaping district.
1.1.26 "Entitlement Approvals" means (a) all discretionary land use approvals
and entitlements including Specific Plan amendments (if any), tentative and final tract maps,
parcel maps and Design Review approvals as may be applicable for proposed specific uses in
connection with development of the Project on the Property and (b) all conditions of approval
legally required by City as a condition to subdivision of the Property, development of the
Property, and construction of the improvements in accordance with this Agreement. Entitlement
Approvals shall be comprised of the Existing Entitlement Approvals and any Subsequent
Entitlement Approvals approved by the City.
1.1.27 "Existing Entitlement Approvals" means all Entitlement Approvals
approved or issued prior to the Effective Date and including the following which are a matter of
public record on the Effective Date: (a) Development Agreement (DA) 2017-01; (b) Design
Review (DR) 2017-04, and (c) Tentative Tract Map (TTM) 18125.
1.1.28 "Existing Land Use Regulations" means the Land Use Regulations in
effect on the Effective Date, including the General Plan, the City Zoning Code, the Specific Plan,
and all other ordinances, resolutions, rules, and regulations of the City governing development
and use of the Property in the form and substance in effect as of the Effective Date.
Section 8.11.2.
1.1.29 "Final Date" is defined in Section 3.13.1.
1.1.30 "First Party" is defined in Section 8.11.3.
1.1.31 "Force Majeure Delay" is defined in Section 8.11.1 as limited by
1.1.32 "Future Rules" is defined in Section 3.6.2.
1.1.33 "General Plan" is defined in Recital D.
1.1.34 "Home" or "Homes" means each row townhome, motor court flat and
single-family detached home and related improvements that are to be developed on the Property
in accordance with the Existing Entitlements Approvals and as further defined on the
Condominium Plan to be Recorded for the Property.
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1.1.35 "Land Use Regulations" means all laws, statutes, ordinances, resolutions,
codes, orders, rules, regulations and official policies of City governing the development and use
of land, including the permitted uses of the Property, the density or intensity of use, subdivision
requirements, timing and phasing of development, the maximum height and size of proposed
buildings, and the provisions for reservation or dedication of land for public purposes.
1.1.36 "Lot A" is defined in Section 3.14.1.
1.1.37 "Non -Defaulting Party" is defined in Section 5.1.
1.1.38 "Party" and "Parties" are defined in the introductory paragraph.
1.1.39 "Pedestrian Bridge" is defined in Section 3.14.1.
1.1.40 "Phase" means each development and construction phase within the
Property as shown on the Phasing Map attached hereto as Exhibit "F."
1. 1.41 "Plan Check and Inspection Fees" means the portion of the City
Processing Fees incurred by the City with respect to its provision of Plan Check and Inspection
Services for the Project, which shall be billed to Developer by City and paid by Developer to
City in accordance with Section 3.13.1Lb) of this Agreement.
1.1.42 "Plan Check and Inspection Services" means the services performed by
City staff and its third -party inspectors, engineers and consultants, if any, to carry out and
complete plan check, perform inspections, and monitor Developer compliance with the
Applicable Rules, as needed for review and issuance of encroachment permits, excavation
permits, grading permits, mechanical, electrical and plumbing permits and building permits
requested by Developer in connection with the Project.
1.1.43 "Prevailing Party" is defined in Section 8.10.
1.1.44 "Project" means the development of the Property contemplated by the
Existing Entitlement Approvals as such Entitlement Approvals may be further defined, enhanced
or modified pursuant to the provisions of this Agreement.
1.1.45 "Project Fair Share Contribution" means the fair share of the Tustin
Legacy Backbone Infrastructure Program to be contributed by Developer with respect to the
Project as further described in the DDA and Section 3.13.3.
1.1.46 "Property" means the real property described on Exhibit "A" and shown
on Exhibit `B" to this Agreement.
1.1.47 "Public Benefits" means those public benefits to be provided by the
Developer and the Project as described in Section 3.1 of this Agreement that comprise
enforceable additional consideration to City for this Agreement.
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1.1.48 "Publicly Accessible Common Area" shall mean Lot A and a portion of
the Private Streets and Sidewalks to be constructed or installed by Developer on the Property as
generally depicted as "Publicly Accessible Common Area" on Exhibit "E", Schedule "2".
1.1.49 "Publicly Accessible Common Area Improvements" shall mean the
improvements constructed on the Publicly Accessible Common Area.
1.1.50 "Record", "Recordation","Recording" and "Recorded" shall mean to
record the specified instrument, or the current or past recording of the specified instrument, in
the official records of Orange County, California.
1.1.51 "Recordable" shall mean in a form suitable for Recording.
1.1.52 "Reservation of Authority" means the rights and authority excepted from
the assurances and rights provided to Developer under this Agreement and reserved to City under
Section 3.10.
1.1.53 "Second Party" is defined in Section 8.11.3.
1.1.54 "Specific Plan" means the City's MCAS Tustin Specific Plan/Reuse Plan,
as amended, and as the same maybe further amended from time to time.
1.1.55 "State" means the State of California.
1.1.56 "Subsequent Entitlement Approvals" means Entitlement Approvals, if
any, approved by City subsequent to the Effective Date in connection with development of the
Property.
1.1.57 "Successors In Interest" means each and every Person having a legal or
equitable interest in the whole of the Property, or any portion thereof.
1.1.58 "Tax B" is defined in Section 3.1.1(a).
1.1.59 "Tustin City Code" means the municipal code of the City of Tustin.
1.1.60 "Vested Right" means the rights granted to Developer pursuant to this
Agreement upon its acquisition of the Property to develop the Property in accordance with, and
subject to the terms and conditions of this Agreement, the Existing Entitlement Approvals and
any Subsequent Entitlement Approvals approved by City and made applicable to the Property
pursuant to the terms of this Agreement.
1.2. Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit "A" — Legal Description of the Property
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Exhibit `B" — Map showing Property and its location
Exhibit "C"-- Public Benefit Improvements
Exhibit "D" — Maximum Tax Burden Schedule
Exhibit `B" — Form of Public Access Covenant and Declaration of Easement
Exhibit "F" — Phasing Map
2. GENERAL PROVISIONS.
2.1. Binding Effect of Agreement. The Property is hereby made subject to this
Agreement. Development of the Property is hereby authorized and shall be carried out only in
accordance with the terms of this Agreement. This Agreement shall become null and void if the
associated DDA is not approved and executed.
2.2. Interests in Property. City and Developer agree that Developer's right to acquire
the Property pursuant to the DDA creates a sufficient legal and/or equitable interest in order to
enter into this Agreement. If Developer fails to acquire any portion of the Property, then this
Agreement shall automatically no longer be effective as to such portion of the Property
concurrently with the date upon which Developer's rights to acquire such portion of the Property
expire.
2.3. Term. The term of this Agreement shall commence on the Effective Date and
shall continue for a term of five (5) years unless this term is terminated, modified, or extended by
circumstances set forth in this Agreement or by mutual written consent of the Parties.
Notwithstanding the foregoing, the term of this Agreement shall be automatically extended
during the term of any Force Majeure Delay, provided that the maximum term of this Agreement
as extended by Force Majeure Delay shall be six (6) years.
2.4. Assignment.
2.4.1 Assignment and Notification. The rights, interests and. obligations
conveyed and provided herein to Developer benefit and are appurtenant to the Property.
Developer has the right to sell, assign and transfer any and all of its rights and interests and to
delegate any and all of its duties and obligations hereunder; provided, however, that such rights
and interests may not be transferred or assigned except in strict compliance with the provisions
of Article 2 of the DDA, which are incorporated herein by this reference as though fully set forth
in this Agreement, and the following conditions:
(a) Developer secures the written consent of City if required pursuant
to Article 2 of the DDA;
(b) Said rights and interests may be transferred or assigned only as an
incident of the transfer or assignment of the portion of the Property to which they relate,
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including any transfer or assignment pursuant to a foreclosure of a Mortgage or a deed in lieu of
a foreclosure;
(c) Prior to assignment or transfer, if required pursuant to this
Section 2.4 or Article 2 of the DDA, Developer shall notify City in writing of such assignment or
transfer, the portions of the Property to which the assignment or transfer will be appurtenant, and
the name and address (for purposes of notices hereunder) of the transferee or assignee, together
with the corresponding number of dwelling units and/or non-residential entitlements which are
proposed to be included within such transfer and Developer and the assignee or transferee shall
notify City whether the assignee or transferee will assume any of Developer's obligations under
this Agreement and which of Developer's obligations will be assumed; and
(d) The assignee or transferee shall have entered into an Assignment
and Assumption Agreement if required by the DDA.
Any attempt to assign or transfer any right or interest in this Agreement except in strict
compliance with this Section 2.4 shall be null and void and of no force and effect.
2.4.2 Subject to Terms of Agreement. Following an assignment or transfer of
any of the rights and interests of Developer set forth in this Agreement in accordance with
Section 2.4.1, the assignee's exercise, use, and enjoyment of the Property shall be subject to the
terms of this Agreement to the same extent as if the assignee or transferee were Developer.
2.4.3 Release of Developer Upon Transfer. Notwithstanding the assignment or
transfer of portions or all of the Property or rights or interests under this Agreement, any
transferor Developer shall continue to be obligated under this Agreement unless released or
partially released by City with respect to Developer's obligations and the other duties and
obligations of Developer under this Agreement, pursuant to this Section, which release or partial
release shall apply only with respect to obligations of Developer following the effective date of
the assignment and shall be provided by City upon the full satisfaction by Developer of the
following conditions:
(a) Developer is not then in default under this Agreement;
(b) City has consented to the assignment or transfer if required under
Section 2.4.1;
(c) The assignment or transfer is not a Transfer to an Affiliate or other
Transfer or Transfer of Control for which the DDA expressly provides that Developer shall not
be released from its obligations under the DDA;
(d) The assignment or transfer is an assignment of all Developer's
interest in the Property, the DDA and this Agreement;
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(e) An assignee or transferee has assumed all duties and obligations as
to which Developer is requesting to be released pursuant to an Assignment and Assumption
Agreement approved by City; and
(f) The assignee or transferee is financially able to assume the
obligations proposed for assignment and has demonstrated to the reasonable satisfaction of City
that adequate resources have been committed to the full performance of such obligations.
2.5. Property to Continue to be Subject to This Agreement. In the absence of specific
written agreement by City, pursuant to which City expressly releases the Developer under the
applicable provisions of the DDA or this Agreement, no Transfer shall constitute a release of
Developer from any of its obligations under this Agreement and the Developer shall retain such
obligations and remain jointly and severally liable for such obligations. City shall cooperate
with Developer, at no cost to City, in executing in Recordable form any document that City has
approved to confirm the termination of this Agreement as to any such portion of the Property.
Notwithstanding the foregoing, the burdens of this Agreement shall terminate as to: (a) any
Home conveyed to a Homebuyer, including any individual residential unit that is sold or leased
after issuance of a certificate of occupancy, (b) any Common Area conveyed to a homeowners'
association, (c) any portion of the Property conveyed or for which an easement is provided to a
utility or governmental entity desirable for development of the Property and/or (d) any portion of
the Property conveyed to any lighting or landscaping district and upon such conveyance or grant
of easement, as applicable the foregoing Homes and/or portions of the Property affected thereby
shall be released from and shall no longer be subject to this Agreement (without the execution or
Recording of any further document or the taking of any further action).
2.6. Amendment or Cancellation of Agreement.
2.6.1 Generally. This Agreement may be amended or cancelled in whole or in
part only in the manner provided for in Government Code Sections 65865.1 or 65868 and Tustin
City Code Section 9615. This provision shall not limit any remedy of City or Developer as
provided by this Agreement. City or Developer may propose an amendment to or cancellation,
in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual
consent of the Parties except as provided otherwise in this Agreement, in Government Code
Section 65865.1, or in the Tustin City Code.
2.6.2 Administrative Amendments. Any amendment to this Agreement which
does not relate to the Term of this Agreement, permitted uses of the Project, provisions for the
reservation or dedication of land or the conditions, terms, restrictions and requirements relating
to Subsequent Entitlement Approvals of City, revisions to Public Benefits (other than to the time
for performance of such Public Benefits) or monetary exactions of Developer, shall be
considered an "Administrative Amendment". The City Manager or assignee is authorized to
execute Administrative Amendments on behalf of City and no action by the Planning
Commission or the City Council (and no noticed public hearing) shall be required before the
Parties may enter into an Administrative Amendment. However, if in the judgment of the City
Manager it is determined that a proposal is not an Administrative Amendment or that the
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proposed Administrative Amendment should be considered by the approval bodies of the City,
the City's Planning Commission shall conduct a noticed public hearing to consider whether the
Administrative Amendment should be approved or denied, and shall make a recommendation to
the City Council on the matter. The City Council shall conduct a noticed public hearing to
consider the request and the Planning Commission's recommendation on the matter. At the
conclusion of the public hearing, the City Council may approve, deny, or conditionally approve
the amendment.
2.6.3 Consent to Amendments. In the case of amendments affecting portions of
the Property, only the consent of the owner of such portion of the Property shall be required so
long as the amendment does not diminish the rights appurtenant to or increase the burdens upon
any other portion of the Property. Any Future Rule applicable pursuant to this Agreement and
any amendment of City Land Use Regulations including to the General Plan, applicable Specific
Plan or City's zoning ordinance, shall not require amendment of this Agreement. Instead, any
such amendment shall be deemed to be incorporated into this Agreement at the time that such
amendment is approved by the appropriate City decision maker, so long as such amendment is
consistent with this Agreement.
2.6.4 Termination. This Agreement shall be deemed terminated and of no
further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in
Section 2.3;
(b) Entry of a final court judgment not subject to further appeal setting
aside, voiding or annulling the adoption of the City ordinance approving this Agreement;
(c) The adoption of a referendum measure overriding or repealing the
City ordinance approving this Agreement;
(d) Completion of the Project and the Public Benefits in accordance
with the terms of this Agreement, the DDA, the Entitlement Approvals and the Applicable Rules,
including issuance of all required occupancy permits and acceptance by City or applicable public
agency of all required public improvements and dedications, and City issuance of a DDA
Certificate of Compliance;
Article 5; or
(e) Due to termination by City in accordance with Section 4.3 or
(f) Upon mutual written agreement of City and Developer.
In addition, City shall have the right, but not the obligation, to terminate this Agreement
as to the portion of the Property reacquired by it pursuant to the Right of Purchase or the Right of
Reversion under the DDA. Termination of this Agreement shall not constitute termination of
any other Entitlement Approvals for the Property. Upon the termination of this Agreement, no
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Party shall have any further right or obligation hereunder except with respect to any obligation to
have been performed prior to such termination or with respect to any default in the performance
of the provisions of this Agreement which has occurred prior to such termination or with respect
to any obligations which are specifically set forth as surviving this Agreement.
2.7. Notices Demands and Communications between the Parties. All notices,
demands, consents, requests and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed conclusively to have been duly given
(a) when hand delivered to the other Party; (b) three (3) Business Days after such notice has been
sent by United States mail via certified mail, return receipt requested, postage prepaid, and
addressed to the other Party as set forth below; or (c) the next Business Day after such notice has
been deposited with a national overnight delivery service reasonably approved by the Parties
(Federal Express, United Parcel Service and U.S. Postal Service are deemed approved by the
Parties), postage prepaid, addressed to the Party to whom notice is being sent as set forth with
next Business -Day delivery guaranteed, provided that the sending Party receives a confirmation
of delivery from the delivery service provider. Unless otherwise. provided in writing, all notices
hereunder shall be addressed as follows:
If to City: City of Tustin
Tustin City Hall
300 Centennial Way
Tustin, CA 92780
Attention: City Manager
and Attention: Director of Community Development
With a copy to: City Attorney, City of Tustin
Woodruff Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
Attention: David E. Kendig, Esq.
If to Developer: CalAtlantic Group, Inc.
c/o Southern California Coastal Division President
15360 Barranca Parkway
Irvine, CA 92618
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, 14th Floor
Costa Mesa, CA 92626
Attention: F. Kevin Brazil
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.
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3. DEVELOPMENT OF THE PROPERTY.
3.1. Public Benefits. This Agreement provides assurances that the Project identified
below will be achieved and developed in accordance with the Applicable Rules and this
Agreement, and subject to City's Reservation of Authority. The Parties believe that such orderly
development of the Project will provide the benefits to the City and additional regional public
benefits including: new housing in immediate adjacency to employment, increased tax revenues,
installation of on-site and off-site improvements, and creation and retention of jobs. In addition
Developer will provide the following additional Public Benefits which constitute specific
additional consideration for this Agreement for the benefit of City:
3.1.1 District Formation. Developer, on behalf of itself and its Successor
Owners, agrees to the imposition of a community facilities district with a "Tax B" component
(the "District"). If established, the District shall be a tax and lien upon the Property in
accordance with the terms of the instruments governing the District and the requirements of this
Agreement. The "Tax B" proceeds 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. The term of "Tax B" imposed upon the
Property and the Improvements shall be perpetual and shall not be time limited in any manner
unless determined by City in its sole discretion. 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 annual property tax burden on each Home including all
general and special taxes and assessments from the District shall not exceed the amount shown
on Exhibit "D" attached hereto (the "Maximum Tax Burden Schedule"). Thereafter, taxes and
assessments imposed pursuant to any District may be adjusted upward at a rate of not less than
two 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.
(b) At the sole discretion of the City, the District may be structured
such that assessments shall be due and payable with respect to the Development Parcels without
consideration for whether or not Homes have been Completed thereon (i.e., such that all Homes
shall be assessed as improved or developed property); provided however, the District assessment
on unimproved land or undeveloped portions of the Property shall be at an undeveloped property
assessment rate of Zero Dollars until a date established by the City, but in no event earlier than
the commencement of the 2018/2019 tax year.
(c) Developer will not oppose a determination by the City to form the
District, including a determination to subject all or any portion of the Development Parcels and.
the Improvements thereon to such assessment, provided that the City, the District and such
assessments comply with Section 3.1.1(a), b) and (d). For the avoidance of doubt, nothing in the
foregoing shall prevent Developer from complying in all material respects with Developer's
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disclosure obligations 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).
(d) 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
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.
(e) The foregoing Tax B shall be imposed by the City in its
Governmental Capacity as an additional Public Benefit made applicable to the Property and the
Improvements thereon. The agreement of Developer to imposition of the District on 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.
(f) In addition to the requirements in this Agreement, the
establishment of the District and assessments imposed thereby and the proceeds of any bonds
issued in connection therewith shall be payable to the City as Public Benefits pursuant to the
DDA. 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 this Agreement,
including the right to withhold building permits with respect to the Project, if Developer fails to
timely comply with its obligations with respect to the District.
(g) The City shall not be prohibited by the terms of this Agreement
from subjecting the Property and 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 right to dispute any portion of
the Property' assessed value.
3.1.2 Developer shall pay the Project Fair Share Contribution to the City as and
when described in Section 3.13.3.
3.1.3 Developer shall complete the Public Benefit Improvements listed on
Exhibit "C" within the time periods set forth therein.
3.1.4 At the close of escrow for the Property pursuant to the DDA, Developer
shall Record a covenant, in the form and substance of the public access covenant and declaration
of easement attached hereto as Exhibit `B" or in such other form acceptable to the City in its sole
discretion, for the benefit of the City and its successors and assigns ("Covenant"), which
Covenant shall be Recorded against the entirety of the Property and shall grant a public access
easement in gross over the Publicly Accessible Common Area for the benefit of the City and its
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permittees, including the general public, providing the right of vehicular, bicycle and pedestrian
access, to, from, upon, over and across the Private Streets and Sidewalks and to and from the
adjoining public streets and sidewalks, as more specifically set forth in the Covenant. As further
described in the Covenant, the Recorded easements for the Publicly Accessible Common Area
shall be memorialized in the future Condominium Plans, following Recordation of those
Condominium Plans and the phased termination of the Covenant, in order to 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 Area and the Publicly Accessible Common Area
Improvements.
3.1.5 Notwithstanding anything to the contrary in this Agreement, if any
payment under this Section 3.1 is not made or any obligation requiring performance is not
performed by Developer, the City may withhold further issuance of building permits and other
approvals, including final maps, for the Project until such time as Developer has made the
required payment or undertaken the required performance.
3.2. Developer Objectives. In accordance with the legislative findings set forth in
Government Code Section 65864, the Developer wishes to obtain reasonable assurances that the
Project may be developed in accordance with the Applicable Rules and Existing Entitlement
Approvals and with the terms of this Agreement and subject to City's Reservation of Authority.
To the extent of Project development, and as provided by Section 3.5.2, Developer anticipates
making capital expenditures or causing capital expenditures to be made in reliance upon the
DDA and this Agreement. In the absence of this Agreement, Developer would have no
assurance that it can complete the Project for the uses and to the density and intensity of
development set forth in this Agreement and the Existing Entitlement Approvals. This
Agreement, therefore, is necessary to assure Developer that the Project will not be (1) reduced or
otherwise modified in density, intensity or use from what is set forth in the Existing Entitlement
Approvals; or (2) subjected to new rules, regulations, ordinances or official policies or plans
except for Future Rules made applicable pursuant to the terms of this Agreement.
3.3. Mutual Objectives. Development of the Project in accordance with this
Development Agreement will provide for the orderly development of the Property in accordance
with the objectives set forth in the General Plan. Moreover, a development agreement for the
Project will eliminate uncertainty in planning for and securing orderly development of the
Property, assure installation of necessary improvements, assure attainment of maximum efficient
resource utilization within the City at the least economic cost to its citizens and otherwise
achieve the goals and purposes established by Government Code Section 65864. Additionally,
although development of the Project in accordance with this Agreement will constrain the City's
land use or other relevant police powers, this Agreement provides City with sufficient reserved
powers during the term hereof to remain responsible and accountable to its residents. In
exchange for these and other benefits to City, the Developer will receive assurance that the
Project may be developed during the term of this Agreement in accordance with the Applicable
Rules, Entitlement Approvals and Reservation of Authority, subject to the terms and conditions
of this Agreement.
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3.4. Applicability of the Agreement. This Agreement does not: (a) grant density or
intensity in excess of that otherwise established in the Existing Entitlement Approvals;
(b) eliminate future discretionary actions relating to the Project that are either required by the
Applicable Rules or requested by Developer pursuant to applications initiated and submitted by
Developer after the Effective Date; (c) guarantee that Developer will receive any profits from the
Project; (d) amend the DDA, the Specific Plan or the General Plan; (e) except as specifically set
forth in Section 3.6.2 and 3.10, protect the Developer, the Project or the Property from the
applicability of any Future Rules (i) imposed pursuant to City's Reservation of Authority or
(ii) adopted by the City and not in conflict (as defined in Section 3.6.2) with Existing Land Use
Regulations; or (f) protect the Developer, the Project or the Property from the applicability of
any increases in development fees or City Processing Fees.
3.5. Agreement and Assurance on the Part of the Developer. In consideration for City
entering into this Agreement, and as an inducement for City to obligate itself to carry out the
covenants and conditions set forth in this Agreement, and in order to effectuate the premises,
purposes and intentions set forth in this Agreement, Developer hereby agrees as follows:
3.5.1 Project Development. Developer agrees that it will use commercially
reasonable efforts, in accordance with its own business judgment and taking into account market
conditions and economic considerations, to undertake any development of the Project in
accordance with the terms and conditions of the DDA, this Agreement and the Existing
Entitlement Approvals.
3.5.2 Additional Obligations of Developer as Consideration for this Agreement.
In addition to the obligations identified in Section 3.1, the development assurances provided by
this Agreement and the resulting construction of the Project will result in the following:
(a) Construction of a two hundred eighteen (218) unit for -sale
residential condominium complex upon the Property, containing approximately fifty-seven (57)
detached and one hundred sixty one (16 1) attached units, consistent with this Agreement, the
Applicable Rules, the Entitlement Approvals and the DDA, including in accordance with the
schedule of performance set forth in the DDA.
(b) Construction of all Improvements identified in the DDA in
accordance with the schedule of performance set forth in the DDA.
(c) Completion of all Public Benefit Improvements identified on
Exhibit "C" in accordance with the schedule of performance set forth in the DDA and this
Agreement.
(d) Compliance with the DDA, the Applicable Rules and Entitlement
Approvals, state and federal law, all mitigation measures, including measures imposed pursuant
to CEQA, all Development Permits and all conditions of approval associated with the foregoing.
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(e) Payment of all required development related fees as set forth in the
DDA and this Agreement.
3.6. Agreement and Assurances on the Part of City. In consideration for Developer
entering into this Agreement, and as an inducement for Developer to obligate itself to carry out
the covenants and conditions set forth in this Agreement, and in order to effectuate the purpose
of this Agreement, City hereby agrees as follows:
3.6.1 Applicable Regulations; Vested Right to Develop. To the maximum
extent permitted by law, Developer has the vested right for the term of this Agreement to
develop the Project subject to the terms and conditions of the DDA, this Agreement, the
Applicable Rules, state and federal law, and the Existing Entitlement Approvals and any
Subsequent Entitlement Approvals approved by City, in each case subject to City's Reservation
of Authority. Other than as expressly set forth herein, during the Term of this Agreement, the
terms and conditions of development applicable to the Property, including the permitted uses of
the Property, the density and intensity of use, maximum height and size of proposed buildings,
the design, improvement and construction standards and specifications applicable to the
development of the Property, including any changes authorized pursuant to Section 3.6.2, and the
provisions for the reservation and dedication of land as needed for public purposes pursuant to
Governmental Requirements, shall be those set forth in the DDA, the Applicable Rules, and the
Entitlement Approvals. In connection therewith and subject to the terms of this Agreement
including the Reservation of Authority, Developer shall have the Vested Rights to carry out and
develop the Property in accordance with the Applicable Rules and the Entitlement Approvals and
the provisions of this Agreement.
3.6.2 Changes Authorized by City. To the extent any changes in the Existing
Land Use Regulations, or any provisions of future General Plans, Specific Plans, Zoning
Ordinances or other rules, regulations, ordinances or policies of City (whether adopted by means
of ordinance, initiative, referenda, resolution, policy, order, moratorium, or other means, adopted
by the City Council, Planning Commission, or any other board, commission, agency, committee,
or department of City, or any officer or employee thereof) following the Effective Date
(collectively, "Future Rules") are not in conflict with the Vested Rights, such Future Rules shall
be applicable to the Project. For purposes of this Section 3.6.2, the word "conflict" means Future
Rules that would (a) frustrate in a more than insignificant way the intent or purpose of the
Applicable Rules in relation to the Project; (b) materially increase the cost of performance of, or
preclude compliance with, any provision of the Vested Right; (c) delay in a more than
insignificant way development of the Project; (d) limit or restrict the availability of public
utilities, services, infrastructure of facilities (for example, but not by way of limitation, water
rights, water connection or sewage capacity rights, sewer connections, etc.) to the Project; or
(e) impose limits or controls in the rate, timing, phasing or sequencing of development of the
Project.
Notwithstanding the foregoing, a Future Rule that conflicts with the Applicable Rules
shall nonetheless apply to the Property if, and only if one of the following apply: (i) it is
consented to in writing by Developer; (ii) it is determined by City and evidenced through
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findings adopted by the City Council that the change or provision is reasonably required in order
to prevent a condition dangerous to the public health or safety as set forth in Section 3.10.3,-
(iii)
.10.3;(iii) required by changes in State or Federal law as set forth in Section 3.10.2; (iv) it consists of
revisions to, or new building regulations permitted by Section 3.10.4; or (v) it is otherwise
expressly permitted by this Agreement.
3.6.3 Availability of Public Services. To the maximum extent permitted by law
and consistent with its authority, City shall use commercially reasonable efforts to assist
Developer in reserving such capacity for sewer and water services as may be necessary to serve
the Project, at no cost or expense to City.
3.6.4 Allocation of Development Rights under Specific Plan. City hereby
acknowledges that it has allocated to the Property and reserved for development of the Project a
total of two hundred eighteen (218) residential units from the total Specific Plan Neighborhood
G, Planning Area 15 authorization; provided that the total number of residential unit
development rights actually allocated to the Property shall be equal to two hundred eighteen
(218) residential units or such lesser number of units as are described on the Recorded
Condominium Plans and actually constructed by Developer prior to issuance of 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 Neighborhood G, Planning Area 15 above the number of
units shown on the Recorded Condominium Plans and constructed prior to the issuance of the
Certificate of Compliance, and the units and development rights retained by the City shall be
freely transferable by the City throughout Tustin Legacy.
3.7. Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terms of this Agreement including the Reservation of Authority (and notwithstanding
any fature action of City or its citizens, whether by ordinance, resolution, initiative or otherwise),
the rules, regulations, and official policies governing the Project, including the permitted uses of
the Property, the density and intensity of use of the Property, the maximum height and size of
proposed buildings, the design, improvement and construction standards and specifications
applicable to the Project, including any changes authorized pursuant to Section 3.6.2, the
subdivision of land and requirements for infrastructure and public improvements, and other
terms and conditions of the Project, shall be the Applicable Rules and the provisions of this
Agreement. City shall accept for processing and review and take action on all applications for
Subsequent Entitlement Approvals as provided in Section 3.9. In connection with any
Subsequent Entitlement Approval, City shall exercise discretion in the same manner as it
exercises its discretion under its police powers, including the Reservation of Authority; provided
however, that such discretion shall not prevent development of the Project as set forth in this
Agreement.
3.8. Timing of Development. The timing of development will be as set forth in the
DDA. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo
(1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of
development resulted in a later adopted initiative restricting the timing of development to prevail
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over such parties' agreement, it is the Parties' intent to cure that deficiency by acknowledging
and providing that Developer will adhere to the terms of the DDA regarding the timing of
development.
3.9. Subsequent Entitlement Approvals; Changes and Amendments. The Parties
acknowledge that refinement and further development of the Project may require Subsequent
Entitlement Approvals and may demonstrate that changes are appropriate and desirable in the
Existing Entitlement Approvals. Entitlement Approvals (except for this Agreement, the
amendment process for which is set forth in Section 2.6) may be amended or modified from time
to time, but only at the written request of Developer or with the written consent of Developer (in
its sole and absolute discretion). All amendments to the Entitlement Approvals shall
automatically become part of the Applicable Rules. In the event Developer finds that a change
in the Existing Entitlement Approvals is necessary or appropriate, Developer shall apply for a
Subsequent Entitlement Approval to effectuate such change and City shall process and act on
such application in accordance with the Applicable Rules, except as otherwise provided by this
Agreement, including the Reservation of Authority. If approved, any such change in the
Existing Entitlement Approvals shall thereafter be deemed to be an Existing Entitlement
Approval and a Vested Right for all purposes of this Agreement without requiring an amendment
to this Agreement and may be further changed from time to time as provided in this Section.
3.10. Reservation of Authority. Notwithstanding any other provision of this Agreement
to the contrary, the Future Rules described in this Section 3.10 shall apply to and govern
development of the Property and Project to the extent set forth herein.
3.10.1 Consistent Future City Regulations. Future Rules shall apply to and
govern development of the Property, provided that any Future Rules which reduce the density or
intensity of the Project below that permitted by the Existing Land Use Regulations or the
Existing Entitlement Approvals, alter the permitted uses of the Property, reduce the maximum
height or size of any permitted buildings, impose additional obligations in connection with the
reservation or dedication of land for public purposes beyond the requirements identified in the
DDA, or limit the rate, timing, or sequencing of development of the Property from that required
in the DDA or in any Entitlement Approvals, shall be deemed inconsistent with this Agreement
and shall not be applicable to the development of the Property and Project.
3.10.2 Overriding State and Federal Laws. City shall not be precluded from
adopting and applying Future Rules to the Property and the development of the Project to the
extent that such Future Rules are required to be applied by State or Federal laws or regulations
even if such Future Rules would override Developer's Vested Rights as set forth in this
Agreement, provided however, that (a) Developer does not waive its right to challenge or contest
the validity of such State or Federal rules or regulations; and (b) such Future Rules, if in conflict
with the Vested Rights (as defined in Section 3.6.2), shall only be applied to the Project and
development of the Project to the extent necessary to comply with such new State or Federal law
or regulation. In the event that such State or Federal law or regulation (or Future Rules
undertaken pursuant thereto) prevents or precludes substantial compliance with one or more
provisions of the Existing Land Use Regulations or this Agreement, the Parties agree to consider
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in good faith amending or suspending such provisions of this Agreement as may be necessary to
comply with such State or Federal laws (or Future Rules), provided that no Party shall be bound
to approve any amendment to this Agreement unless this Agreement is amended in accordance
with the procedures applicable to the adoption of development agreements as set forth in the
Development Agreement Statute and Tustin City Code and each Party retains full discretion with
respect thereto.
3.10.3 Public Health and Safety. Nothing in this Agreement shall preclude the
City Council from adopting and applying Future Rules that the City Council finds are reasonably
necessary to protect persons on the Property or in the immediate community, or both, from
conditions dangerous to their health or safety notwithstanding that the applications of such
Future Rules, or other similar limitation would result in the impairment of Developer's Vested
Rights under the Agreement or the Existing Land Use Regulations. In determining whether any
such Future Rules are reasonably necessary to protect persons as set forth above, the City
Council shall make findings, based on evidence presented to and accepted by the City Council
that the changes are reasonably necessary to protect the public health or safety. The provisions
of this Section 3.10.3 do not apply to any measure adopted by initiative or referendum.
3.10.4 Uniform Construction Codes and Regulations. Policies and rules
governing engineering and construction standards and specifications applicable to public and
private improvements, including all uniform codes adopted by City and any local amendments to
those codes adopted by City in the future shall apply to the Project and Property.
3.10.5 Police Power. In all respects not provided for in this Agreement, City
shall retain full rights to exercise its police powers to regulate development of the Project and
Property. Any uses or development requiring design review, a tentative tract map, a conditional
use permit, a variance, or other Entitlement Approvals in accordance with Existing Land Use
Regulations shall require a permit or approval pursuant to this Agreement and notwithstanding
any other provision set forth herein, this Agreement is not intended to vest Developer's right to
issuance of such permit or approval.
3.11. Processing.
3.11.1 Subdivisions. A subdivision, as defined in Government Code -Section
66473.7, shall not be approved unless a tentative map for the subdivision complies with the
provisions of said Section 66473.7. This provision is included in this Agreement to comply with
Section 65867.5 of the Government Code.
3.11.2 Subsequent Entitlement Approvals. City shall employ all lawful actions
capable of being undertaken by City to promptly (a) accept all complete applications for
Subsequent Entitlement Approvals (collectively, "Applications") and (b) process and take action
upon Applications in accordance with the Applicable Rules with a goal of completing the review
within time frames identified in the DDA; provided however, that City shall not be deemed in
default under this Agreement should such time frame(s) not be met. To the extent that
Developer desires that City plan check or process an Application on an expedited basis and to the
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extent that it requires an additional expense beyond the customary expense applicable to the
general public, City shall inform Developer of such additional expense, including the cost of
overtime and private consultants and other third parties. If acceptable to Developer, Developer
shall pay the additional cost and City shall use good faith efforts to accelerate the processing
time utilizing overtime and the services of private consultants and third parties to the extent
available. Upon the written request of Developer, City shall inform Developer of the necessary
application requirements for any requested City approval or requirement relating to the Project.
At such time as a Subsequent Entitlement Approval applicable to the Property is approved by
City, then such Subsequent Entitlement Approval shall become subject to all of the terms and
conditions of this Development Agreement and shall be treated as an "Entitlement Approval"
under this Development Agreement.
3.11.3 Filings. Developer shall exercise reasonable efforts to file applications for
Development Permits and Entitlement Approvals within the time frames and schedules as
generally outlined in the DDA and shall exercise reasonable efforts to attempt to obtain
Development Permits and Entitlement Approvals within the time frames identified in the DDA;
provided, however, that failure solely to comply with such time frame(s) shall not be deemed to
be a default under this Agreement.
3.11.4 Cooperation. City and Developer shall cooperate in processing all
applications for permits and approvals for the Project, provided, however, that such cooperation
shall not include any obligation of City to incur any un -reimbursed expense, and City shall be
entitled, subject to the terms of this Agreement, the DDA and. Developer's rights hereunder, to
exercise all discretion to which it is entitled by law in processing and issuing any permits and
approvals for the Project.
3.11.5 Approvals. Notwithstanding any administrative or judicial proceedings,
initiative or referendum concerning any of the Entitlement Approvals, City shall process
applications for permits and approvals as provided herein to the fullest extent allowed by law and
Developer may proceed at its sole risk with development of the Project pursuant to the DDA the
Applicable Rules and Entitlement Approvals to the fullest extent allowed by law.
3.12. CEQA. This Agreement does not modify, alter or change the City's obligations
pursuant to CEQA. Developer acknowledges that City is required by State law to comply with
CEQA in the consideration and approval of any Subsequent Entitlement Approval and/or any
amendment to this Agreement. The EIR, which has been certified by City as being in
compliance with CEQA, addresses the potential environmental impacts of the entire Project as it
is described in the Existing Entitlement Approvals. Nothing in this Agreement shall require or
be construed to require CEQA review of ministerial approvals. It is agreed that, in acting on any
discretionary Subsequent Entitlement Approvals for the Project, City shall rely on the EIR to
satisfy the requirements of CEQA to the extent permissible by CEQA. In the event that any
additional CEQA documentation is legally required for any discretionary Subsequent Entitlement
Approval for the Project, then the scope of such documentation shall be focused, to the extent
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possible consistent with CEQA, on the specific subject matter of the Subsequent Entitlement
Approval and City shall conduct such CEQA review as expeditiously as possible, at Developer's
expense. Nothing herein shall restrict or limit the obligation of Developer to pay for and
implement any additional mitigation measures or conditions of approval imposed as a result of
such CEQA and any Subsequent Entitlement Approval process.
3.13. Fees.
3.13.1 Processing Fees and Charges.
(a) The City shall have the right to charge and Developer shall be
required to pay all City Processing Fees for the Project. Except as otherwise specifically set
forth in Section 3.13.1(b), such City Processing Fees shall be paid in accordance with the
procedures and at the generally applicable rates in effect at the time such City Processing Fees
are due.
(b) With respect to Plan Check and Inspection Services only, the City
shall be entitled to charge and Developer shall reimburse the City for its costs to make available
City staff, including the City Attorney, and third -party engineers and consultants, if any, as
required to complete, process, and review plans and applications, complete plan check, perform
inspections, and monitor Developer compliance with the requirements of this Agreement and the
Applicable Rules. Not later than ten (10) Business Days following approval by the City of this
Agreement, and as a condition to the effectiveness of this Agreement, Developer shall deliver to
the City in cash or cash equivalent funds, a deposit in an amount reasonably requested by City
which shall be based on the City's estimate of staff and third -party consultant time required to
complete and perform plan check and inspections (the "City Costs Deposit"). The City Costs
Deposit shall be deposited by the City in an account in a bank or trust company selected by the
City and with no requirement that such account be interest bearing. If any interest is paid on
such account, such interest shall accrue to any balances in the account for the benefit of the City.
If at any time prior to the latest to occur of (a) issuance of the final Certificate of Compliance for
the Property; (b) the issuance of the final certificate of occupancy for a Building on the Property;
or (c) termination of the DDA (the "Final Date"), the amount of fiends in the City Costs Deposit
account is depleted below Ten Thousand Dollars ($10,000), then Developer shall be required to
pay to the City each time an additional Twenty Thousand Dollars ($20,000) or such other
amount as the City may specify as required in City's estimation to cover the cost of Plan Check
and Inspection Fees, 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 reduce the
amount of Plan Check and Inspection Fees incurred by the City. The City Costs Deposit has
been established to fiend the Plan Check and Inspection Fees incurred by the City and may be
used by the City for such purpose, and shall be depleted accordingly. Immediately upon
incurring any Plan Check and Inspection Fees or costs or receipt of an invoice from third parties
for same, the City shall have the right to deduct the amounts due it on account thereof from the
City Costs Deposit. A monthly accounting of deductions documenting staff time spent to
process and review plans and applications, complete plan check, perform inspections, and
monitor Developer compliance, along with documentation evidencing any other deductions from
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the City Costs Deposit shall be provided by City to Developer. The City Costs Deposit shall be
retained by the City until the Final Date specified above and the remaining amount of the City
Costs Deposit then held by the City, if any, shall be promptly returned by the City to Developer
thereafter, provided that the return of such funds shall not terminate the obligations of Developer
to pay all City Processing Fees arising or incurred prior to the Final Date. Developer shall pay
any outstanding amounts due with respect to the City Processing Fees to the City within thirty
(30) calendar days following receipt of an invoice from the City therefor, provided that the City
shall first apply the amount of the City Costs Deposit, if any, then held by it in satisfaction of
such invoice, and shall reflect the amount of such credit on the invoice.
3.13.2 Development Fees. City shall have the right to impose, and Developer
shall pay, all development fees adopted by City at the time of issuance of building permits for the
Project.
3.13.3 Project Fair Share Contribution, The Project Fair Share Contribution
(relating to the Tustin Legacy Backbone Infrastructure Program) to be contributed by Developer
with respect to the Project shall be One Million Three Hundred Forty -One Thousand One
Hundred Forty Three Dollars and Zero Cents ($1,341,143.00). Such amount shall be paid at the
Close of Escrow under the DDA and shall be in addition to the Base Purchase Price for the
Property pursuant to the DDA.
3.14. Dedications; Pedestrian Bridge.
3.14.1 Dedications. Developer acknowledges and agrees that it is required (and
will be required): (a) to make an irrevocable offer of dedication to the City of a fee interest in
and to Lot A (as depicted on the Tentative Tract Map 18125) ("Lot A"), upon which the City
shall have the right, but not the obligation, to construct a pedestrian bridge between Lot A and
the property located across Tustin Ranch Road ("Pedestrian Bridge"); and (b) dedicate to City
and other public agencies on the approved tentative tract map, or in conjunction with Entitlement
Approvals, certain required dedications as required by the DDA and the Applicable Rules, and
pursuant to the EIR. and as required pursuant to Developer's assumption of City MCAS Tustin
obligations under the "Agreement Between the City of Irvine and the City of Tustin Regarding
the Implementation, Timing, Funding of Transportation/ Circulation Mitigation for the MCAS
Tustin Project" and the "Amendment to the Joint Exercise of Powers Agreement Between the
City of Santa Ana and the City of Tustin Regarding the Tustin -Santa Ana Transportation
Improvement Authority".
3.14.2 Pedestrian Bridge. As described in the Specific Plan, the City is
contemplating construction of a Pedestrian Bridge within all or a portion of Lot A. If the City
chooses, in its sole discretion, to construct the Pedestrian Bridge, the Developer shall be
provided a reasonable opportunity to review and comment on the plans and specifications for the
Pedestrian Bridge in order to seek to minimize impacts to the Approved Plans.
3.15. Regulation by Other Public Agencies. It is acknowledged by the Parties that other
public agencies not within the control of City possess authority to regulate aspects of the Project
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and development of the Property separately from or jointly with City and this Agreement does
not limit the authority of such other public agencies. City agrees to cooperate fully, at no out of
pocket cost to City, with Developer in obtaining any required permits or compliance with the
regulations of other public agencies provided such cooperation is not in conflict with any laws,
regulations or policies of City.
3.16. Tentative Tract Map Extension. Any subdivision map, heretofore or hereafter
approved in connection with development of the Property, shall be eligible for extensions of time
as provided in Government Code Section 66452.6, except that any extension shall be consistent
with any applicable performance schedule as provided or established in the DDA and shall not
be deemed or considered in any way an extension of any Developer rights or obligations under
the DDA.
3.17. Certain Restrictions on Building Permit Issuance; Recording of Final Map.
Development of the Project will require approval by City of the Final Map. Developer
acknowledges and agrees that City will not issue a building permit for any Homes, other than
model Homes, until such time as (a) the Final Map has been approved by City and Recorded and
(b) City and Developer have entered into a Subdivision Improvement Agreement in form
approved by City in its Governmental Capacity.
3.18. No Quimby Act Fees or Park Fees. Except as set forth on Exhibit "C" or required
by the Entitlement Approvals, all fees and/or dedications required in connection with the Project
pursuant to the Quimby Act, California Government Code Section 66477, are included within
the Project Fair Share Contribution and Developer shall not have any additional liability on
account thereof.
3.19. Compliance with Legal Requirements. Prior to the issuance of any certificate of
occupancy for any Home within a Phase, Developer shall satisfy all applicable requirements of
the Tustin Municipal Code, Specific Plan, and conditions of approval of the Entitlement
Approvals relating to or necessary for such Home prior to the issuance of a certificate of
occupancy for such Home, including compliance with the Americans with Disabilities Act and
necessary Horizontal Improvements, including Common Area Improvements, to support such
Home.
3.20. Required Completion of Horizontal Improvements. Developer shall complete all
Horizontal Improvements (as such term is defined in the DDA) prior to the issuance of the
certificate of occupancy for the first Home.
3.21. Required Landscaping and Irrigation Improvements. Developer shall complete all
landscaping and irrigation improvements that had been assured through the provision of bonds,
guarantees, cash collateral, or other instruments pursuant to Exhibit "C" of this Agreement prior
to the issuance of the final certificate of occupancy for the units in the last Phase. Developer
shall enter into a Landscape Installation and Maintenance Agreement with the City of Tustin for
the construction, maintenance, repair, and replacement of the landscaping described in the DDA
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for the maintenance of parkway improvements within public rights-of-way adjacent to the
project along Victory Road, Park Avenue, Moffett Drive and Tustin Ranch Road.
4. ANNUAL REVIEW.
4.1. Timing and Annual Review. The City Council shall review Developer's
performance under this Agreement at least every twelve (12) months from the Effective Date
until expiration of the Agreement. In connection with such review, both City and Developer
shall have a reasonable opportunity to assert matters which either believes have not been
undertaken in accordance with this Agreement, to explain the basis for such assertion, and to
receive from the other Party a justification of its position on such matters.
4.2. Review Procedure. City shall provide notice to Developer and deliver to
Developer a copy of all public staff reports, documents and related exhibits concerning City's
review of Developer's performance hereunder at least thirty (30) calendar days prior to any date
proposed for City Council review of performance under the Agreement.
4.3. Good Faith Compliance. Developer shall demonstrate good faith compliance
with the terms of this Agreement and shall furnish evidence of good faith compliance, as City, in
its reasonable exercise of its discretion, may require. Evidence of good faith compliance may
include the following:
(a) conformance with the DDA including the Scope of Development and
Schedule of Performance;
(b) conformance with the requirements of the Specific Plan; and
(c) conformance with provisions of this Agreement identified by City.
4.3.2 Response. Developer shall have the opportunity to be heard and respond
to City's evaluation of Developer's performance, either orally or in a written statement, at
Developer's election.
4.3.3 Non -Compliance. If, as a result of its periodic review as described in
Section 4.1, the City Council finds and determines, on the basis of substantial evidence, that the
Developer has not complied in good faith with the terms or conditions of this Agreement, the
City Council may commence proceedings to enforce, modify, or terminate this Agreement.
4.3.4 Referral. The City Council may refer the matter to the Planning
Commission for further proceedings or for a report and recommendation.
4.4. Modification or Termination. If the City Council determines to proceed with
modification or termination of this Agreement, the City Council shall give notice to Developer of
its intention to do so. The Notice shall contain all information required by Tustin City Code
Section 9618. At the time and place set for the hearing on modification or termination, the City
Council may refer the matter back to the Planning Commission for further proceedings or for a
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report and recommendation. The City Council may take such action as it deems necessary to
protect the interests of City, including the receipt of additional evidence as to Developer's
compliance with the terms of this Agreement. The decision of the City Council shall be final,
subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b).
4.5. Certificate of Agreement Compliance. If, at the conclusion of a periodic review,
Developer is found to be in compliance with this Agreement, City shall, upon request of the
Developer, issue a Certificate (the "Certificate") to Developer stating that after the most recent
periodic review and based upon the information known or made known to the City Council that:
(a) this Agreement remains in effect, and (b) Developer is not in default. The Certificate shall be
in Recordable form, shall contain information necessary to communicate constructive record
notice of the finding of compliance, and shall state the anticipated date of commencement of the
next periodic review. Developer may Record the Certificate with the County Recorder. If City
does not find Developer to be in compliance with this Agreement, it shall not be obligated to
issue the Certificate.
5. DEFAULT. REMEDIES. AND TERMINATION.
5.1. Default Procedure. A non -defaulting Party (the "Non -Defaulting Party") at its
discretion may elect to declare a default under this Agreement in accordance with the procedures
hereinafter set forth for any failure or breach of any other Party ("Defaulting Party") to perform
any material duty or obligation of said Defaulting Party in accordance with the terms of this
Agreement. However, the Non -Defaulting Party must provide written notice to the Defaulting
Party setting forth the nature of the breach or failure and, the actions, if any, required by the
Defaulting Party to cure such breach or failure. The Defaulting Party shall be deemed to be in
"default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take
action and cure the default within ten (10) calendar days after the date of such notice (for
monetary defaults) or within thirty (30) calendar days after the date of such notice (for non -
monetary defaults). If, however, a non -monetary default cannot be cured within such thirty (30)
day period, as long as the Defaulting Party does each of the following:
(a) provides the Non -Defaulting Party with a written, reasonable explanation
as to the reasons the asserted default is not curable within the thirty (30) day period;
(b) notifies the Non -Defaulting Party in writing of the Defaulting Party's
proposed course of action to cure the default;
(c) promptly commences to cure the default within the thirty (30) day period;
(d) makes periodic written reports to the Non -Defaulting Party as to the
progress of the program of cure; and
(e) diligently prosecutes such cure to completion,
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then the Non -Defaulting Party shall grant in writing the Defaulting Party such additional time as
determined by the Non -Defaulting Party as reasonably necessary to cure such default.
5.2. City' Remedies. In the event of an uncured default by Developer under this
Agreement, the City, at its option, may institute legal action to cure, correct or remedy such
default, enjoining any threatened or attempted violation, enforce the terms of this Agreement by
specific performance, or pursue any other legal or equitable remedy. Furthermore, City, in
addition to or as an alternative to exercising the remedies in this Section 5.2, in the event of a
material default by Developer, may give notice of its intent to terminate or modify this
Agreement pursuant to Section 4.3, in which event the matter shall be scheduled for
consideration and review by the City Council in the manner set forth in Tustin City Code Section
9618. The decision of the City Council shall be final, subject only to judicial review pursuant to
California Code of Civil Procedure Section 1094.5(b).
5.3. Developer's Remedies. In the event of an uncured default of City under this
Agreement, Developer shall be entitled to any or all of the following remedies: (a) seeking
mandamus or special writs, injunctive relief, or specific performance of this Agreement;
(b) modification or termination of this Agreement; or (c) seeking any other remedy available at
law or in equity, provided, however, except as provided in Section 8.10, the Developer agrees
and covenants on behalf of itself and its Successors In Interest, not to sue City for damages or
monetary relief for any breach of this Agreement or arising out of or connected with any dispute,
controversy or issue regarding the application or effect of this Agreement, or for general, special,
compensatory, expectation, anticipation, indirect, consequential, exemplary, or punitive damages
("Damages") arising out of or connected with any dispute, controversy, or issues regarding the
application or effect of this Agreement, the DDA, the Applicable Rules, or any Development
Permits or Entitlement Approvals sought in connection with development or use of the Property
or Project, or any portion thereof. Developer acknowledges that City would not have entered
into this Agreement if City could be held liable for Damages for any default or breach arising out
of this Agreement and that Developer has adequate remedies other than Damages to secure
City's compliance with its obligations under this Agreement. Therefore, Developer agrees that
City, its officers, employees and agents shall not be liable for any Damages and that this section
shall apply to all Successors in Interest of the Developer.
5.4. Third Party Legal Challenges. In the event of any legal action instituted by a third
party challenging the validity or enforceability of any provision of this Agreement, the
Applicable Rules, the DDA, or Entitlement Approvals for the Project or the approval of any
CEQA document prepared in connection with the foregoing, Developer agrees, at its sole cost
and expense, to defend (with counsel reasonably acceptable to City), indemnify, and hold
harmless City, its officers, employees, agents, and consultants, from any claim, action, or
proceeding against City, its officers, agents, and employees, which seeks to attack, set aside,
challenge, void, or annul an approval of the City Council, the Planning Commission, or any other
decision-making body, including staff, concerning the Project. City agrees to promptly notify
Developer of any such claim or action filed against City and to cooperate in the defense of any
such action. Developer shall also indemnify and hold harmless City and its agents, officials and
employees from and against all claims, losses, or liabilities assessed or awarded against City by
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way of judgment, settlement, or stipulation. City may elect to participate in the defense of any
such action under this condition.
6. INDEMNITY BY DEVELOPER.
Developer agrees to indemnify, defend, and hold harmless City, City's designees, and
their respective elected and appointed officials, boards, commissions, agents, contractors, and
employees from and against any and all actions, suits, claims, liabilities, losses, damages,
penalties, obligations and expenses (including attorney's fees and costs) which may arise,
directly or indirectly, from the acts, omissions, or operations of Developer or Developer's agents,
contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any
loss resulting from the intentional or active negligence of City, City's designee, or each of their
respective elected and appointed officials, boards, commissions, officers, agents, contractors, and
employees. Developer shall select and retain counsel reasonably acceptable to City to defend
any action or actions and Developer shall pay the cost thereof. The indemnity provisions set
forth in this Agreement shall survive termination of the Agreement.
7. MORTGAGEE PROTECTION.
The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any
manner, from encumbering the Property or any portion thereof or any improvement thereon by
any Mortgage securing financing with respect to the Property; provided that nothing herein shall
modify or amend the restrictions set forth in the DDA with respect to Mortgages. Any
Mortgagee holding a Mortgage that is not prohibited by the DDA shall be entitled to the
following rights and privileges:
(a) This Agreement shall be superior and senior to any lien placed upon the Property
or any portion thereof after the date of Recording of this Agreement, including the lien of any
Mortgage. Notwithstanding the foregoing, neither entering into this Agreement nor a breach of
this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage on the
Property made in good faith and for value, unless otherwise required by law, and any acquisition
or acceptance of title or any right or interest in or with respect to the Property or any portion
thereof by a Mortgagee (whether pursuant to foreclosure, trustee's sale, deed in lieu of
foreclosure, lease termination or otherwise) shall be subject to the terms and conditions of this
Agreement and any such Mortgagee who takes title to the Property or any portion thereof shall
be entitled to benefits arising under this Agreement.
(b) Each Mortgagee of any Mortgage encumbering the Property, or any part thereof,
and which is not securing the interest of an End User shall upon written request in writing to
City, be entitled to receive written notice from City of results of the Annual Review and of any
default by Developer in the performance of Developer's obligations under this Agreement
concurrently with delivery of same to Developer and shall have the right, but not the obligation,
to cure the default during the remaining cure period allowed such Party under this Agreement
(including any extended cure period necessary in order to allow the Mortgagee to obtain title to
the Property and cure the default). Notwithstanding the foregoing, the failure of City to deliver a
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concurrent copy of such notice of default to a Mortgagee shall not affect in any way the validity
of the notice of default as it relates to the Developer, and provided, further, the giving of any
notice of default or the failure to deliver a copy to any Permitted Mortgagee shall in no event
create any liability on the part of the Person so declaring a default.
(c) Any Mortgagee who comes into possession of the Property, or any part thereof,
pursuant to foreclosure of the Mortgage or deed in lieu of such foreclosure, shall take the
Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other
provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under
this Agreement to perform any of Developer's obligations or other affirmative covenants of
Developer hereunder, or to guarantee such performance; except that (i) the Mortgagee shall have
no right to develop the Property without fully complying with the terms of this Agreement, the
DDA, the Applicable Rules and Entitlement Approvals and (ii) to the extent that any covenant to
be performed by Developer is a condition precedent to the performance of a covenant by City,
the performance thereof shall continue to be a condition precedent to City's performance
hereunder.
Notwithstanding anything to the contrary contained above in this Section, any Mortgagee
shall be subject to all of the terms of the DDA, to the extent applicable pursuant to the DDA to
such Mortgagee.
8. MISCELLANEOUS PROVISIONS.
8.1. Recordation of Agreement. This Agreement and any amendment or cancellation
thereof shall be Recorded by the City Clerk within ten (10) calendar days after City executes this
Agreement, as required by Section 65868.5 of the Government Code. If the Parties to this
Agreement amend or cancel this Agreement as provided for herein and in Government Code
Section 65868, or if City terminates or modifies this Agreement as provided for herein and in
Government Code Section 65865.1 for failure of Developer to comply in good faith with the
terms or conditions of this Agreement, the City Clerk shall have notice of such action Recorded.
8.2. Entire Agreement. This Agreement, the DDA and the Other Agreements set forth
and contain the entire understanding and agreement of the Parties with respect to the matters set
forth herein, and there are no oral or written representations, understandings or ancillary
covenants, undertakings or agreements which are not contained or expressly referred to herein.
No testimony or evidence of any such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret or determine the terms or
conditions of this Agreement.
8.3. Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not rendered impractical to perform
taking into consideration the purposes of this Agreement.
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8.4. Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the internal laws of the State of
California without reference to choice of law or conflicts of law provisions. This Agreement
shall be construed as a whole according to its fair language and common meaning to achieve the
objectives and purposes of the Parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting Party shall not be employed in interpreting
this Agreement, all Parties having been represented by counsel in the negotiation and preparation
hereof. The decision of the City Council shall be final, subject only to judicial review pursuant
to California Code of Civil Procedure Section 1094.5(b).
8.5. Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
8.6. Construction.
8.6.1 References to Sections, Clauses and Exhibits. Unless otherwise indicated,
references in this Agreement to sections, clauses and exhibits are to the same contained in or
attached to this Agreement and all exhibits referenced in this Agreement are incorporated in this
Agreement by this reference as though fully set forth in this Section.
8.6.2 Singular and Plural. As used herein, the singular of any word includes the
plural and vice versa.
8.6.3 Includes and Including. As used in this Agreement the words "include"
and "including" mean, respectively, "include, without limitation" and "including, without
limitation".
8.7. Time of Essence. Subject to the following sentence, time is of the essence in the
performance of each provision of this Agreement. Whenever action must be taken (including the
giving of notice or the delivery of documents) under this Agreement during a certain period of
time or by a particular date that ends or occurs on a non -Business Day, then such period or date
shall be extended until the immediately following Business Day.
8.8. Waiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights
upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and
demand strict compliance by the other Party with the terms of this Agreement thereafter.
8.9. No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the City and its successors and assigns and Developer and its
Successors In Interest. No other person shall have any right of action based upon any provision
of this Agreement.
8.10. Attorneys' Fees. If any Party to this Agreement institutes any action, suit,
counterclaim or other proceeding for any relief against another Party, declaratory or otherwise
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(collectively an "Action"), to enforce the terms hereof or to declare rights hereunder or with
respect to any inaccuracies or material omissions in connection with any of the covenants,
representations, warranties or obligations on the part of the other Party to this Agreement, then
the Prevailing Party in such Action shall be entitled to have and recover of and from the other
Party all costs and expenses of the Action, including (a) the Prevailing Party's reasonable
attorneys' fees (which, if the Prevailing Party is the City, shall be payable at the actual
contractual hourly rate for the City's litigation counsel at the time the fees were incurred, and
which with respect to both the City and the Developer shall in no event be more than $200 per
hour), and (b) costs actually incurred in bringing and prosecuting such Action and/or enforcing
any judgment, order, ruling or award (collectively, a "Decision") granted therein, all of which
shall be deemed to have accrued on the commencement of such Action and shall be paid whether
or not such Action is prosecuted to a Decision. Any Decision entered in any final judgment shall
contain a specific provision providing for the recovery of all costs and expenses of suit, including
reasonable attorneys' fees and expert fees and costs (collectively "Costs") incurred in enforcing,
perfecting and executing such judgment. For the purposes of this Section, Costs shall include in
addition to Costs incurred in prosecution or defense of the underlying action, reasonable
attorneys' fees, costs, expenses and expert fees and costs incurred in the following: (a) post
judgment motions and collection actions; (b) contempt proceedings; (c) garnishment, levy,
debtor and third -party examinations; (d) discovery; (e) bankruptcy litigation; and (f) appeals of
any order or judgment. "Prevailing Party" within the meaning of this Section 8.10 includes a
Party who agrees to dismiss an Action in consideration for the other Party's payment of the
amounts allegedly due or performance of the covenants allegedly breached, or obtains
substantially the relief sought by such Party.
8.11. Force Maj eure.
8.11.1 "Force Majeure Delay" shall mean the occurrence of any of the following
events when such event is beyond the control of the claiming Party and such Party's contractors
and consultants and is not due to an act or omission of such Party or any consultant, contractor or
other Person for whom such Party may be contractually or legally responsible, which directly,
materially and adversely affects the ability of (1) the claiming Party to meet its non -monetary
obligations under this Agreement, including the deadlines imposed by the Schedule of
Performance, or (2) 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 including the presence of Hazardous Materials;
(c) Casualty. Fire, earthquake, or other casualty, in each case only if
causing material physical destruction or damage on the. Property;
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(d) Liti ag tion. Any lawsuit seeking to restrain, enjoin, challenge or
delay any issuance of any Entitlement Approval or seeking to restrain, enjoin, challenge, or delay
construction of the Project which is defended by the First Party;
(e) Weather. Unusually severe weather conditions not reasonably
anticipatable for the City of Tustin, based upon U.S. Weather Bureau climatological reports for
the months included plus a report indicating average precipitation, temperature, etc. for the last
ten (10) years from the nearest reporting station.
8.11.2 Limitation. The term "Force Majeure Delay" shall be limited to the
matters listed in Section 8.11.1 and 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 Approval or Development Permit, license,
consent, authorization or other permit or approval which is necessary for the development of the
Project, except for any such matter resulting from a lawsuit as described in Section 8.11.1(d);
(b) Foreseeable Changes in Governmental Requirements. Any change
in Government Requirements which was proposed or was otherwise reasonably foreseeable at
the Effective Date;
(c) Failure to Perform Obligations. Failure of Developer to perform
any obligation to be performed by Developer as the result of adverse changes in the financial
condition of Developer or any other Person;
(d) Failure to Provide Financial Security. Failure of Developer to
provide financial security required by this Agreement when due or to submit evidence of
financing of the Project or to perform any obligation to be performed by Developer hereunder as
the result of adverse changes in market conditions;
(e) Failure to Submit Required Documentation. Failure to submit
documentation as and when required by this Agreement;
(f) Failure to Submit Entitlement Applications. Failure to timely
submit applications for any Entitlement Approval or Development Permit required for
construction of the Improvements or development of the Project on the Property when required
pursuant to the Schedule of Performance; and
(g) Failure to Execute Documents. Failure of the First Party to
execute documents; and
(h) Other Matters. All other matters not caused by the Second Party
and not listed in Section 18.11.1.
8.11.3 If any Party (the "First Party") believes that an extension of time is due to
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Force Majeure Delay, it shall notify the other Party (the "Second Party") in writing within ninety
(90) calendar days from the date upon which the 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 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 granted or denied
in the Second Party's reasonable discretion. If the First Party fails to notify the Second Party in
writing of its request for a given Force Majeure Delay within the ninety (90) calendar days
specified above, there shall be no extension for such Force Majeure Delay.
8.11.4 Extension Limitation. Time periods for performance of any obligations
under this Agreement may be extended for Force Majeure, except that in no event, shall the
Term of this Agreement be extended by an event of Force Majeure Delay beyond that set forth in
Section 2.3.
8.12. Successors. The burdens of this Agreement shall be binding upon, and the
benefits of this Agreement shall inure to, the City and its successors and assigns and Developer
and its Successors in Interest. All provisions of this Agreement shall be enforceable as equitable
servitudes and constitute covenants running with the land. Each covenant to do or refrain from
doing some act hereunder with regard to development of the Property: (a) is for the benefit of
and is a burden upon every portion of the Property; (b) runs with the Property and each portion
thereof; and (c) is binding upon City and its successors and assigns and upon Developer and each
Successor in Interest during ownership of the Property or any portion thereof and for such longer
period as such Person may have liability hereunder. Notwithstanding the foregoing, upon
acquisition of the Property or any portion thereof by the City pursuant to exercise of the Right of
Purchase or Right of Reversion (each as defined in the DDA) or action in lieu thereof pursuant to
the DDA, the City shall have the right in its sole discretion to terminate this Agreement as to the
portion of the Property so acquired and the Agreement shall remain binding, in accordance with
its terms, upon the remainder of the Property. In the event that the City repurchases or revests all
or any portion of the Property pursuant to exercise of the Right of Purchase or Right of
Reversion, such acquisition shall include all Entitlement Approvals 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 to the respective Repurchased Property or the
Reacquired Property (each as defined in the DDA), as applicable, as shown in the Approved
Plans or, if then Recorded, established pursuant to any Recorded Condominium Plan.
8.13. Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the Parties
had executed the same instrument.
8.14. Jurisdiction and Venue. Any action at law or in equity arising under this
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Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining
the validity of any provision of this Agreement shall be filed and tried in the Superior Court of
the County of Orange, State of California, or the United States District Court for the Central
District of California, Santa Ana Division, and the Parties hereto waive all provisions of law
providing for the filing, removal or change of venue to any other court.
8.15. Project as a Private Undertaking. It is specifically understood and agreed by and
between the Parties hereto that the development of the Project is a private development, that
neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and Developer with respect to this Agreement is
that of a government entity regulating the development of private property and the developer of
such property.
8.16. Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either Party at any time, the other Party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or Record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement.
8.17. Estoppel Certificate. Any Party hereunder, may at any time, deliver a written
notice to the other arty requesting such Party to certify in writing that, to the best knowledge of
the certifying Party: (a) this Agreement is in full force and effect and a binding obligation of the
Party; (b) this Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the date and nature of the amendments to this Agreement, and, in each
case, that the Agreement remains in full force and effect (including as amended or modified if
applicable), and a continuing binding obligation of the Party; and (c) the requesting Party is not
in default in performance of its obligations set forth in the Agreement, or if the Party is in
default, provide a description of the nature of such default(s). A Party, receiving a request
hereunder shall execute and return such certificate within thirty (30) calendar days following
receipt thereof. The party to whom such certificate is addressed, including any third party or
Mortgagee, shalt be entitled to rely on the certificate. Developer shall pay to City all costs
incurred by City in connection with the issuance of estoppel certificates.
8.18. Authority to Execute. The person or persons executing this Agreement on behalf
of each Party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of such Party and warrants and represents that he or she/they has/have the
authority to bind such Party to the performance of its obligations hereunder.
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8.19. Non -liability of City Officials and City Employ. No elected or appointed
official, representative, employee, agent, consultant, legal counsel or employee of the City shall
be personally liable to Developer for any amount which may become due to Developer under the
terms of this Agreement.
8.20. No Merger. As of the Effective Date, the Property is owned in fee by the City,
and portions of the Property may continue to be owned in fee by the City during the Term or
may be conveyed by the City to one or more Developers and subsequently reconveyed to the
City during the Term. Except as expressly set forth below, there shall be no merger of any
rights, interests or estates created by this Agreement as a result of the ownership by the City of
all or any portion of the Property and no merger shall occur with respect to any portion of the
Property unless and until the City and all persons and entities at the time having a legal and/or
equitable ownership interest in such portion of the Property shall join in a written instrument
affecting such merger and shall duly Record the same. Notwithstanding the foregoing, if the
City repurchases or revests any portion of the Property as a result of its exercise of the Right of
Purchase or Right of Reversion under the DDA, the City shall have the right, in its sole
discretion, to merge its interests under this Agreement, to terminate this Agreement as to the
Property so repurchased or revested, to modify the provisions of this Agreement related to the
Repurchased Property or the Reacquired Property, as applicable, or to take other actions
affecting this Agreement or the rights of the City in and to such Repurchased Property or
Reacquired Property, as applicable, without the approval of any other person or entity.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day
and year set forth below.
ATTEST:
Erica Rabe, City Clerk
APPROVED AS TO FORM
Office of the City Attorney
David E. Kendig, Esq.
"City"
City of Tustin, California
, Mayor
"Developer"
CalAtlantic Group, Inc., a Delaware Corporation
Name:
Title: Division President
Name:
Title: Chief Operating Officer/Region
President/VP Real Estate Counsel
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who 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 , 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
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(Seal)
S-2 City of Tustin/CalAtlantic Group, Inc.
Development Agreement
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who 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 , 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
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(Seal)
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ACKNOWLEDGMENT ,
A notary public or other officer completing this certificate verifies only the identity of the individual
who 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
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)
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EXHIBIT "A"
TO DEVELOPMENT AGREEMENT
Legal Description of Property
Portions of LOT 19 and Portions of Lettered Lots of Tract 17404
as shown on Exhibit `B"
Portions of APN 430-381-18
[To be replaced prior to execution with legal description based on final recorded map
no. 18125 or if not then recorded, with a metes and bounds description of the Property)
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EXHIBIT `B"
TO DEVELOPMENT AGREEMENT
Map showing Property and its location
[see attached]
Tustin CalAltantic Development Agt Parcel EXHIBIT `B"
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9
EXHIBIT "B"
LEGEND:
- - - DEVELOPMENT
PARCEL
11/16/2017
EXHIBIT "C"
TO DEVELOPMENT AGREEMENT
PUBLIC BENEFIT IMPROVEMENTS
Developer shall provide the following as additional Public Benefit:
1. Developer shall design and construct the following in accordance with the
requirements of the applicable conditions of approval and at no cost to the City and with respect
to each of the areas described below, Developer shall submit legal descriptions and sketches
prepared by a California Licensed Civil Engineer or California Licensed Land Surveyor, current
Title Report, applicable back up documents, and plan check deposit to the City Public Works
Department for review and approval.
a. Prior to issuance of a Model Building permit, the Developer shall design
parkway landscape and irrigation system adjacent to the project along Tustin Ranch Road,
Victory Road, Park Avenue and Moffett Drive.
b. The Developer shall modify traffic striping along Victory Road to
accommodate the new project entry and shall construct the same in accordance with the Schedule
of Performance set forth in the DDA.
C. Developer shall construct the Publicly Accessible Common Area
Improvements upon the Publicly Accessible Common Area in accordance with the Schedule of
Performance set forth in the DDA.
2. Developer shall dedicate the following easements to the City of Tustin, in the
locations and in accordance with the terms set forth in the Entitlement Approvals and the
Tentative Tract Map (TTM) 18125:
a. Easements for emergency vehicle access and public services ingress and
egress purposes over the private streets and driveways, at no cost to the City;
b. Public access and maintenance easements for sidewalk along Victory
Road, Park Avenue, Tustin Ranch Road and Moffett Drive, at no cost to the City; and
C. A perpetual easement at no cost to the City for the benefit of the City and
the public providing public pedestrian and vehicular access in, on, over and across the Publicly
Accessible Common Area in the locations depicted on Exhibit "E", Schedule "2" in order that
the Publicly Accessible Common Area and the Publicly Accessible Common Area
Improvements are made available to the public.
3. Developer shall satisfy dedication and/or reservation requirements as applicable,
including, but not limited to, dedication in fee title of all required street rights-of-way; dedication
of all required flood control right-of-way easements; and dedication of vehicular access rights,
sewer easements, and water easements defined and approved as to specific locations by the City
Engineer (at no cost to the City) and/or other agencies.
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4. Developer shall release and relinquish to the City of Tustin all vehicular access
rights along Victory Road, Park Avenue, Moffett Drive and Tustin Ranch Road, except at
approved access locations and street intersections, at no cost to the City.
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EXHIBIT "D"
TO DEVELOPMENT AGREEMENT
MAXIMUM TAX BURDEN SCHEDULE
(BASE YEAR)
Maximum Special Taxes for Developed Property
For Fiscal Year 2018-19
Community Facilities District No. 2018-1
Land Use
Class
Land Use
Fiscal Year 2018-19
Maximum Special Tax
1
FLATS (>= 2,500 SF)
$2,416 PER DWELLING UNIT
2
FLATS (2,000 - 2,499 SF)
$2,267 PER DWELLING UNIT
3
FLATS (1,500 - 1,999 SF)
$1,889 PER DWELLING UNIT
4
FLATS (< 1,500 SF)
$1,809 PER DWELLING UNIT
5
SFD (>= 2,800 SF)
$2,717 PER DWELLING UNIT
6
SFD (2,500 - 2,799 SF)
$2,585 PER DWELLING UNIT
7
SFD. (2,200 - 2,499 SF)
$2,240 PER DWELLING UNIT
8
SFD (< 2,200 SF)
$2,177 PER DWELLING UNIT
9
TOWNHOMES (>= 2,125 SF)
$1,852 PER DWELLING UNIT
10
TOWNHOMES (1,875 - 2,124 SF)
$1,690 PER DWELLING UNIT
11
TOWNHOMES (1,625 - 1,874 SF)
$1,617 PER DWELLING UNIT
12
TOWNHOMES (< 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
shall be increased annually by the greater of the change in the Consumer Price Index 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.
"Consumer Price Index" means, for each Fiscal Year, the "All items in Los Angeles -Riverside -
Orange County, CA, all urban consumers, not seasonally adjusted" index published by the U.S.
Bureau of Labor Statistics (Series ID: CUURA421 SAO), 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.
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EXHIBIT "E"
FORM OF PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENT
[see attached]
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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, California 92780
Space Above This Line Reserved for Recorder's Use
PUBLIC ACCESS COVENANT
AND DECLARATION OF EASEMENT
THIS PUBLIC ACCESS COVENANT AND DECLARATION OF
EASEMENT ("Covenant") is made this day of , 20 by
("Developer'), in favor of the City of Tustin ("City") and. for the
benefit of its residents and the public at large.
A. Concurrently with the recording of this Covenant in the Official Records
of Orange County California ("Official Records"), City has conveyed to Developer that
certain real property depicted on Schedule "1" attached hereto (the "Property") and
Developer intends to develop the Property with two hundred eighteen (218) residential
housing units (the "Project") together with such other improvements, including private
streets and sidewalks (the "Improvements"), as further described in (1) that certain
statutory Development Agreement between City and Developer dated as of
and Recorded on as Instrument No.
in the Official Records and (2) that certain Disposition and
Development Agreement for Disposition Parcel 6B between Developer and City dated as
of , a Memorandum of which was recorded in the Official Records
immediately prior to recordation of this Covenant.
B. The Project will be developed in several phases pursuant to condominium
maps and plans approved by the State of California Bureau of Real Estate creating the
individual residential housing units and Improvements (each, a "Condominium Plan",
and collectively, the "Condominium Plans"), which Condominium Plans shall be
subject to the approval by the City with respect to (1) conformity with the approved plans
for the Project and (2) confirmation that the plans show an accurate depiction of the
Publicly Accessible Common Area, and shall subsequently be recorded in the Official
Records. Condominium Plans for individual residential housing units and improvements
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may be recorded in phases and the portion of the Property against which each
Condominium Plan is recorded is referred to herein as a "Phase."
C. As partial consideration for the conveyance of the Property by the City,
Developer has agreed to provide to the City and its residents and the public at large
certain public access covenants and easements over the portions of the Property generally
depicted on the map of Publicly Accessible Common Area attached hereto as Schedule
"2", as the same shall, subsequent to the execution of this Covenant, be granted by and
more fully depicted and described on the Condominium Plans.
D. This Covenant is intended to preserve and maintain the right to public
access in, over, along, though, upon and across the Publicly Accessible Common Area
depicted upon Schedule "2", subject to the terms and conditions herein, until a final
Condominium Plan dedicating and memorializing the Public Access Easement described
and depicted herein is recorded in the Official Records for each and every Phase of the
Project.
NOW THEREFORE, Developer hereby covenants, and Developer and City
hereby agree, as follows:
1. Developer hereby grants and conveys to the City, for the benefit of the
City, its successors and assigns, City residents and the public at large, a non-exclusive
easement and right-of-way for public access in, over, along, through, upon and across
that certain real property situated in the County of Orange, State of California, generally
described in Schedule "1" and as specifically depicted in Schedule "2", each of which are
attached hereto and by this reference incorporated herein ("Public Access Easement");
provided, however, that public access to the Public Access Easement may be prohibited
by Developer in areas under construction on the Property during the course of such
construction.
2. The Public Access Easement granted hereby shall automatically terminate
as to each Phase upon recordation of a Condominium Plan for such Phase dedicating and
memorializing the easements described and depicted herein in form and substance
approved by the. City. Upon approval of the respective Condominium Plan for a
particular Phase, the City Manager, or his or her designee, shall execute the Partial
Termination of Public Access Covenant and Easement form attached hereto as Schedule
"3" ("Partial Termination"), which shall be recorded concurrently with the recordation
of the Condominium Plan for the respective Phase, terminating this Covenant with
respect to the Phase of the Condominium Plan then recorded. The termination of this
Covenant for the final Phase of the Project shall be in the form provided in Schedule "3"
for the final termination and upon recordation of such Final Termination, this Covenant
shall automatically terminate.
3. This Covenant shall be binding upon the Developer and its successors and
assigns and shall run with the Property for the benefit of the City and its successors and
assigns unless and until terminated as set forth herein.
Tustin CalAltantic Development Agt Parcel EXHIBIT "E"
6B (Lot 19) 11-17-2017 Final City Council 2 City of Tustin/CalAtlantic Group, Inc.
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4. The Public Access Easement, or any portion thereof, hereby established
shall exist until such time as terminated by recording of a Partial or Final Termination, as
the case may be, with respect thereto pursuant to the express terms herein provided.
5. This Covenant shall be recorded in the Official Records against the
Property, and is binding on and inures to the benefit of City and Developer, and their
respective successors and permitted assigns.
6. This Covenant may be signed in counterparts, each of which shall be
deemed an original and all of which when taken together shall constitute one instrument.
{signatures on following page}
Tustin CalAltantic Development Agt Parcel EXHIBIT "E"
6B (Lot 19) 11-17-2017 Final City Council 3 City of Tustin/CalAtlantic Group, Inc.
version.docx Development Agreement
IN WITNESS WHEREOF, the Developer and City have executed this Public
Access Covenant and Declaration of Easement on the date first above written.
"Developer"
By: CalAtlantic Group, Inc., a Delaware Corporation
Name:
Title: Division President
Name:
Title: Chief Operating Officer/Region
President/VP Real Estate Counsel
By: City of Tustin, California
By:
Name:
Title:
ATTEST:
Erica Rabe, City Clerk
APPROVED AS TO FORM
Office of the City Attorney
David E. Kendig, Esq.
Tustin CalAltantic Development Agt Parcel EXHIBIT "E"
613 (Lot 19) 11-17-2017 Final City Council 4 City of Tustin/CalAtlantic Group, Inc.
version.docx Development Agreement
CERTIFICATE OF ACCEPTANCE OF DEED
(City of Tustin)
This is to certify that the interest in real property conveyed by the PUBLIC
ACCESS COVENANT AND DECLARATION OF EASEMENT dated
from to the
CITY OF TUSTIN, a governmental agency, is hereby accepted by the undersigned
officer on behalf of the CITY OF TUSTIN pursuant to authority conferred by Resolution
No. 95- 39 of the CITY OF TUSTIN adopted on April 3, 1995, and the grantee consents
to recordation thereof by its duly authorized officer.
Dated:
Tustin CalAltantic Development Agt Parcel
6B (Lot 19) 11-17-2017 Final City Council
version.docx
Erica Rabe, City Clerk
EXHIBIT "E" City of Tustin/CalAtlantic Group, Inc.
5 Development Agreement
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who 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 , 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)
Tustin CalAltantic Development Agt Parcel EXHIBIT `B" City of Tustin/CalAtlantic Group, Inc.
613 (Lot 19) 11-17-2017 Final City Council 6 Development Agreement
version.docx
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who 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 , 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.
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)
Tustin CalAltantic Development Agt Parcel EXHIBIT "E" City of Tustin/CalAtlantic Group, Inc.
613 (Lot 19) 11-17-2017 Final City Council 7 Development Agreement
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SCHEDULE "1"
Legal Description of Property
Portions of LOT 19 and Portions of Lettered Lots of Tract 17404
as shown on Exhibit `B"
Portions of APN 430-381-18
[To be replaced prior to execution with legal description based on final recorded map
no. 18125 or if not then recorded, with a metes and bounds description of the Property]
Tustin CalAltantic Development Agt Parcel Schedule "1" to City of Tustin/CalAtlantic Group, Inc.
6B (Lot 19) 11-17-2017 Final City Council EXHIBIT "E" Development Agreement
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SCHEDULE "T'
Description and Depiction of Publicly Accessible Common Area
Tustin CalAltantic Development Agt Parcel
6B (Lot 19) 11-17-2017 Final City Council
version.docx
[Attached]
Schedule "2" to
EXHIBIT "E"
City of Tustin/CalAtlantic Group, Inc.
Development Agreement
SCHEDULE "Y'
Form of Termination of Public Access Covenant and Declaration of Easement
[Attached]
Tustin CalAltantic Development Agt Parcel Schedule "3" to City of Tustin/CalAtlantic Group, Inc.
6B (Lot 19) 11-17-2017 Final City Council EXHIBIT "E" Development Agreement
version.docx
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, California 92780
Space Above This Line Reserved for Recorder's Use
[{FOR ALL BUT FINAL PHASE.} PARTIAL/{FOR FINAL PHASE}: FINAL]
TERMINATION OF PUBLIC ACCESS COVENANT
AND DECLARATION OF EASEMENT
THIS [{FOR ALL BUT FINAL PHASE.} PARTIAL/ (FOR FINAL PHASE): FINAL]
TERMINATION OF PUBLIC ACCESS COVENANT AND DECLARATION OF
EASEMENT ("{PartiaUFinal} Termination") is made this
20°, by the City of Tustin ("City"), in favor of
day of ,
("Developer").
A. On Developer, or its predecessor -in -interest, recorded as
Instrument No. that certain Public Access Covenant and Declaration of
Easement ("Covenant") in the Official Records of Orange County, California ("Official
Records") for the purpose of t granting and conveying to the City, for the benefit of the City, its
successors and assigns, City residents and the public at large, a non-exclusive easement and
right-of-way for public access in, over, along, through, upon and across that certain Property, as
described in the Covenant (the "Public Access Easement"), until such time as the Condominium
Plans for the respective Phases of the Project are recorded reflecting such easement thereon.
B. Pursuant to the terms of the Covenant, the City has now approved, with respect to
conformity with approved plans for the Project only, the Condominium Plan for that portion of
the Property described on Exhibit "A" attached hereto and incorporated herein by this reference
(the "Released Property"). [Addition for the final phase of the Project: The Released Property
is the final Phase of the Project.]
C. All capitalized terms not otherwise defined herein shall have the meaning given to
them in the Covenant.
NOW THEREFORE, the City hereby agrees as follows:
Tustin CalAltantic Development Agt Parcel Schedule "3" to City of Tustin/CalAtlantic Group, Inc.
613 (Lot 19) 11-17-2017 Final City Council EXHIBIT "E" Development Agreement
version.docx 1
1. [Partial/Finall Termination. The Covenant is hereby terminated and shall be of
no further force or effect [{Add for Partial Termination only): with respect to the Released
Property]. The Public Access Easement granted by the Covenant [{Add for Partial Termination
only): with respect to the Released Property) is therefore also released, and the access easement
for the Publicly Accessible Common Area is now and hereafter granted solely pursuant to the
Condominium Plans recorded in the Official Records against the Released Property concurrently
with the recording of this {Partial/Final} Termination.
2. Recordation; Successors and Assigns. This {Partial/Final} Termination shall be
recorded in the Official Records against the Released Property, and is binding on and inures to
the benefit of City and Developer, and their respective successors and permitted assigns.
3. Counterparts. This {Partial/Final} Termination may be signed in counterparts,
each of which shall be deemed an original and all of which when taken together shall constitute
one instrument.
[Signature Page Follows]
Tustin CalAltantic Development Agt Parcel Schedule "3" to City of Tustin/CalAtlantic Group, Inc.
613 (Lot 19) 11-17-2017 Final City Council EXHIBIT "E" Development Agreement
version.docx 2
IN WITNESS WHEREOF, the City and Developer have executed this {Partiad/Final}
Termination of Public Access Covenant and Declaration of Easement on the date first above
written.
"DEVELOPER"
IN
"CITY"
By: City of Tustin, California
By:
Name:
Title:
ATTEST:
By:
City Clerk
APPROVED AS TO FORM
Office of the City Attorney
By:
Name:
Tustin CalAltantic Development Agt Parcel Schedule "3" to City of Tustin/CalAtlantic Group, Inc.
613 (Lot 19) 11-17-2017 Final City Council EXHIBIT "E" Development Agreement
version.docx 3
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who 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
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 andofficial seal.
Signature
(Seal)
Tustin CalAltantic Development Agt Parcel Schedule "3" to City of Tustin/CalAtlantic Group, Inc.
613 (Lot 19) 11-17-2017 Final City Council EXHIBIT "E" Development Agreement
version.docx 4
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who 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 , 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)
Tustin CalAltantic Development Agt Parcel Schedule "T' to City of Tustin/CalAtlantic Group, Inc.
6B (Lot 19) 11-17-2017 Final City Council EXHIBIT "E" Development Agreement
version. docx 5
Tustin CalAltantic Development Agt Parcel
6B (Lot 19) 11-17-2017 Final City Council
version.docx
EXHIBIT "F"
PHASING MAP
[Attached]
EXHIBIT "F" City of Tustin/CalAtlantic Group, Inc.
Development Agreement