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HomeMy WebLinkAbout11 DISPOSITION AND DEVELOPMENT AGREEMENT WITH JHC-AQUISITIONS LLC (JAMBOREE HOUSING)AGENDA REPORT +s� MEETING DATE: NOVEMBER 20, 2018 TO: JEFFREY C. PARKER, CITY MANAGER FROM: ECONOMIC DEVELOPMENT DEPARTMENT Agenda Item 1 1 Reviewed: City Manager SUBJECT: DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) WITH JHC- ACQUISITIONS LLC (AKA JAMBOREE HOUSING CORPORATION) FOR PARCEL 1A SOUTH AT TUSTIN LEGACY SUMMARY: Request for authorization to approve the DDA between JHC-Acquisitions LLC (Developer) and the City for the development of a one hundred fourteen (114) unit affordable housing development: fifty-four (54) affordable rental units for families (Phase 1); and sixty (60) permanent supportive affordable rental units for the homeless (Phase II) on Parcel 1A South. The DDA outlines the terms and conditions under which the City property, approximately 3.55 acres, will be ground lease conveyed and developed by JHC-Acquisitions LLC. Financing for the project is dependent upon multiple sources including tax credits approved by the State. A 55 -year ground lease, referenced in the DDA, must be negotiated prior to conveyance that will be submitted to Council for consideration. RECOMMENDATION: Authorize the City Manager to execute the DDA between the Developer and the City, subject to non -substantive modifications as may be deemed necessary and/or recommended by the City's special real estate counsel or the City Attorney. FISCAL IMPACT: round Leases and Loan The project has two phases. Both Phases must close concurrently for the project (i.e., Phase I and II) to be feasible. For Phase II, the Developer will pay upon close of escrow a ground lease payment of $1,500,000. The City ground lease payment from Phase II (i.e., $1,500,000) will then be loaned to Phase I. The loan on Phase I will be paid over the term of the lease from net cash flow after senior debt obligations and operating expenses are met. The City will not be obligated to loan the project money if both Phases are not financed from third -party sources as described in this Agenda Report. Agenda Report — DDA, Jamboree Housing November 20, 2018 Page 2 Other Developer Obligations The Developer will pay transaction expenses of $150,000 and $458,026 for the Tustin Legacy Backbone Infrastructure Program. CORRELATION TO THE STRATEGIC PLAN: This action correlates to the City's Strategic Plan for Economic and Neighborhood Development (Goal A). BACKGROUND: On April 18, 2018, the City entered into an ENA with the Developer to negotiate the ground lease conveyance and development of an affordable housing project consisting of two phases: Phase I —'54 affordable rental. units for families and Phase II — "60 permanent supportive affordable rental units for the homeless. A portion of the property is owned in fee and a portion is subject to a Lease in Furtherance of Conveyance ("LIFOC") which is owed by the Navy and leased to the City. The Developer is seeking $8.5 million in CaIHFA Mental Health Services Act ("MHSA") Special Needs Housing Program funds and fifty-nine (59) project -based Section 8 vouchers ,from Orange County as part of their financing plan. In order to receive approval,. Orange County -requires the Developer to have site control, which the proposed DDA provides. The City will not enter into a fifty-five (55) year ground lease with the Developer until such time as the Developer has obtained all project financing, received entitlements, and the building permits are ready to be issued. On October. 8, 2018, the Developer submitted their entitlement application to Community Development for approval. It is anticipated the Developer's entitlement application will be considered at a January 2019 Planning Commission meeting. DDA SUMMARY: Project Description The Developer will construct 54 affordable rental units for families and 60 permanent supportive affordable rental units for the homeless with an. average density of approximately thirty-two (32) dwelling units per acre. Amenities include a pool, tot lot, community garden, half -court basketball court and 6,600 square foot community building. Financing Phase The total estimated development cost of Phase I is $22,263,332, excluding land value. Phase I will only proceed upon award by TCAC of the 9% Tax Credits. Agenda Report - DDA, Jamboree Housing November 20, 2018 Page 3 Phase 11 will only proceed upon award of the following: Orange County Community Foundation Loan; Orange County MHSA funds and Section 8.Vouchers; and. TCAC 4% Tax Credits. As previously indicated, Phase II close of escrow must take place before or concurrently with the Phase I close of escrow., PHASE I REVENUE SOURCES Net Investor Equity$16,51.5,599 $9,024,098 - Permanent Loan $3,946,763 Cit of Tustin Loan $1,500,000, Deferred Developer Fee $300,970. TOTAL . $22,263,332 Phase 11 The total estimated development cost of Phase II is $25,347,228, excluding land value. As previously indica ted, the Developer has submitted applications to Orange County for CaIHFA MHSA funding and project -based Section 8 vouchers for Phase 11 °of the development. In January 2019, the Developer will submit a financing application to the Orange County Community Foundation. Orange County will be awarding funding for MHSA and the Section 8 Vouchers in January/February 2019. In March, the Developer will submit applications to the California Tax Credit Allocation Committee ("TCAC') for nine percent (9%) Tax Credits for Phase] and . four percent (4%) Tax Credits for Phase 11. PHASE 11 REVENUE SOURCES Net Investor Equity $9,024,098 - Permanent Loan $5;082,374 Orange Count MHSA $8,590,400 Orange Count CommunityFoundation Loan $1,000;000 Deferred Developer Fee $1,650,356. TOTAL $25,347,228: Construction Schedule If the Developer js successful with their initial application in March 2019, TCAC tax credits are awarded in June 2019. Upon award, the Developer will submit grading and ,construction drawings for the permits to construct the horizontal and vertical improvements and, in accordance with TCAC, they must commence construction within six (6) months. Escrow on the Ground Leases for Phase I and 11 will close when the Developer has all required financing and the City is ready to issue permits. Assuming the Developer is awarded TCAC tax credits in their first submittal, construction will, commence in December 2019, with an . anticip '. completion' `in April 2021. Agenda Report — DDA, Jamboree Housing November 20, 2018 Page 4 The TCAC tax credit applications are highly competitive and the DDA provides the Developer with four (4) opportunities within a two-year time period to secure the tax credits. If the Developer is not successful in the first round, there is another opportunity in July 2019, and two (2) opportunities in 2020, March and July. Once awarded TCAC tax credits, construction commences within 6 months and the Developer anticipates a construction period of sixteen months. ENVIRONMENTAL On January 16, 2001, the City of Tustin certified the program 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 addendums and supplements, is a program EIR under the California Environmental Quality Act (CEQA). The FEIS/EIR, addendums and supplementals considered the potential environmental impacts associated with development on the former MCAS, Tustin. An Environmental Checklist has been prepared and concluded that the proposed 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. DISCUSSION: As proposed, the development will provide managed affordable rental opportunities for families and permanent supportive housing for the homeless through a ground lease, which provides the City with financial flexibility at the end of 55 years. In addition, the Developer has demonstrated the expertise to develop the project. o A�fuFc:h anan D' ctoconomic Development Jerry Craig Deputy Dire c Development Attachments: DDA between the City f-Tusto and JHC-Acquisitions LLC Environmental Analysis Checklist TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT (AFFORDABLE AND PERMANENT SUPPORTIVE HOUSING FOR PORTION OF PARCEL IA SOUTH) by and between CITY OF TUSTIN and JHC-ACQUISITIONS LLC, a California limited liability company DATED: November 20, 2018 TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT (AFFORDABLE AND PERMANENT SUPPORTIVE HOUSING FOR PORTION OF PARCEL IA SOUTH) THIS TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT FOR (AFFORDABLE AND PERMANENT SUPPORTIVE HOUSING FOR PORTION OF PARCEL IA SOUTH) (the "Agreement") is entered into as of November 20, 2018 (the "Effective Date") by and between the CITY OF TUSTIN (as more fully defined in Section 1.4.1, "City") and JHC- ACQUISITIONS LLC, a California limited liability company (as more fully defined in Section 1.4.2, the "Developer"). The City and Developer are sometimes referred to in this Agreement individually as a "Party" and collectively as the "Parties." The Parties agree as follows: 1. Subject and Purpose of Agreement; Parties; Applicable Requirements. 1.1 Background Regarding MCAS Tustin. 1.1.1 Pursuant to the Defense Base Closure and Realignment Act of 1990, (Part A of Title XXIX of Public Law 101-510; 10 U.S.C. Section 2687 Note), as amended (the "Base Closure Law") the Federal Government (defined below) determined to close the Marine Corps Air Station -Tustin ("MCAS Tustin") located substantially in the City of Tustin. In 1992, the City was designated as the Lead Agency or Local Redevelopment Authority for preparation of a reuse plan for WAS Tustin in order to facilitate the closure of WAS Tustin and its reuse in furtherance of the economic development of the City and surrounding region. The WAS Tustin Reuse Plan developed in accordance with this procedure was adopted by the City Council of the City of Tustin (the "City Council") on October 17, 1996 and amended in September, 1998 (the "Reuse Plan"). 1. 1.2 A Final Joint Environmental Impact Statement/Environmental Impact Report for the Disposal and Reuse of WAS Tustin (the "Final EIS/EIR") and Mitigation Monitoring and Reporting Program for the Final EIS/EIR were adopted by the City on January 16, 2001. In March 2001, a Record of Decision was issued by the Department of the Navy (hereinafter, "Navy") approving the Final EIS/EIR and the Reuse Plan. Subsequently, a Supplement to the Final EIR/EIS and an Addendum to the Final EIS/EIR were approved by the City. 1. 1.3 In May 2002, the Navy and the City entered into that certain Agreement between the United States of America and the City of Tustin, California for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated as of May 13, 2002 ("Memorandum of Agreement"), for which a "Short Form Notice of Agreement" was Recorded on May 14, 2002 as Instrument No. 20020404589 pursuant to which the Navy agreed to convey approximately 1,153 acres of WAS Tustin to the City. On May 13, 2002, a total of 977 acres, including portions of the Site (as defined below), were conveyed by the Navy to the City by quitclaim deed in accordance with the provisions of the Memorandum of Agreement. The additional acreage, including portions of the Site, was made subject to a ground lease to the City from the Navy pursuant to a Lease in Furtherance of Conveyance dated May 13, 2002 ("LIFOC"), for which a Short Form Notice of Lease in Furtherance of Conveyance was recorded on May 14, 2002 as Instrument No. 20020404590. The approximately 1,153 acres of WAS Tustin located within the City of Tustin and either conveyed by the Navy to the City or subject to LIFOC between the Navy Tustin Jamboree Parcel IA DDA 1 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) and the City is referred to in this Agreement as "Tustin Legacy." Landlord and the Navy have agreed upon a method of conveyance of the leased acreage as set forth in the Conveyance Agreement and LIFOC. 1. 1.4 On February 3, 2003, the City adopted an ordinance approving the MCAS Tustin Specific Plan/Reuse Plan setting forth the zoning and entitlement framework for future development of Tustin Legacy. Since its initial adoption, the City has approved numerous Specific Plan Amendments. The Specific Plan conforms to and implements the Reuse Plan and the City's General Plan. 1.1.5 The City desires to effectuate development of Tustin Legacy through the sale or lease and development of such property in accordance with applicable federal and local requirements. It is the City's intent that Tustin Legacy shall be developed in accordance with all City requirements, including implementing redevelopment plans, the Reuse Plan and the Specific Plan, including to develop affordable housing and permanent supportive housing at Tustin Legacy. To this end, the City and Jamboree Housing Corporation, a California non-profit public benefit corporation ("Jamboree") a Developer Affiliate entered into an Exclusive Negotiating Agreement dated April 18, 2018 ("ENA"). 1.1.6 In order to further the goals and requirements of Government Code Section 65400 et seq. with respect to assessment of regional housing needs, the City selected Developer to assist the City in effectuating its plans to develop affordable rental housing, including permanent supportive housing, for homeless individuals and families. 1. 1.7 Developer is experienced in furnishing, planning, designing, constructing, and managing affordable housing developments in California and proposes to construct on the Property a high-quality rental housing development serving extremely and very low income and homeless individuals and families, and/or those persons with special needs. 1.1.8 It is contemplated by the Parties that the development of the Project (as defined below) will be comprised of two phases (each, a "Phase") as further described below. 1.2 Description of Site. As of the Effective Date, the City is the owner of approximately 3.55 acres of unimproved real property located within Tustin Legacy ("Site") as legally described on Attachment 2 and depicted on the map attached as Attachment 3 hereto ("Conceptual Site Map"), a portion of which is owned by the City in fee, and a portion of which is subject to a LIFOC: 1.2.1 "Phase I Parcel" consisting of that certain land comprised of approximately 2.52 acres located in the City of Tustin, County of Orange, California comprised of a portion of property referred to in the Reuse Plan as Parcel 27 and in the Navy transfer documents as "I -H-1" and "III -H-13" as depicted on the Conceptual Site Map; and 1.2.2 "Phase II Parcel" consisting of that certain land comprised of approximately 1.03 acres located in the City of Tustin, County of Orange, California comprised of a portion of property referred to in the Reuse Plan as Parcel 27 and in the Navy transfer documents as I -H-1" and "III -H-13" as depicted on the Conceptual Site Map. Tustin Jamboree Parcel IA DDA 2 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Developer acknowledges that portions of the Site are subject to the LIFOC as depicted on the Conceptual Site Map ("LIFOC Areas") and unless the City acquires fee title to all of the LIFOC Areas within a Phase prior to the Closing Date for such Phase, that the ground lease conveyance under this Agreement of the LIFOC Areas comprising any portion of the acquired Phase shall be in the form of a sublease of the City's lessee's interest under the LIFOC and subject in all respects to the terms and conditions of the LIFOC and to the additional matters set forth below. Pursuant to Section 5.1 of the LIFOC, the City hereby represents to Developer that the City is authorized to sublease the LIFOC Areas without prior approval of the Navy provided that the sublease (i) incorporates the terms of the LIFOC, (ii) does not include provisions inconsistent with the LIFOC, and (iii) does not involve the use of hazardous or toxic materials. Developer agrees to take possession of the LIFOC Areas during the term of the LIFOC subject to all terms and conditions of the LIFOC and the sublease. 1.3 Purpose of Agreement. 1.3.1 The purpose of this Agreement is (a) to effectuate the Reuse Plan and the Specific Plan, in accordance with the terms and conditions set forth therein and in the Memorandum of Agreement and the Federal Deed, through disposition and development of portions of Tustin Legacy as further described in this Agreement and (b) to provide for the ground lease of the Property (as defined below), in one or more Phases, and upon Close of Escrow, for the maintenance and use of the Property and certain related improvements by Developer and for the construction of the Project by Developer on the Property. 1.3.2 This Agreement further provides for development by Developer of the "Project" to consist of construction and installation of the following Improvements: (a) with the first Phase to be constructed, construction of the Horizontal Improvements to include public and private infrastructure improvements, parking, shared entry drive, Common Area and amenities for each Phase, and (b) the Vertical Improvements including the following: (a) construction of fifty four (54) rental housing Units for Lower Income Households, Very Low Income Households, and Extremely Low Income Households ("Phase I") on the Phase I Parcel, as depicted on the Conceptual Site Map and as will be further described in the Scope of Development; and (b) construction of sixty (60) rental housing Units for Extremely Low Income Households as permanent supportive housing for the homeless ("Phase IP') on the Phase 11 Parcel as depicted on the Conceptual Site Map and as will be further described in the Scope of Development. The Vertical Improvements and Horizontal Improvements for each Phase shall include a complete accompanying set of shared amenities, all as shall be further depicted on the Scope of Development. The Vertical Improvements and Horizontal Improvements for the Phases (collectively, the "Improvements") shall be designed and constructed in a manner consistent with the Specific Plan, the Reuse Plan, the Approved Plans, the Entitlements and all applicable Governmental Requirements. Tustin Jamboree Parcel IA DDA 3 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 1.3.3 The disposition of the Property pursuant to ground lease, the development and Completion of the Project pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the citizens of the City and the health, safety and welfare of its residents, and are in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. 1.3.4 Phase I shall proceed only upon award by the California Tax Credit Allocation Committee ("TCAC") of nine percent (9%) Tax Credits in the amount set forth in the Financing Plan and satisfaction of various other conditions set forth in this Agreement. Phase II shall proceed only upon award of an Orange County Community Foundation Loan, award of Orange County Mental Health Services Act Special Needs Housing Program funds, Project -Based Section 8 Vouchers, award by TCAC of four percent (4%) Tax Credits in the amount set forth in the Financing Plan and satisfaction of various other conditions set forth in this Agreement. The Close of Escrow with respect to the Phase I Property (as defined below) may take place concurrently with or following the Close of Escrow for the Phase 11 Property (as defined below), but may not take place prior to the Phase 11 Close of Escrow. 1.4 Parties to the Agreement. 1.4.1 Com. The City is a municipal corporation of the State of California. The City has been recognized as the Local Redevelopment Authority by the Office of the Secretary of Defense for the former Marine Corps Air Station, Tustin, for purposes of the Base Closure Law. "City" as used in this Agreement shall mean the City of Tustin and each assignee or successor to the City's rights, powers and responsibilities. The City Council shall have the right, in its sole and absolute discretion, to assign its rights and obligations to any agency or instrumentality of the City, including the Tustin Public Financing Authority, provided, however, that in the event the City exercises such right to assign any of its proprietary obligations, such assignment shall not relieve the City of any responsibility for its governmental obligations, if any, under this Agreement. The principal office of the City and mailing address is 300 Centennial Way, Tustin, California 92780. 1.4.2 Developer. (a) The Developer is JHC-ACQUISITIONS LLC, a California limited liability company and its City approved successors and assigns. The principal office of Developer and mailing address is 17701 Cowan Ave., Suite 200, Irvine, CA 92614-6840. Jamboree is the Manager ("Manager") and the Controlling Person of JHC-ACQUISITIONS LLC. (b) At Close of Escrow for each Phase, JHC-ACQUISITIONS LLC will assign its rights under this Agreement with respect to each Phase to a Developer Affiliate, which shall be a partnership in which the sole managing general partner is either Jamboree or is a limited liability company of which Jamboree is the sole member ("General Partner"), and for which Jamboree is the Controlling Person, either directly, or indirectly through the limited liability company in which Jamboree is the sole member, and to which a Qualified Tax Credit Investor will be admitted as a limited partner and to which an affiliate of the Qualified Tax Credit Investor may be admitted as a special limited partner and to which partnership will be allocated Tax Credits in consideration of a capital contribution that will be used by Developer to fund a portion of the Tustin Jamboree Parcel IA DDA 4 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Development Costs of the Project. The General Partner and Qualified Tax Credit Investor are referred to as the "Developer Partners." 1.4.3 Relationship of City to Developer. It is hereby acknowledged that the relationship of the City to Developer is neither that of a partnership nor that of a joint venture. Notwithstanding any provision of this Agreement, Developer is not, and shall not be deemed to be, the agent of the City for any purpose, and shall not have the power or the authority to bind the City to any contractual or other obligation. Prior to Close of Escrow for a Phase, Developer may only characterize itself to third parties as the prospective lessee and/or developer of the portion of the Site comprising such Phase. Developer shall not at any time hold itself out to the City or to any other third party as an agent of the City, and shall not, by any act or omission, mislead any third party into believing, or allow any third party to continue in the mistaken belief, that Developer is an agent of the City or has the power or authority to bind the City to any contractual or other obligation. 1.5 Federal Requirements Applicable to Tustin Legacy. 1.5.1 The Parties acknowledge and agree that this Agreement is entered into as part of an economic development conveyance of Tustin Legacy to the City pursuant to the Base Closure Law, the Memorandum of Agreement and the terms and conditions of the Federal Deed, including the Environmental Restriction pursuant to California Civil Code Section 1471 contained therein. Notwithstanding any provision to the contrary contained in this Agreement, this Agreement is and shall be subject to the terms and conditions of the Memorandum of Agreement and the Federal Deed and the rights, obligations and remedies of the Federal Government thereunder, and nothing contained in this Agreement shall be construed in a manner that is inconsistent with the rights, obligations and remedies of the Federal Government thereunder. 1.5.2 Notwithstanding anything in this Agreement to the contrary, if any provision of this Agreement contradicts, modifies or in any way changes the terms of the Memorandum of Agreement or the Federal Deed, the terms of the Memorandum of Agreement and Federal Deed shall prevail and govern. 1.6 Local Requirements Applicable to Tustin Legacy. This Agreement is subject to all Governmental Requirements, including the General Plan, the Specific Plan, the Tustin City Code, the Reuse Plan and any redevelopment plan applicable to the Site. 1.7 Not a Development Agreement. This Agreement is not a development agreement as provided in Government Code Section 65864 and, as further set forth in Section 8.3, is not a grant of any entitlement, permit, land use approval, or vested right in favor of Developer, the Project or the Property. The City shall use good faith efforts, within applicable legal constraints and consistent with applicable City policies, to take such actions as may be necessary or appropriate to effectuate and carry out this Agreement in a timely and commercially reasonable manner. Tustin Jamboree Parcel IA DDA 5 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 1.8 City Costs and Independent Contract Consideration. 1.8.1 Independent Contract Consideration. In consideration of and concurrently with the execution of this Agreement, Developer shall pay to the City the sum of One Hundred Dollars ($100.00) as "independent option consideration" (the "Independent Contract Consideration"). The Independent Contract Consideration has been bargained for and agreed to as separate and independent consideration for Developer's rights granted in this Agreement and for the City's execution and delivery of this Agreement. The Independent Contract Consideration shall be deemed fully earned by the City upon receipt, and shall be considered non-refundable to Developer in all events. 1.8.2 Total City Transaction Expenses. At each Close of Escrow, Developer shall reimburse the City for (a) all City Expenses incurred by the City prior to the Effective Date pursuant to the terms of the ENA, and (b) all DDA Transaction Expenses incurred by the City (collectively with the City Expenses, "Total City Transaction Expenses") in an amount equal to Seventy -Five Thousand Dollars ($75,000) per Phase. 1.8.3 Exclusions from Total City Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, the City and Developer hereby acknowledge and agree that the City Transaction Expenses do not include: (a) any fees or deposits required of Developer for processing entitlement applications; (b) any fees or costs for complying with provisions of CEQA or its State CEQA implementing regulations or other matters identified in Article 8; (c) any costs to review or approve any applications or submittals by Developer to the City in connection with the Project; (d) the Development Costs, Project Fair Share Contribution or any other development impact fees, exactions or other costs imposed as conditions of approval with respect to the Entitlements or pursuant to the Other Agreements; (e) fees incurred for City estoppels, if any, or (f) any other matters in this Agreement that expressly require Developer to pay, at its sole cost, for the expenses in connection with such matters, other than as expressly set forth in this Section 1.8. Notwithstanding that Developer is not obligated to pay any Total City Transaction Expenses in excess of the amounts set forth in Section 1.8.2, this Section 1.8 shall not diminish or limit Developer's obligation to pay for any of costs in the preceding sentence. 1.9 Definitions; Attachments. 1.9.1 Capitalized terms used in this Agreement, including in the Attachments attached hereto, unless otherwise defined in this Agreement, shall have the respective meanings specified in the Glossary of Defined Terms attached hereto as Attachment 1. Unless otherwise indicated, references in this Agreement to sections, paragraphs, clauses, exhibits, attachments and schedules are to the same contained in or attached to this Agreement and all attachments and schedules referenced in this Agreement are incorporated in this Agreement by this reference as though fully set forth in this Section. 1.9.2 Wherever used in this Agreement, the term "substantially in the form and substance of shall mean that the referenced document, when compared to the previously approved form of document, is consistent in all material respects, and none of the modifications in the referenced document diminish a party's rights or increase such party's obligations thereunder, as determined by the party for whose benefit the condition is written, in its sole discretion. Tustin Jamboree Parcel IA DDA 6 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 2. Prohibition Against Transfers and Transfer of Control. Any purported Transfer that does not comply with the requirements of Article 2 shall, at the election of the City, be null and void and such Transfer shall be a Material Default under this Agreement as of the date of the Transfer by the violating party, subject to the provisions of Section 14.2.3, which date shall not be extended by Force Majeure Delay. 2.1 Importance of Developer Qualifications. Developer represents and agrees that its undertakings pursuant to this Agreement are for the purpose of development of the Project and not for speculation in land holding. Developer further recognizes that the qualifications and identity of Developer are of particular concern to the City and community in light of the following: (a) The importance of the development of the Property and Tustin Legacy to the general welfare of the community; (b) The fact that a Transfer of Control is for practical purposes a transfer of rights and obligations under this Agreement and/or a transfer or disposition of all or a portion of the leasehold interest in the Property held by Developer. (c) That it is because of the qualifications and identity of Developer, its Key Employees and Developer's Controlling Persons that the City is entering into the Agreement with Developer. The Ground Leases shall contain restrictions on Transfer and Transfer of Control by Developer, including with respect to Transfer or Transfers of Control to Mortgagees, consistent with restrictions generally imposed by the City in disposition and development agreements at Tustin Legacy. 2.2 Transfers and Transfers of Control. 2.2.1 Restrictions on Transfers. For the reasons set forth in Section 2. 1, Developer, on behalf of itself and its Successor Lessees, acknowledges and agrees that except as set forth in Section 2.2.2 with respect to Permitted Transfers, there shall be no Transfer or Transfer of Control by Developer and any such Transfer or Transfer of Control shall be invalid and shall have no force or effect unless the City shall have provided its prior written consent thereto as set forth in this Agreement, which may be granted or withheld in the City's sole and absolute discretion, or unless otherwise permitted pursuant to the terms of the Ground Leases, to the extent then effective and applicable. 2.2.2 Permitted Transfers. Subject to the requirements of this Section 2.2.2 and Section 4.6, the following Transfers and Transfers of Control of Developer are "Permitted Transfers" under the terms of this Agreement and shall not be subject to the City's prior written consent; provided, however, that Developer shall promptly notify the City in writing of any Permitted Transfer and the Person(s) to whom such Transfer or Transfer of Control is made and shall provide such additional information as the City may reasonably request in connection with such Transfer or Transfer of Control: Tustin Jamboree Parcel IA DDA 7 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (a) At Close of Escrow for a Phase, any Transfer to a Developer Affiliate of that Phase; (b) At Close of Escrow, any Transfer of Control to a Developer Affiliate; provided that Jamboree is the Controlling Person of the Developer Affiliate that is the Transferee or the Controlling Person of the sole managing general partner of the Developer Affiliate that is the Transferee (but with any change in the managing general partner of the Developer Affiliate being a Transfer of Control for which City consent shall be required pursuant to Section 2.2.1); (c) At Close of Escrow, admission of the Qualified Tax Credit Investor, approved by the City pursuant to Section 2.2.6, to Developer. 2.2.3 Provisions Applicable to all Transfers. Prior to any Transfer or any Transfer of Control, Developer shall comply with the requirements of this Section 2.2.3. (a) Developer shall provide to the City at least twenty (20) Business Days prior to the date of any proposed Transfer or Transfer of Control: (i) the name of the proposed Transferee or new Controlling Person, as applicable; (ii) all of the material proposed terms of the Transfer or Transfer of Control; (iii) in the case of a Transfer, current audited financial statements of the proposed Transferee (or financial statements certified by an officer or authorized representative of the proposed Transferee, if the proposed Transferee does not have audited financial statements); (iv) in the case of a Transfer of Control, current audited financial statements of the proposed new Controlling Person (or financial statements certified by an officer or authorized representative of the proposed new Controlling Person, if the proposed new Controlling Person does not have audited financial statements); (v) the names of all Persons who Control the proposed Transferee or the new Controlling Person, as applicable; (vi) in the case of Transfer, a certificate by management of the proposed Transferee describing other real estate projects developed by, leased by, or sold by the proposed Transferee in California over the preceding five (5) year period, and the dates of involvement by the proposed Transferee with such projects and the success of the projects, and such certificate shall be made by the manager, president or other Person with appropriate authority from the proposed Transferee to do so; (vii) in the case of Transfer of Control, a certificate by management of the proposed new Controlling Person describing other real estate projects developed by, leased by, or sold by the proposed new Controlling Person in California over the preceding five (5) year period, and the dates of involvement by the proposed new Controlling Person with such projects and the success of the projects, and such certificate shall be made by the manager, president or other Person with appropriate authority from the proposed new Controlling Person to do so; and (viii) such other relevant information as the City may request in connection with its consent rights under this Agreement. (b) With respect to any Permitted Transfer to a Developer Affiliate pursuant to Section 2.2.2(a) or any other Transfer that is not a Permitted Transfer, the proposed Transferee at the time of the Transfer shall have expressly assumed for itself and its successors and assigns, and for the benefit of the City, by assignment agreement in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion ("Assignment Agreement"), acknowledged and Recorded, all Tustin Jamboree Parcel IA DDA 8 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) the rights and obligations of Developer under this Agreement and the Other Agreements arising from and after the date of such Transfer and the proposed Transferee shall agree to be subject to all the conditions and restrictions to which Developer is subject by reason of this Agreement and the Other Agreements. (c) The City shall have approved the Partnership Agreement, Guarantor and Completion Guaranty for the applicable Phase pursuant to Sections 4.6.2, 4.6.4 and 4.6.6 and as of the date of the Transfer, there shall have been no modifications to any of the foregoing other than modifications that have been consented to by the City in its sole discretion; (d) Developer shall not be in Potential Default or Material Default under this Agreement at the time of such Transfer; (e) Transferee shall certify in writing for the benefit of the City as to the truth and correctness, as of the effective date of the assignment, of the representations and warranties set forth in Section 3.1 (or as may otherwise be set forth in the Assignment Agreement) to the knowledge of its then specified individuals having knowledge of the transaction and the governance of the partnership. 2.2.4 No Mort2a2es Without Consent. Developer's right to encumber its leasehold interest in either Ground Lease with a Mortgage shall be restricted and shall be permitted only with respect to a Permitted Mortgagee and only upon the terms and conditions set forth in the Ground Lease. There shall be only one Construction Loan for each Phase of the Project. In addition, in no event shall City be required to subject its fee estate and interest in the Site, or any portion thereof, to any liens or covenants, including the lien of any leasehold financing or Mortgage sought or obtained by Developer or any Affordable Housing Covenant. In addition, Developer shall not utilize mezzanine financing in connection with the Project unless such use is approved by the City in its sole discretion and such use is consistent with the terms of the Financing Plan or, if supplemented thereby, the Updated Financing Plan approved by the City pursuant to this Agreement. 2.2.5 Release of Developer from Obligations Under this Agreement. Upon (i) a Transfer other than a Permitted Transfer, (ii) which Transfer has been approved by the City in accordance with Section 2.2, and (iii) the assumption in writing by Transferee of all obligations under this Agreement and the Other Agreements in accordance with Section 2.2.3(2), Developer shall be released from any of its obligations under this Agreement arising from and after the date of such Transfer; provided, however, that Developer shall not be released with respect to (w) matters or circumstances which relate to or arose during the period that such transferor was the Developer hereunder (of during such longer period for which such transferor is liable hereunder), (x) the releases set forth in Section 4.5.3, (y) any of Developer's obligations under this Agreement or the Other Agreements which relate to any other portion of the Property or the Project that is not subject to such Transfer and as to which Developer has not been theretofore released in accordance with this Agreement, if any, and (z) any of Developer's obligations under this Agreement or the Other Agreements to the extent that the same arise prior to the transfer date or subsequently if arising from the acts or omissions of Developer and/or the Developer's Representatives. Tustin Jamboree Parcel IA DDA 9 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 2.2.6 Qualified Tax Credit Investors. The City shall have the right to reasonably approve any Qualified Tax Credit Investor and the City's approval of a Qualified Tax Credit Investor shall not be unreasonably withheld, conditioned or delayed. 2.3 Assignment by Operation of Law. Neither this Agreement nor any interest therein shall be assignable by Developer by operation of law. Any involuntary assignment or Transfer shall constitute a Material Default by Developer which shall not be subject to extension for Force Majeure Delay. In such event, this Agreement shall not be treated as an asset of Developer. The following is a nonexclusive list of acts which shall be considered an involuntary assignment or Transfer: (a) If Developer is or becomes bankrupt or insolvent or if any involuntary proceeding is brought against Developer (unless, in the case of a petition filed against Developer, the same is dismissed within ninety (90) calendar days), or Developer makes an assignment for the benefit of creditors, or institutes a proceeding under or otherwise seeks the protection of federal or State bankruptcy or insolvency laws, including the filing of a petition for voluntary Bankruptcy or instituting a proceeding for reorganization or arrangement; (b) If a writ of attachment or execution is levied on this Agreement or on any of the Property, or on any portion thereof, where such writ is not discharged within ninety (90) calendar days; or (c) If, in any proceeding or action in which Developer is a party, a receiver is appointed with authority to take possession of any of the Property, or any portion thereof, where possession is not restored to Developer within ninety (90) calendar days. 2.4 Remedies For Improper Transfers or Transfers of Control. A failure (a) by Developer to comply with the requirements of this Section 2 with respect to any Transfer or Transfer of Control or (b) by any Transferee to execute the assumption agreement required by Section 2.2.31 if applicable, shall in each case be a Material Default under this Agreement not extended by Force Majeure Delay and, in such event, the City shall have all remedies available to it at law and in equity, including those specified in this Agreement and the Ground Lease. 3. Representations and Warranties. 3.1 Developer's Representations and Warranties. As an inducement to the City to enter into this Agreement and to perform its obligations hereunder, Developer represents and warrants to the City as follows: 3.1.1 Developer, through its Manager and its principals, has the necessary expertise, experience, qualifications and legal status necessary to perform as Developer pursuant to this Agreement and to construct and complete the Project, and, without limiting the foregoing, Developer is experienced in the development, management, and leasing of affordable housing Tustin Jamboree Parcel IA DDA 10 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) projects of the size and type described in this Agreement and understands the process and requirements associated with projects such as the Project described herein; 3.1.2 Acquisition of a leasehold interest in the Property, or any portion thereof, development of the Project and the other undertakings of Developer pursuant to this Agreement are for the purpose of timely development of the Property in accordance with the Schedule of Performance attached to this Agreement and not for speculation or land holding; 3.1.3 As of the Effective Date, Developer is a limited liability company, duly organized, and validly existing and in good standing under the laws of the State of California, is duly qualified to do business and in good standing in the State and in each other jurisdiction where the operation of its business or its lease of property or the performance of Developer's obligations under this Agreement make such qualification necessary; 3.1.4 Subject to all of the conditions set forth in this Agreement for the benefit of Developer, Developer has (or will have prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement or any Other Agreements) all requisite power and authority required to enter into this Agreement and the instruments referenced in this Agreement, to consummate the transaction contemplated hereby and to take any steps contemplated thereby or hereby, and to perform its obligations hereunder and thereunder. 3.1.5 Developer has obtained (or will have obtained prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement or any Other Agreements) all required consents in connection with entering into this Agreement and the instruments and documents referenced in this Agreement to which Developer is or shall be a party and the consummation of the transactions contemplated hereby. 3.1.6 The individuals executing this Agreement and the individuals that will execute the instruments referenced in this Agreement on behalf of Developer have, or will have upon execution thereof, the legal power, right and actual authority to bind Developer to the terms and conditions hereof and thereof. 3.1.7 This Agreement has been duly authorized, executed and delivered by Developer and all documents required in this Agreement to be executed by Developer pursuant to this Agreement shall be, at such time as they are required to be executed by Developer, duly authorized, executed and delivered by Developer and are or shall be, at such time as the same are required to be executed hereunder, valid, legally binding obligations of and enforceable against Developer in accordance with their terms, except as enforceability may be limited by bankruptcy laws or other similar laws affecting creditors' rights. 3.1.8 Neither the execution or delivery of this Agreement or the documents referenced in this Agreement, nor the incurring of the obligations set forth in this Agreement and the documents referenced in this Agreement, nor the consummation of the transactions in this Agreement contemplated, nor compliance with the terms of this Agreement and the documents referenced in this Agreement, will violate any provision of law or any order of any court or Tustin Jamboree Parcel IA DDA 11 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) governmental entity to which Developer is subject or conflict with or result in the breach of any terms, conditions, or provisions of, or constitute a default under any bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreements or instruments to which Developer or any of its members are a party, where such violation, conflict or default could materially adversely affect the ability of Developer to carry out its obligations hereunder. 3.1.9 No attachments, execution proceedings, assignments of benefit to creditors, bankruptcy, reorganization or other proceedings are pending or, to the best of Developer's knowledge, threatened against Developer or its members. 3.1.10 Developer is relying solely upon its own inspections and investigations in proceeding with this Agreement and the transactions contemplated hereby, and is not relying on the accuracy or reliability of any information provided to it by the City, on any oral or written representation (excepting only those representations of the City expressly set forth in Section 3.3) or on the non -disclosure of any facts or conclusions of law made by the City, or any of its elected and appointed officials, officials, employees, agents, attorneys or representatives made in connection with this Agreement. In making such investigation and assessment, Developer has been provided access to any persons, records or other sources of information which it has deemed appropriate to review and it has thereafter completed such investigation and assessment. 3.1.11 Without limiting the generality of the foregoing provisions, Developer acknowledges that the City has not made and will not make any representations or warranties concerning compliance or non-compliance of the Property with Environmental Laws or the existence or non-existence of Hazardous Materials in relation to the Property or otherwise. 3.1.12 To Developer's knowledge, there are no adverse conditions or circumstances, no pending or threatened litigation, governmental action, or other condition which could prevent or materially impair Developer's ability to develop the Property and the Project as contemplated by the terms of this Agreement. 3.1.13 Developer has not paid or given, and will not pay or give, any third Person any money or other consideration for obtaining this Agreement, other than the normal cost of conducting business and cost of professional services such as architects, engineers and attorneys. 3.1.14 All reports, documents, instruments, information and forms of evidence delivered by Developer to the City concerning or related to this Agreement and the transactions contemplated hereby are, to the best of Developer's knowledge, accurate, and correct, and do not contain any misrepresentation or omission. 3.1.15 By not later than the dates set forth Section 4.6.1 for each such deliverable, Developer shall have delivered to the City the Financing Plan, as the same may be amended from time to time as set forth in Section 4.6, to demonstrate that Developer has sufficient development sources to (a) pay through issuance of the Certificate of Compliance, all costs of development of the Project and the construction, marketing and leasing of all the Units as further described in the Scope of Development; and (b) enable Developer to perform and satisfy all the covenants of Developer contained in this Agreement. Tustin Jamboree Parcel IA DDA 12 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 3.1.16 Developer does not have any contingent obligations or any other contracts the performance or nonperformance of which could materially adversely affect the ability of Developer to carry out its obligations hereunder, including funding of the Project. 3.1.17 There are no legal proceedings either pending or, to the best of Developer's knowledge, threatened, to which Developer is or may be made a party, or to which any of Developer's property, or the Property, is or may become subject, which has not been fully disclosed in the documents submitted to the City and which could materially affect the ability of Developer to carry out its obligations hereunder. Subject to Section 7.2.2(b)(ix), Developer's representations and warranties set forth in this Section 3.1 shall be deemed to be restated at each Close of Escrow, and shall survive the Close of Escrow for each Phase until the issuance of a Certificate of Compliance for such Phase and for such longer period, if any required by the applicable Ground Lease. As used in Article 3, "to Developer's knowledge" and similar phrases means any knowledge of Michael Massie, Laura Archuleta, and Victoria Ramirez ("Developer Representatives") without any duty of inquiry or investigation. Notwithstanding anything to the contrary contained herein, (a) none of the Developer Representatives shall be personally liable for any inaccuracy or breach by Developer of the representations and warranties contained herein or elsewhere in this Agreement and/or any of the Other Agreements, and (b) the City shall not be entitled to make a claim for a breach of Developer's representations and warranties if Developer had disclosed in writing facts to the City indicating that the applicable representation and warranty was incorrect prior to (i) the execution of this Agreement and City proceeded with the execution of this Agreement, or (ii) any Close of Escrow and City had proceeded with such Close of Escrow, in either case in spite of such inaccuracy. 3.2 Developer Covenants Regarding Representations and Warranties. Developer shall promptly advise the City in writing if either any of the Developer Representatives becomes aware (without any duty of inquiry) of any representation or warranty in Section 3.1 is or becomes untrue in any material respect prior to each Close of Escrow. 3.3 City Representations and Warranties. As an inducement to Developer to enter into this Agreement and perform its obligations hereunder, the City represents and warrants to Developer as follows: 3.3.1 The City is a municipal corporation incorporated within and existing pursuant to the laws of the State of California. 3.3.2 Subject to all of the conditions set forth in this Agreement for the benefit of the City, the City has (or will have prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement or any Other Agreements) all requisite power and authority required to enter into this Agreement and the instruments referenced in this Agreement, to consummate the transaction contemplated hereby and to take any steps contemplated thereby or hereby, and to perform its obligations hereunder. Tustin Jamboree Parcel IA DDA 13 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 3.3.3 The City has obtained (or will have obtained prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement or any Other Agreements) all required consents in connection with entering into this Agreement and the instruments and documents referenced in this Agreement to which the City is or shall be a party and the consummation of the transactions contemplated hereby. 3.3.4 The individual executing this Agreement and the individual that will execute the instruments referenced in this Agreement on behalf of the City have, or will have upon execution thereof, the legal power, right and actual authority to bind the City to the terms and conditions hereof and thereof. 3.3.5 This Agreement is duly authorized, executed and delivered by the City and all documents required in this Agreement to be executed by the City pursuant to this Agreement shall be, at such time as they are required to be executed by the City, duly authorized, executed and delivered by the City and are or shall be, at such time as the same are required to be executed hereunder, valid, legally binding obligations of and enforceable against the City in accordance with their terms. 3.3.6 There are no legal proceedings either pending or, to the knowledge of City Manager or the City Attorney, threatened, to which the City is or may be made a party, or to which any of the City's property, including the Property, is or may become subject, which has not been fully disclosed in the documents submitted to Developer and which could reasonably affect the ability of the City to carry out its obligations hereunder or which would affect the Property after any Close of Escrow. 3.3.7 Neither the execution or delivery of this Agreement or the documents referenced in this Agreement, nor the incurring of the obligations set forth in this Agreement, and the documents referenced in this Agreement, nor the consummation of the transactions in this Agreement contemplated, nor compliance with the terms of this Agreement and the documents referenced in this Agreement, will violate any provision of law, any order of any court or other Governmental Authority or conflict with or result in the breach of any terms, conditions, or provisions of, or constitute a default under any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreements or instruments to which the City is a party or which affect any of the Property. 3.3.8 To the City's knowledge, there are no existing defaults under any of the agreements between the City and the Federal Government relating to the Property which would materially j eopardize the Property. Subject to Section 7.2.1(a)(viii), the City's representations and warranties set forth in this Section 3.3 shall be deemed to be restated at each Close of Escrow, and shall survive the Close of Escrow for each Phase until the issuance of a Certificate of Compliance for such Phase and for such longer period, if any required by the applicable Ground Lease. As used in Article 3, "to City's knowledge" and similar phrases means any knowledge of Jeffrey Parker, David Kendig, John Buchanan and Jerry Craig (the "City Representatives") after conducting commercially reasonable inquiry. Notwithstanding anything to the contrary contained herein, (a) none of the Tustin Jamboree Parcel IA DDA 14 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) City Representatives shall be personally liable for any inaccuracy or breach by the City of the representations and warranties contained in Section 3.3 or elsewhere in this Agreement and/or any of the Other Agreements, and (b) Developer shall not be entitled to make a claim for a breach of the City's representations and warranties if the City had disclosed in writing facts to Developer indicating that the applicable representation and warranty was incorrect prior to (i) the execution of this Agreement and Developer proceeded with the execution of this Agreement, or (ii) any Close of Escrow and Developer had proceeded with such Close of Escrow, in either case in spite of such inaccuracy. 3.4 City Covenants Regarding Representations and Warranties. The City shall promptly advise Developer in writing if any of the City Representatives becomes aware (without any duty of inquiry) of any representation or warranty in Section 3.3 is or becomes untrue in any material respect prior to each Close of Escrow. 4. Lease of Property from City to Developer. 4.1 Ground Leases. Prior and as a condition precedent to the Close of Escrow for each Phase, the City, as lessor, and Developer, as lessee, shall agree, each in its sole and absolute discretion, upon the form and substance of a ground lease pursuant to which the City shall lease to Developer the applicable Property, and which as to the Phase I Property is referred to herein as the "Phase I Ground Lease" and as to the Phase II Property is referred to herein as the "Phase II Ground Lease"(the Phase I Ground Lease and Phase II Ground Lease collectively, the "Ground Leases"). The Ground Leases shall have a term not to exceed fifty-five (55) years and are anticipated to address and include the following terms and conditions for each Phase: (a) all Mortgages shall comply with the terms of Section 2.2.4; (b) Developer shall be required to accept the Ground Leases and the Property on an "AS -IS, WHERE -IS AND WITH ALL FAULTS" basis upon the terms and conditions set forth in Section 4.5.2; (c) the Project will be subject to applicable development fees, including, but not limited to, those required by the City, or other jurisdictions such as the Foothill/Eastern Corridor Fee, the Santa Ana/Tustin Transportation System Improvement Area (TSIA) fee, school impact fees by the Tustin Unified School District ("TUSD"), current Orange County School Facility Bonds (Measure G and Measure L), and utility meter and connection fees; and may be subject to a future community facilities district for financing of school facilities to benefit TUSD pursuant to an agreement between the City and TUSD; (d) the Ground Leases shall contain limitations on transfer and assignment of the rights of Developer, including the right of the City to approve in its sole discretion all assignments and transfers by Developer or interests in Developer except those transfers expressly enumerated in the Ground Lease and Transaction Documents as "Permitted Transfers"; Tustin Jamboree Parcel IA DDA 15 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (e) the Ground Lease shall include an obligation of Developer to release, defend, indemnify and hold harmless the City with respect to any environmental remediation and liability regardless of cause (except for remediation and liability caused by the City's willful misconduct or active negligence) and whether known or unknown as of the effective date of the Ground Lease; (f) the Project shall be consistent with the Reuse Plan, the City's General Plan, and the Specific Plan unless otherwise specifically agreed by the City, at its sole discretion; (g) the Ground Lease shall contain standard mortgagee protection provisions as reasonably approved by the City; (h) subject to the rights of any mortgagees, the Ground Lease shall contain remedies and termination rights in favor of the City for breach of the Ground Lease; (i) with respect to Phase I, any rental payment for the Phase I Ground Lease shall come from fifty percent (50%) of available net cash flow for Phase after the full repayment of the City Loan—in connection with such obligation the Parties shall establish in the Phase I Ground Lease a definition of "net cash flow" which shall be consistent with the terms of the financing plan submitted by Developer to the City prior to the Effective Date; 0) with respect to Phase 11, base rent under the Phase 11 Ground Lease shall be in the amount of One Million Five Hundred Thousand Dollars ($1,500,000), which shall be due at Close of Escrow for Phase 11; and (k) in order to assure consistent management of the Project as an affordable housing project in accordance with the terms of the Affordable Housing Covenants, each Ground Lease shall require that, unless otherwise agreed by then -current ground lessor and ground lessee, at the expiration of the full Ground Lease term (and provided the Ground Lease is not earlier terminated for any reason), ground lessor and ground lessee shall enter into a management agreement pursuant to which ground lessor shall retain ground lessee or its affiliate to manage the Units and Improvements on the applicable Parcel in compliance with the terms of the Affordable Housing Covenant for such Parcel, for the remaining term of such Affordable Housing Covenant and for which ground lessor shall, unless otherwise agreed by ground lessor and ground lessee, pay to such manager a management fee equal to the "General Partner Asset Management Fee" shown on the pro forma for year fifty-five (55) of the Ground Lease, escalated annually by three percent (3%) for each year of the term of the management agreement and a reasonable property management fee as determined by the Parties (i.e., commensurate with the fee for property management services in effect during the term of the Ground Lease). In no event shall ground lesser be obligated to make any other payments to ground lessee or such manager following termination of the applicable Ground Lease. 4.2 Property. Each Ground Lease shall include lease of the applicable Parcel, together with all existing improvements, if any, presently located on such Parcel, all rights and appurtenances pertaining to such parcel or such improvements and all permits, licenses, approvals and authorizations issued Tustin Jamboree Parcel IA DDA 16 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) by any Governmental Authority in connection with such Parcel (with respect to the Phase I Parcel, collectively referred to in this Agreement as the "Phase I Property", with respect to the Phase II Parcel, collectively referred to in this Agreement as the "Phase II Property"), subject to all Permitted Exceptions. Notwithstanding the foregoing: The terms "Property", "Phase I Property" and "Phase II Property" shall exclude the following rights and interest which shall be explicitly reserved to the City: (a) Any and all oil, oil rights, minerals, mineral rights, natural gas, natural gas rights and other hydrocarbon by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may be within or under the Parcel together with the perpetual right of drilling, mining, exploring for and storing in and removing the same from the Parcel or any other land, including the right to whipstock or directionally drill and mine from lands other than the Parcel, oil or gas wells, tunnels and shafts into, through or across the subsurface of the Parcel and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to re -drill, re -tunnel, equip, maintain, repair, deepen and operate any such well or mines; but without, however, the right to drill, mine, store, explore or operate through the surface of the Parcel or otherwise to adversely affect the use or operation of the Parcel as anticipated by this Agreement, or the structural integrity of any improvements on the Parcel; and (b) Any and all water, water rights or interests therein appurtenant or relating to the Parcel or owned or used by the City in connection with or with respect to the Parcel no matter how acquired by the City, whether such water rights shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the perpetual right and power to explore, drill, re -drill and remove the same from or in the Parcel, to store the same beneath the surface of the Parcel and to divert or otherwise utilize such water, rights or interests on any other property owned or leased by the City; but without, however, the right to drill, mine, store, explore or operate through the surface of the Parcel or otherwise to adversely affect the use or operation of the Parcel as anticipated by this Agreement, the structural integrity of any improvements on the Parcel. Provided, further that the reservation by the City of the rights, and interests in this Section 4.2 shall not be deemed to limit Developer's right to drive piles, construct caissons, foundations, basements and other subsurface improvements and otherwise engage in subsurface construction activity in order to construct the Improvements on the Parcel. 4.3 Delivery of Funds. All funds delivered to the City or Escrow Holder under this Agreement shall be in the form of cash, wire transfer (to such account as the City or Escrow Holder notifies Developer in writing), or by cashier's check drawn on good and sufficient funds on a federally chartered bank and made payable to the order of City or Escrow Holder, as the case may be. 4.4 Escrow and Joint Escrow Instructions. To accomplish the conveyance of the ground leasehold interest in the Phase I Property and/or the Phase II Property from the City to Developer pursuant to the Ground Lease(s), the Parties shall Tustin Jamboree Parcel IA DDA 17 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) establish an escrow with Escrow Holder (the "Escrow") not later than five (5) business days after the approval by Developer and the City of the Required Agreements, by each delivering three executed original counterparts of this Agreement to Escrow Holder. The date of opening of Escrow shall be the date that Escrow Holder receives executed original counterparts to this Agreement signed by Developer and the City. Upon the written acceptance of this Agreement by Escrow Holder, this Agreement shall constitute the joint escrow instructions of Developer and the City to Escrow Holder to open Escrow. Upon Escrow Holder's receipt of this Agreement in fully executed form and Escrow Holder's written acceptance of this Agreement, Escrow Holder is authorized to act in accordance with the terms of this Agreement. Developer and the City shall execute Escrow Holder's general escrow instructions upon request, with such modifications thereto as Developer and the City may reasonably require; provided, however, if there is any conflict or inconsistency between such general escrow instructions and this Agreement, this Agreement shall control. Escrow Holder shall not prepare any further escrow instruction restating or amending this Agreement unless specifically so instructed by the City and Developer in writing. Any supplemental escrow instructions must be in writing and signed by the City and Developer and accepted by the Escrow Holder to be effective. 4.5 Investigation; Property Conveyed "As -Is". 4.5.1 Investigation. (a) Developer shall have the right to conduct Developer's own investigation of the Property pursuant to Section 5.1; provided however that any investigation by Developer of the LIFOC Areas shall require the prior written authorization of the Navy and, if applicable, DTSC and the Regional Water Quality Control Board. If Developer proceeds to the Close of Escrow with respect to a Phase, Developer represents and warrants to the City that, subject to the City's express representations, warranties, covenants and obligations set forth in this Agreement, Developer will have satisfied itself that it has determined that all matters related to the Property, and the Project associated with such Phase are acceptable to Developer, including, the state of title (including easements, covenants, conditions and/or restrictions affecting the Property, if any) subject only to the Permitted Exceptions, the physical condition thereof, the physical condition of structures, if any, located upon the Site and, as applicable, the accessibility and location of utilities, and all mechanical, plumbing, sewage, and electrical systems located therein, suitability of soils, environmental and other investigations regarding the Property. Prior to the expiration of the Due Diligence Period, Developer will have reviewed all items that in Developer's sole judgment affect or influence Developer's lease and use of the Property and Developer's willingness to consummate the transactions described by this Agreement. (b) Developer acknowledges and agrees as follows with respect to each Phase as of the Close of Escrow for such Phase: (i) Its determination to enter into this Agreement constitutes Developer's agreement that Developer, in consummating the transactions described in this Agreement: (1) has been given the opportunity to inspect the Property and to review the information and documentation provided by the City to Developer Tustin Jamboree Parcel IA DDA 18 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) affecting the Property, including the environmental condition of the Property or otherwise obtained by Developer in connection with its due diligence of the Property, and with the exception of the City's express representations, warranties, covenants and obligations set forth in this Agreement is relying solely on its own investigation of the Property and review of such information and documentation in determining the physical, economic and legal condition of the Property and not on any information, representation or warranty provided by the City or the agents of the City; (2) has performed its own assessment of the Property, including the environmental condition of the Property, the presence of Hazardous Materials on the Property, the suitability of the soil for improvements to be constructed, the implications of land use restrictions on the development plan for the Project and the Property and the consequences of any subsequently discovered contamination on or adjacent to the Property; and (3) has been provided with access to all information in the possession of the City which it has requested; (ii) Information provided to Developer by or on behalf of the City with respect to the Property was obtained from a variety of sources and that the City has not made any independent investigation or verification of such information and makes no representations as to the accuracy or completeness of such information; and Developer is satisfied with the nature and extent of its permissible investigation of the physical condition and other matters relating to the Property and is willing to consummate the transactions described by this Agreement. (iii) Without limiting the generality of the foregoing, Developer acknowledges and agrees that (a) it has been provided with access to (i) all environmental reports and statements listed on Attachment 4 and all reports either attached to or referenced in the Memorandum of Agreement, Federal Deed and LIFOC, (ii) the FOST and the LIFOC and (iii) the Environmental Baseline Survey (the "EBS") which is incorporated into the FOST and LIFOC by reference; (b) it shall perform its own assessment of the environmental condition of the Property, the presence of Hazardous Materials on the Property, the suitability of the soil for improvements to be constructed, the implications of land use restrictions on the development plan for the Project and the Property and the consequences of any subsequently discovered contamination on the Property; and (c) it shall review the Navy produced or identified documentation listed on Attachment 4 reflecting the Navy's knowledge of the environmental condition of the Property. (c) Nothing in this Section 4.5.1 shall in any way limit the City's representations or warranties set forth in Section 3.3 of this Agreement, or the covenants or obligations of City set forth in this Agreement or in any of the Other Agreements. 4.5.2 AS -IS; WHERE -IS. (a) No Representations or Warranties. Developer recognizes that the City would not sell the Property except on an "AS, IS, WHERE IS, WITH ALL FAULTS" basis, and Developer acknowledges that the City has made no representations or warranties of any kind whatsoever (excepting only those representations and warranties of the City expressly set forth Tustin Jamboree Parcel IA DDA 19 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) in Section 3.3), either express or implied in connection with any matters with respect to the Property or any portion thereof. (b) Acknowledgement. Developer's determination to enter into this Agreement constitutes Developer's agreement that Developer, in consummating the transactions described in this Agreement is buying the Property in an "AS IS, WHERE IS, WITH ALL FAULTS" condition, in its present state and condition and with all faults, if any. Developer further acknowledges and agrees that, except as otherwise specifically provided in Section 3.3 of this Agreement, the City makes no representations, warranties, promises, agreements or guaranties of any kind or character in connection with the transaction contemplated by this Agreement, whether express or implied, oral or written, past, present or future, whether by the City or any of its agents, elected or appointed officials, representatives or employees, of concerning or with respect to: (i) the value of the Property or the income to be derived from the Property; (ii) the suitability of the Property for any and all future development, uses and activities which Developer may conduct thereon, including the development of the Project described in this Agreement; purpose of the Property; Property; (iii) the habitability, merchantability or fitness for a particular (iv) the manner, quality, state of repair or lack of repair of the (v) the nature, quality or condition of the Property including water, soil and geology; (vi) the compliance of or by the Property and/or its operation in accordance with any Governmental Requirement, including the National Environmental Policy Act, CEQA and the Americans with Disabilities Act of 1990; (vii) the manner or quality of the construction or materials, if any, incorporated into the Property; (viii) the presence or absence of Hazardous Materials, including lead paint at, on, under, or adjacent to the Property; (ix) the content, completeness or accuracy of the information, documentation, studies, reports, surveys and other materials, delivered to Developer in connection with the review of the Property and the transactions contemplated in this Agreement; (x) the conformity of the existing improvements on the Parcel, if any, to any plans or specifications for the Property; Tustin Jamboree Parcel IA DDA 20 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (xi) compliance of the Property with past, current or future Governmental Requirements relating to zoning, subdivision, planning, building, fire, safety, health or environmental matters and/or covenants, conditions, restrictions or deed restrictions; (xii) the fact that all or a portion of the Property may be located on or near an earthquake fault line or falls within an earthquake fault zone established under the Alquist-Priolo Earthquake Zone Act, California Public Resources Code Sections 262 1-2630 or within a seismic hazard zone established under the Seismic Hazards Mapping Act, California Public Resources Code, Sections 2690-2699.6 and Sections 3720-3725; (xiii) the existence or lack of vested land use, zoning or building entitlements affecting the Property; (xiv) the construction or lack of construction of Tustin Legacy or if constructed, the construction of Tustin Legacy in accordance with design guidelines, plans and specifications previously or to be prepared therefor; (xv) the contents of the Memorandum of Agreement, the Federal Deed, the Base Closure Law and the FOST; and (xvi) any other matters. Nothing in this Section 4.5.2(b) shall in any way limit the City's representations or warranties set forth in Section 3.3 this Agreement or its covenants or obligations under this Agreement or the Other Agreements. (c) Environmental Condition of the Property; Restrictions. The City makes no representation or warranty as to the environmental condition of the Property, the Navy's obligations with respect to the environmental condition of the Property or the adequacy or accuracy of any environmental report that has been rendered. Developer acknowledges and agrees that; (i) there may be some residual contamination on the Property as a result of Navy historic activities; (ii) the Navy has agreed to accept certain limited responsibility for any contamination it caused, including any contamination discovered after transfer from the Navy, in accordance with existing Governmental Requirements including the National Defense Authorization Act For Fiscal Year 1993 as amended (Public Law No. 102-434) Section 330; and (iii) the deed restrictions contained in the Federal Deed are binding upon successors and assigns of the City and are enforceable by DTSC pursuant to a conveyed property right from the Navy to DTSC. (d) Federal Deed and Memorandum of Agreement. Developer acknowledges and agrees that the lease of the Property is subject to the terms and conditions expressly set forth in the Memorandum of Agreement and the Permitted Exceptions, and the portion of the Property owned in fee by the City shall be subject to the Federal Deed and the LIFOC Areas shall additionally be subject to the terms and conditions set forth in the LIFOC. From and after the Close of Escrow for a Phase, Developer agrees to assume and faithfully perform any covenants running with the land and obligations set forth in the Federal Deed as obligations to be performed by "Grantee or its successors or assigns" with respect to such Phase. Tustin Jamboree Parcel IA DDA 21 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (e) No Unauthorized Representations. No Person acting on behalf of the City is authorized to make, and by execution hereof, Developer acknowledges that no Person has made, any representation, agreement, statement, warranty, guarantee or promise regarding the Property, the Project or the transactions contemplated in this Agreement or the past, present or future zoning, land use entitlements, construction, physical condition, presence or extent of Hazardous Materials or other status of the Property except as may be expressly set forth in this Agreement or in any of the Other Agreements. No representation, warranty, agreement, statement, guarantee or promise, if any, made by any Person acting on behalf of the City that is not contained in this Agreement or in any of the Other Agreements will be valid or binding on the City. Nothing in this Section is intended to affect in any manner the validity of the Entitlements and Development Permits obtained by Developer with respect to the Property. 4.5.3 Releases. Developer, on behalf of itself and each and every person and entity claiming by, through or under Developer or any such successor or assignee of Developer with respect to the period of such person or entity's interest in the Property or any portion thereof (each a "Releasing Party"), hereby waives, as of the Effective Date, and agrees to waive, as of each Close of Escrow, the right of each Releasing Party to recover from, and fully and irrevocably releases, the City and its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns (individually, a "Released Party" and collectively, the "Released Parties") from any and all Claims that Developer or any Releasing Party may now have or hereafter suffer or acquire arising from or related to: (i) any due diligence Information, (ii) any condition of the Property or any current or future improvement thereon, known or unknown by any Releasing Party or any Released Party or any other matter relating to the condition of the Property, (iii) any construction defects, errors, omissions or other conditions, latent or otherwise, including environmental matters, as well as economic and legal conditions on or affecting the Property, or any portion thereof, (iv) the existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, or from, the Property or any current or future improvement thereon or any portion thereof, (v) Claims of or acts or omission to act of any Governmental Authority or any other third party arising from or related to any actual, threatened, or suspected Release of a Hazardous Material on, in, under, or from, about, or adjacent to the Property or any current or future improvement thereon, including any Investigation or Remediation at or about the Property or any current or future improvement thereon; and/or (vi) arising from or related to the Tustin Legacy Backbone Infrastructure Program, any community facilities district or the cost or extent thereof, or the amount of the Project Fair Share Contribution or any community facilities district assessment against the Property, and/or Improvements described in this Agreement; provided that the foregoing release by the Releasing Parties shall not extend to any Claim to the extent the Claim is the result of the active negligence or willful misconduct of the City. Without limiting the generality of the foregoing, Developer agrees that: (i) Developer shall be deemed to have accepted all risk associated with adverse physical characteristics and existing environmental conditions that may or may not have been revealed by Developer's investigation of the Property; and (ii) as between the City and Developer, Developer shall be deemed to have accepted all costs and liabilities associated in any way with the physical and environmental condition of the property. Developer acknowledges and agrees that the City makes no representations or warranties Tustin Jamboree Parcel IA DDA 22 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) regarding the truth, accuracy or thoroughness of the investigation, preparation or content of any reports or studies which may be provided by the City to Developer or which may be obtained by Developer with respect to the Property, or the competence or ability of the persons or companies preparing any such studies or reports. Developer agrees that, by closing the transaction contemplated herein, Developer and its environmental consultants will have had an opportunity to conduct all necessary or desirable tests, inspections and studies in order to make an independent investigation of the physical and environmental condition of the property. This release includes Claims of which Developer is presently unaware or which Developer does not presently suspect to exist which, if known by Developer, would materially affect Developer's release of the Released Parties. Developer specifically waives the provision of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." In this connection and to the extent permitted by law, Developer on behalf of itself, its Successor Lessees and the other Releasing Parties hereby agrees, represents and warrants, which representation and warranty shall survive each Close of Escrow and the termination of this Agreement, that (x) it realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to Claims or controversies which are presently unknown, unanticipated and unsuspected, (y) the waivers and releases in this Section 4.5.3 have been negotiated and agreed upon in light of that realization and (z) Developer, on behalf of itself, its Successor Lessees and the other Releasing Parties, nevertheless hereby intends to release, discharge and acquit the Released Parties from any such unknown Claims and controversies to the extent set forth above which might in any way be included as a material portion of the consideration given to the City by Developer in exchange for the City's performance hereunder. BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES THAT (A) IT HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS SECTION, (B) IT HAS HAD THE CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS MEANING AND SIGNIFICANCE, AND (C) IT HAS ACCEPTED AND AGREED TO THE TERMS SET FORTH IN THIS SECTION. CITY'S INITIALS DEVELOPER'S INITIALS From and after the Phase I Close of Escrow with respect to the Phase I Property and from and after the Phase II Close of Escrow with respect to the Phase 11 Property, this release shall be an equitable servitude and a covenant running with the land comprising each such Parcel for the benefit of the City and Developer and the successors and assigns of Developer having a leasehold interest in all Tustin Jamboree Parcel IA DDA 23 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) or any portion of the Property and all persons and/or entities claiming by, through or under Developer or any such successor or assignee with respect to the period of such person or entity's interest in the Property. 4.6 Financing Plan; Required Agreements and Additional Closing Conditions. The conditions set forth in this Section 4.6 shall be conditions precedent for the benefit of the City with respect to each Close of Escrow and shall be satisfied by Developer not later than the times specified for such conditions below or in the Schedule of Performance. Only the City has the right to waive any of the conditions in this Section 4.6. 4.6.1 Financing Plan. As of the Effective Date, Developer has provided the City with a financing plan evidencing Developer's plan to obtain the debt and equity required to construct and operate each Phase of the Project and to meet its other obligations under this Agreement, containing: (a) a business plan narrative and cash flow projection for operation of the Project; and (b) a cost breakdown for all Development Costs to be incurred for the development of the Project based upon government permits and approvals and any design documents. At least fifteen (15) Business Days before the filing of the application for Tax Credits with TCAC for each Phase of the Project ("TCAC Application"), Developer shall provide an update to the originally submitting financing plan ("Financing Plan") containing the following which shall be approved by the City prior to the submittal of the TCAC Application (provided that the City shall cooperate and timely review and provide comments to the proposed financing plan, including the items listed below following receipt of all such items and provided further that if the City shall not have responded or shall have disapproved the proposed financing plan or any portion thereof prior to the TCAC Application deadline, the same shall, unless otherwise agreed by the Parties, be a failure of a Closing Condition for the applicable Phase and the sole remedies of the Parties shall be the termination of this Agreement without liability to either Party in accordance with Section 15.1.3): (1) a true copy of the financing letter for the Construction Loan to be submitted with the TCAC Application; (2) a true copy of any financing letter for other financing from external sources to be submitted with the TCAC Application in the amounts necessary to provide debt and equity proceeds as may be required to pay for all Development Costs to be incurred for the development of the Project consistent with the projected costs set forth in the TCAC Application; (3) a true copy of the syndication letter provided by the Qualified Tax Credit Investor to be submitted with the TCAC Application; (4) for the Phase 11 Project only, a true copy of a letter or other documentation issued by Orange County of an award of Mental Health Services Act Special Needs Housing Program funds; (5) for the Phase 11 Project only, a commitment letter for the Orange County Community Foundation Loan; (6) a sources and uses table identifying the proposed use of each source of funding for the Project during the construction period, including the equity investments to be made by Qualified Tax Credit Investor; and (7) any revisions to the information previously provided, and shall certify to the City either that the financing plan submitted prior to the Effective Date remains true and correct or, as modified to reflect Developer's expectation as to available financing, remains sufficient to pay through issuance of the Certificate of Compliance all Development Costs of the Project and all other costs for the construction, marketing and lease of the Improvements as described in the Scope of Development. The City will accept (i) any financing provided by a Permitted Mortgagee procured by Developer which is on terms not materially different than the financing terms set forth on the Financing Plan; (ii) as a Permitted Mortgagee any lender that is a Qualified Institutional Lender, or any lender that is not a Qualified Tustin Jamboree Parcel IA DDA 24 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Institutional Lender so long as such lender is agreed to by the City in its reasonable discretion. Developer shall identify with specificity any submitted documents which Developer wants the City to maintain as confidential documents. The City shall not disseminate such information and shall take all reasonable steps to maintain such confidentiality, including maintenance of such documents at a non-public area of City Hall or off-site unless disclosure is otherwise required by law such as, but not limited to, the California Public Records Act. The City's staff, agents, negotiators and consultants may review the information identified as confidential as necessary; provided that the City shall inform such staff, agents, negotiators and consultants of the confidential nature of such information, subject to the provisions of this Section 4.6.1. 4.6.2 Evidence of Financing. Not later than fifteen (15) Business Days prior to each of the Phase I Close of Escrow and the Phase 11 Close of Escrow and as a condition precedent for the benefit of the City to the applicable Close of Escrow, Developer shall have submitted to the City the following evidence of financing for the applicable Phase of the Project, which shall be satisfactory to the City in its reasonable discretion(provided that the City shall cooperate and timely review and approve or provide comments to the items listed below following receipt of all such items and provided further that if Developer shall not have submitted such items to the City or the City shall not have approved or shall have disapproved any of the following items prior to the earlier of the date established by the Parties for Close of Escrow for a Phase or the Outside Closing Date for such Phase, the same shall, unless otherwise agreed by the Parties, be a failure of a Closing Condition for the applicable Phase and the sole remedies of the Parties shall be the termination of this Agreement without liability to either Party in accordance with Section 15.1.3): (a) Developer shall provide an update to the Financing Plan provided in compliance with Section 4.6.1 to identify revisions to the information previously provided and providing actual sources and uses of funds ("Updated Financing Plan") and shall (i) certify to the City either that (A) the Financing Plan provided pursuant to Section 4.6.1 remains true and correct or (B) as modified to reflect Developer's expectation as to available funding and costs, the Financing Plan remains sufficient to pay through Completion of the applicable portion of the Project comprising such Phase, all Development Costs and operating costs for such Phase; (ii) each of the Persons providing equity or debt proceeds identified in the Financing Plan previously approved continues to be ready to provide such at the applicable Closing; and (iii) there has been no material adverse increase in the projected Development Costs for the completion of the applicable Phase of the Project as set forth in the previously approved Financing Plan which increase is not covered by an identified source of proceeds. (b) Developer shall provide the City with (i) a substantially final form of the commitment letter to be issued by the Permitted Mortgagee for the Construction Loan for the Project and (ii) a fully executed partnership agreement of the Developer Affiliate to which Developer assigns its interest in this Agreement as further described in Section 1.4.2 ("Partnership Agreement") approved by the City in accordance with Section 4.6.6, and such commitment and the Partnership Agreement shall provide for funding sources in the aggregate substantially similar to that set forth in the Updated Financing Plan approved by the City pursuant to Section 4.6.2(a). 4.6.3 Early Termination for Failure to Meet TCAC Application Requirements. If the Financing Plan for a Phase requires submission by Developer of an Tustin Jamboree Parcel IA DDA 25 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) application to TCAC, then Developer shall file a TCAC Application for each such Phase for which it is a component of the Financing Plan on or before the June 2019 TCAC Application due date, and, unless Developer is awarded Tax Credits as a result of such TCAC Application or the City approves an alternative Financing Plan not requiring TCAC approval or Tax Credits, Developer shall file an application at the application deadline for each subsequent TCAC Tax Credit award cycle until September 2020 for each Phase for which Tax Credits are a component of the Financing Plan. The City shall have the right, in its sole discretion, to terminate this Agreement or any Phase if Developer fails to submit an application for any Phase for which such application was required by the foregoing sentence to be, but was not, submitted. 4.6.4 Completion Guaranty. To secure the Completion of the Project and the performance of Developer's construction obligations under the Ground Lease, as a condition to each Close of Escrow for the benefit of the City, Developer shall cause the Guarantor to execute a Completion Guaranty in substantially the form and substance of the Completion Guaranty in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion. Developer has provided the City with the most current audited financial statements of Jamboree and City has confirmed that as of the Effective Date, Jamboree has sufficient Liquidity and Net Worth to act to secure the development, construction, management and maintenance obligations of Developer under this Agreement and the Ground Leases. Guarantor (1) shall maintain a Net Worth and Liquidity equal to the e minimum Net Worth and Liquidity required by the construction lender or permanent lender, (US Bank or other Qualified Institutional Lender) whichever is greater but in no event less than a Net Worth of $10 million dollars and a Liquidity of $2 million dollars ("Minimum Liquidity Standards"), and as part of the Required Agreements, Developer, Guarantor and City shall enter into a written agreement upon terms approved by each in its sole discretion, establishing the procedures by which Guarantor shall furnish specified financial reports to the City on a regular basis to assure that the Minimum Liquidity Standards (the failure of any such standard being, a "City Guarantor Illiquidity Event"). Within sixty (60) calendar days following the notice from City of a City Guarantor Illiquidity Event, Guarantor shall supplement its Net Worth and Liquidity to meet the Minimum Liquidity Standards or Developer shall be required to provide the City with additional security satisfactory to the City by (1) providing the City with a Completion Guaranty in the form and substance of the Completion Guaranty, or otherwise acceptable to the City in its sole discretion, from a replacement or supplemental guarantor or guarantors acceptable to the City in its sole discretion, or (2) furnishing the City with another form of security such as a pledge of specified assets or completion bond, in each case in a manner meeting the requirements of the City in its sole discretion. 4.6.5 Negotiation of Required Agreements. Unless otherwise agreed by the Parties in writing, each in its sole discretion, it shall be a condition precedent to Close of Escrow with respect to each Phase that City and Developer shall have negotiated the terms and conditions of the Ground Leases, the Completion Guaranty, the Special Restrictions, the Memorandum of Ground Lease(s),the Landscape Installation and Maintenance Agreement, the Easement Agreement, the Affordable Housing Covenants, Assignment Agreement, the Access License(s), the Schedule of Performance and Scope of Development and the various certificates evidencing authority for both Phases, each of which agreements are essential terms of the Transaction and each of which shall be subject to approval by City and Developer, each in its sole discretion ("Required Agreements"). The Parties agree to use good faith efforts to negotiate the Required Tustin Jamboree Parcel IA DDA 26 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Agreements on or before April 30, 2019, but such time period may be extended by mutual agreement of the Parties until June 28, 2019 with approval by the City Manager and Developer. In preparing the Required Agreements, the Parties shall consider the agreements prepared by the City for use in other transactions at Tustin Legacy, but shall not be bound by such agreements. If the Parties are unable to agree upon the terms of all of the Required Agreements on or before such date, then this Agreement shall automatically upon such date terminate in accordance with Section 15 of this Agreement, unless the Parties mutually and in writing, agree to an extension. If the Parties are able to agree upon the essential terms of the transaction and the form of all of the Required Agreements, such agreements shall be attached as Attachments to this Agreement and bearing the attachment numbers described in this Agreement, which shall be executed by the Parties. The Required Agreements shall be binding as to a Phase if and only if such documents are approved by counsel to each Party as to form, approved by the City Council on behalf of the City and Jamboree on behalf of Developer, and fully executed by authorized representatives of both Parties and, as to each Phase, all conditions to Close of Escrow for such Phase are satisfied or waived in accordance with the requirements of this Agreement. Nothing in this Agreement shall supersede or waive any discretionary or regulatory approvals required to be obtained from the City pursuant to the Tustin City Code, or the provisions of any applicable State or Federal law or regulation, including compliance with the CEQA. 4.6.6 Partnership Agreement. Developer shall have satisfied the following requirements with respect to the Partnership Agreement: (a) Not less than ten (10) Business Days prior to each Close of Escrow, Developer shall provide, or shall cause the Qualified Tax Credit Investor to provide, the City with a copy of the draft Partnership Agreement for the Developer Affiliate to which Developer proposes to assign its interest in Developer at Close of Escrow for the applicable Phase (provided that the City shall cooperate and timely review and approve or provide comments to the Partnership Agreement following receipt of such draft and provided further that if Developer or the Qualified Tax Credit Investor shall not have submitted the Partnership Agreement to the City in accordance with this clause a), or if the City shall not have approved or shall have disapproved any of the following items prior to the earlier of the date established by the Parties for Close of Escrow for a Phase or the Outside Closing Date for such Phase, the same shall, unless otherwise agreed by the Parties, be a failure of a Closing Condition for the applicable Phase and the sole remedies of the Parties shall be the termination of this Agreement without liability to either Party in accordance with Section 15.1.3); (b) Not less than three (3) Business Days prior to the applicable Close of Escrow, Developer shall provide, or shall cause the Qualified Tax Credit Investor to provide, the City with the proposed final form of the Partnership Agreement together with a "redline" showing any and all modifications to the version of the agreement provided pursuant to clause a and may thereafter until the Close of Escrow submit to the City for review and approval any additional minor revisions to the Partnership Agreement in similar "redlined format" against the previously provided draft (provided that the City shall cooperate and timely review and approve or provide comments to the Partnership Agreement following receipt of such draft(s) and provided further that if Developer or the Qualified Tax Credit Investor shall not have submitted the revised Partnership Agreement to the City in accordance with this clause (b), or if the City shall not have approved or shall have disapproved the Partnership Agreement prior to the earlier Tustin Jamboree Parcel IA DDA 27 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) of the date established by the Parties for Close of Escrow for a Phase or the Outside Closing Date for such Phase, the same shall, unless otherwise agreed by the Parties, be a failure of a Closing Condition for the applicable Phase and the sole remedies of the Parties shall be the termination of this Agreement without liability to either Party in accordance with Section 15.1.3); (c) The final form of the Partnership Agreement shall be approved by the City in its sole discretion prior to Close of Escrow and shall be consistent with the Updated Financing Plan approved by the City pursuant to Section 4.6.2(a) and the terms and conditions of this Agreement and the Required Agreements; and (d) Each Partnership Agreement (or other documents provided by Qualified Tax Credit Investor for the benefit of the City and approved by the City in its sole discretion) shall provide evidence that the Qualified Tax Credit Investor has provided Developer with a binding contractual commitment to invest sufficient equity, when combined with the other sources and uses set forth in the applicable Updated Financing Plan approved by the City to fund all Development Costs for the applicable Phase as described in the Updated Financing Plan for such Phase including Developer's costs and expenses necessary to obtain the Entitlements and to comply with the other obligations of Developer under this Agreement required to be satisfied prior to the Phase 1 Property Close of Escrow, or the Phase 2 Property Close of Escrow, as applicable, lease, pursuant to the applicable Ground Lease, the applicable portion of the Property; payment of all Development Costs and all costs for marketing, management, maintenance and lease of Units and Developer's costs and expenses to perform and satisfy all the covenants of the Developer with respect to the applicable Phase of the Property contained in this Agreement and the Other Agreements. 4.7 Organizational Documents. Prior to or concurrently with the execution of this Agreement by Developer, Developer shall have delivered to the City true and correct copies of (i) a certificate of formation, and limited partnership agreement or operating agreement, as applicable, of Developer (including any amendments thereto); (ii) copies of all resolutions or other necessary actions taken by Developer or its Controlling Person to authorize the execution of this Agreement and any other documents or instruments required by this Agreement; (iii) a certificate of status issued by the California Secretary of State within thirty (30) calendar days of the Effective Date; (iv) an incumbency certificate, and (v) a copy of any Fictitious Business Name Statement if any, as published and filed with the Clerk of Orange County. 5. Developer's Due Diligence Investigation. 5.1 Due Diligence Period. The Developer's obligation to consummate this transaction shall be contingent upon Developer's approval, in Developer's sole discretion, of the results of such inspection, examination and other due diligence with regard to the Property and its suitability for construction of the Project as Developer may elect to conduct during the period commencing on the Effective Date and ending on the date which is the later of (a) one hundred and twenty (120) calendar days following the Tustin Jamboree Parcel IA DDA 28 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Effective Date at 4:00 P.M. Pacific Time or (b) sixty (60) calendar days from the date of issuance by the Navy of the PERF (the "Due Diligence Period"). Developer acknowledges and agrees that the Due Diligence Period is adequate time to complete such investigation. As further described in Section 5.2, Developer may give City written notice (the "Diligence Notice") on or before the end of the Due Diligence Period stating whether Developer elects to terminate this Agreement or waive its due diligence contingency and proceed to the Close of Escrow, which election shall be made in the same manner for both Phases, subject to the other terms and conditions set forth in this Agreement. 5.2 Termination of Agreement. If Developer elects to terminate this Agreement on or before the end of the Due Diligence Period or pursuant to its termination rights set forth in Section 6.2, this Agreement shall automatically terminate on the date of such election and thereafter neither Party shall have any further obligations under this Agreement (subject to the provisions that expressly survive the termination of this Agreement). In such event the City shall retain the Independent Contract Consideration and Developer shall pay to the Escrow Holder all title and escrow cancellation fees of Escrow Holder. If Developer fails to give the Diligence Notice on or before the end of the Due Diligence Period, then Developer will be deemed to have disapproved the Due Diligence matters and shall be deemed to have elected to terminate this Agreement. 5.3 Limited License. Subject to approval by the Navy of a Project Environmental Review Form with respect to access to and soil testing of the LIFOC Areas ("PERF"), the City grants to Developer, for use by Developer and the Developer Representatives, a limited and revocable license to enter upon the Site for purposes of (a) conducting Developer's due diligence inspection and/or (b) obtaining data and making surveys and tests necessary to carry out this Agreement, provided that, prior to the effectiveness of such license, Developer shall: (i) deliver to the City written evidence that Developer has procured the insurance required for such license under Sections 11.1 and 11.2; (ii) give the City twenty-four (24) hours telephonic, electronic mail or written notice of any intended access which involves work on the Site or may result in any impairment of the use of the Site or any portion thereof or any adjacent property by any then -current owners, occupants, or contractors; (iii) access the Site and any improvements thereon in a safe manner; (iv) conduct no environmental testing, sampling, invasive testing, or boring without the written consent of the City (not to be unreasonably either withheld, conditioned or delayed by action of the City); (v) not authorize any dangerous or hazardous condition to be created or caused on the Site; (vi) comply with all Governmental Requirements and obtain all permits required in connection with such access; and (vii) conduct inspections and testing during normal business hours and only after obtaining the City's prior consent if required under this Section 5.3, which shall not be either unreasonably withheld, conditioned, or delayed by action of the City. This limited license shall commence on the Effective Date, may be revoked by the City during the continuation of any Default by Developer, or upon termination of this Agreement by any Party, and shall be automatically revoked and terminated upon the earlier to occur of (a) termination of this Agreement including pursuant to delivery of a Diligence Notice by Developer electing to terminate Agreement, (b) the first Close of Escrow; or (c) January 15, 2021; provided that this limited license shall not be used for construction purposes, and an Access License from the City shall be required prior to commence of grading and construction of Improvements on any portion of Tustin Jamboree Parcel IA DDA 29 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) the Property upon which such construction is proposed that is not then under ground lease to Developer. 5.4 Indemnity. Developer, on behalf of itself and its successors and assigns, hereby agrees to protect, indemnify, defend and hold harmless the City Indemnified Parties from and against any and all Claims arising during the term of the limited license described in Section 5.3, to the extent arising from or related to: (a) the acts and omissions of Developer and/or the Developer Representatives arising from or related to the presence, activities or work on or use of the Site or from the exercise of the license provided in Section 5.3 by Developer or the Development Representatives, including with respect to any inspections, surveys, tests, Investigations and studies carried out by Developer or the Developer Representatives on the Site or on adjacent properties as part of the work plan or investigation, (b) entry onto the Site by Developer or the Developer Representatives in connection with this Agreement, (c) bodily injury to or death of any person (including any employee or contractor of the City Indemnified Parties) or damage to or loss of use of property resulting from such acts or omissions of Developer or any Developer's Representative in connection with this Agreement, and (d) a Release of Hazardous Materials existing on the Site prior to Close of Escrow caused by the acts of Developer or any Developer Representatives; provided that the foregoing indemnity shall not apply to (1) the extent caused by the gross negligence or willful misconduct of the City or any City Indemnified Party; or (2) the discovery by Developer of any pre-existing environmental conditions on the Site not caused by or contributed to by Developer or the Developer Parties. Developer shall keep the Site free and clear of all Construction Liens related to Developer's inspection and/or Investigation of the Site. The indemnification by Developer set forth in this Section 5.4 shall survive (A) each Close of Escrow and shall not be merged into any Ground Lease, and (B) any termination of this Agreement prior to the occurrence of the second Close of Escrow. Nothing in this Section shall in any way limit or relieve Developer from its obligations, covenants and indemnities under this Agreement or the Other Agreements with respect to any Phase arising following the Close of Escrow for such Phase. 5.5 Review of Certain Records and Materials. The City shall, within ten (10) Business Days of the Effective Date provide Developer with copies of all plans, reports, studies, investigations and other materials the City may have in its possession that are pertinent to the Property and/or development of the Project; provided, however, that the City makes no representation, warranty or guaranty regarding the completeness or accuracy of such plans, reports, studies, investigations and other materials except as expressly set forth in Section 3.3. Developer shall also have the right to enter the City's offices to review files and materials, including the right to examine those books, records and files of the City relating to the environmental and other condition of the Property which the City determines based upon the advice of counsel are confidential or not subject to attorney-client privilege or other privilege or disclosure rules. The City agrees to make all such books, records, and files available to Developer and Developer's attorneys, accountants, and other representatives at City Hall any time during business hours on Business Days upon reasonable notice from Developer. 5.6 Communications with City and Third Parties. Tustin Jamboree Parcel IA DDA 30 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) From and after the Effective Date, Developer and the Developer Representatives shall communicate directly with (a) the City Manager, who shall be the administrator of this Agreement on behalf of the City, and such other employees, consultants, and attorneys of the City from time to time; (b) with the City staff and staff of other public agencies; and (c) with third parties to all agreements affecting the Property in connection with Developer's proposed lease of the Property, and Developer's development of the Project. The City staff shall have the right, but not the obligation, to attend and participate in any and all meetings with other public agencies, the general public, and other interested parties with regards to the Project. Upon request of the City, Developer shall promptly provide the City with a copy of each material item of correspondence (including emails, letters, facsimiles, and any enclosures and attachments) sent to or received by Developer from third parties in connection with entitlement, community, or governmental approval of the Project. 6. Title; Survey. 6.1 Survey by Developer. Prior to the end of the Due Diligence Period, Developer at Developer's sole cost and expense, shall have obtained a survey for the Property ("Survey") prepared by a licensed surveyor ("Surveyor"), which Survey shall be certified by the Surveyor to the City, Developer and the Title Company. The Survey shall depict: (a) the boundaries of the Site and the LIFOC Areas; (b) the location of all existing improvements (if any), existing perimeter improvements (if any), easements, roads, rights-of-way and encroachments; (c) all other Permitted Exceptions susceptible to depiction on a map or survey identified by reference to the recording information applicable to the documents creating them; and (d) any portion of the Site lying within a flood hazard area. In addition, prior and as a condition to approval by the City Council of the Required Agreements, Developer shall cause its Surveyor or a licensed engineer to prepare and certify legal descriptions for the Phase I Parcel, the Phase II Parcel and the area in which the roadway and utility easements, if any, will be granted pursuant to the Easement Agreement to provide access across the Phase I Parcel to the Phase II Parcel. 6.2 Title Reports and Permitted Exceptions. 6.2.1 Preliminary Title Reports. Within thirty (30) calendar days following the Effective Date, Developer shall cause the Title Company to prepare and deliver to Developer and the City with respect to the Property a preliminary title report for each Parcel and may cause the Title Company to issue additional preliminary title reports at Developer's sole cost and expense during the Due Diligence Period (collectively, the "Preliminary Title Reports") based upon which the Title Company may issue an extended American Land Title Association Leasehold Policy for each of the Phase I Parcel and the Phase II Parcel (each, an "ALTA Policy" and collectively the "ALTA Policies") to Developer with a face amount equal to the value of the finished Improvements for the applicable Phase or such other amount as Developer may request of Title Company ("Title Policy Amount"). Developer shall review the Preliminary Title Reports and the other relevant documents referenced below, may object to matters set forth in the Preliminary Title Reports and request that the Title Company remove from the Title Policy those exceptions to title disapproved by Developer in the Preliminary Title Reports. Within forty five (45) calendar days after the Effective Date, Developer shall provide the City with a copy of the Tustin Jamboree Parcel IA DDA 31 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) most recent Preliminary Title Report for each Phase and shall specify in writing Developer's disapproval of any item or exception shown on such Preliminary Title Reports that is not acceptable to Developer ("Disapproved Exception"), together with Developer's suggested cure thereof, provided, however that Developer shall not have the right to disapprove any such item or exception if Developer has specifically consented to such item, including all exceptions arising pursuant to this Agreement. Failure of Developer to disapprove any item or exception shown on any such Preliminary Title Report on or before the expiration of such forty five (45) calendar day period shall be deemed to be an approval of the matters set forth in such Preliminary Title Report. The provisions of Section 6.2.3 shall apply with respect to such Disapproved Exceptions. The "Permitted Exceptions" to title shall include all of the following: (i) as of the last day of the Due Diligence Period, all matters set forth on the Preliminary Title Reports, set forth on the Survey, and not otherwise deleted by the Title Company from the Preliminary Title Reports nor endorsed over by the Title Company or removed; (ii) the Other Agreements; (iii) all covenants, restrictions and encumbrances, liens, exceptions, leases, restrictions, deed restrictions and qualifications expressly set forth in or contemplated by this Agreement and the Other Agreements and (iv) all matters described in Section 6.2.3 as Permitted Exceptions. Notwithstanding anything to the contrary in this Agreement, the City shall deliver the Property to Developer free and clear of all monetary liens other than liens for real property taxes that are not yet delinquent. 6.2.2 Supplemental Title Reports. If, the Title Company discloses additional matters that affect title to a Parcel after the conclusion of the initial period of title review described by Section 6.2.1, then within ten (10) calendar days after Developer's receipt of any supplemental report disclosing such matters issued by the Title Company (a "Supplemental Title Report"), Developer shall provide the City a copy of such Supplemental Title Report and shall specify in writing Developer's disapproval of any item or exception shown on such Supplemental Title Report not previously included in the Preliminary Title Reports and that is not acceptable to Developer ("Disapproved Exception"), together with Developer's suggested cure thereof, provided, however that Developer shall not have the right to disapprove any such item or exception if (a) Developer has specifically consented to such item, including all exceptions arising pursuant to this Agreement and all matters appearing on the Preliminary Title Reports and not disapproved by Developer prior to the expiration of the Due Diligence Period. Failure of Developer to disapprove any item or exception shown on any such Supplemental Title Report on or before the expiration of such ten (10) calendar day period shall be deemed to be an approval of the matters set forth in such Supplemental Title Report. The provisions of Section 6.2.3 shall apply with respect to such Disapproved Exceptions. 6.2.3 Effect of Disapproval of Exceptions. If Developer designates a Disapproved Exception within the time periods required by Section 6.2.1 or 6.2.2, as applicable, Developer shall specify in writing its reason for such disapproval, and the City shall have the right, but not the obligation, to (x) remove or cure the Disapproved Exception to the reasonable satisfaction of Developer, or (y) subject to the last sentence of Section 6.2, elect not to cure such Disapproved Exception. If the City fails to notify Developer of the City's election to remove or cure such Disapproved Exception within ten (10) calendar days after the City's receipt of Developer's notice of disapproval, the City shall be deemed to have elected not to cure such Disapproved Exception. If the City elects or is deemed to have elected not to cure any such Disapproved Exception then Developer's exclusive remedy shall be: (i) to accept such Disapproved Exception and proceed to Close of Escrow for the applicable Phase in the manner set Tustin Jamboree Parcel IA DDA 32 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) forth in this Agreement and without either deduction or offset to amounts due under this Agreement or the Ground Leases, and waive such Disapproved Exception without cause of action hereunder against the City, or (ii) to provide written notice to the City within five (5) calendar days after the City's election or deemed election, of Developer's election to terminate this Agreement and the Escrow, in which case Developer shall pay to the Escrow Holder Developer's share of any title and escrow cancellation fees of Escrow Holder. The Developer's failure to provide the City within said five (5) calendar day period with written notice of either Developer's acceptance of such Disapproved Exception or Developer's election to terminate this Agreement shall constitute Developer's acceptance of such Disapproved Exception and its election not to terminate this Agreement under the foregoing clause (ii). In the event Developer shall not have terminated this Agreement under clause(ii) of the preceding sentence, then all matters and exclusions or exceptions from title insurance coverage shown in the Preliminary Title Reports and any Supplemental Title Reports which Developer shall have accepted pursuant to this Section 6.2.3 (other than those which the City has agreed to cure as provided in this Section 6.2.3), together with all Permitted Exceptions described in Section 6.2 shall be deemed "Permitted Exceptions". 6.3 ALTA Policy; Endorsements. Developer shall pay for all costs attributable to the ALTA Policy in the amount of the Title Policy Amount and the cost of any endorsements that Developer requires, and the cost of a lender's policy of title insurance, if any. The title policies obtained by Developer are collectively referred to as "Developer Title Policy." 7. Closing. 7.1 Time and Place of Closing. 7. 1.1 Closing Date. The Close of Escrow for each Phase shall take place on the later of the following dates (such later date, as to each Phase shall be the "Closing Date" for such Phase) with respect to the applicable Phase: (a) ten (10) Business Days following the last to occur of the satisfaction of Developer Closing Conditions for the applicable Phase set forth in Sections 7.2.1(d), (e), (g), (h), and i), hereof and the City Closing Conditions for the applicable Phase set forth in Section 7.2.2(c), (f), (g), (h), (i), (j), (k) and (1)(or the waiver thereof by the applicable Party); and (b) for the applicable Phase, the satisfaction or concurrent satisfaction of the City Closing Condition set forth in Section 7.2.2(d) and Developer Closing Condition set forth in Section 7.2.1(i) (or the waiver thereof by the applicable Party) provided, however, in no event shall Developer be obligated to close unless it has received at least ten (10) Business Days advance notice from the City of the anticipated date for satisfaction of such Closing Conditions. 7.1.2 Outside Closing Date. Notwithstanding Section 7.1.1, this Agreement shall terminate as to Phase I in the event that the Phase I Close of Escrow has not occurred on or before January 15, 2021, which date shall not be extended for Force Majeure Delay ("Phase I Outside Closing Date") and shall terminate as to Phase 11 in the event that the Phase 11 Close of Escrow has not occurred on or before January 15, 2021, which date shall not be extended for Force Majeure Delay ("Phase II Outside Closing Date"). Tustin Jamboree Parcel IA DDA 33 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 7.1.3 Termination of Agreement. For purposes of clarity, in the event that the any Close of Escrow does not occur on or prior to the applicable Outside Closing Date, then, subject to the provisions of Article 15 or any agreement by the Parties (in their sole and absolute discretion) to extend the Outside Closing Date, this Agreement shall as to such Phase, terminate on the Outside Closing Date for such Phase. 7.1.4 Phase I Close of Escrow Must Occur Concurrently with or Following Phase II Close of Escrow. With respect to the Phase I Close of Escrow, the Phase 11 Close of Escrow shall take place concurrently with or shall have taken place prior to the Phase I Close of Escrow and in no event shall the Phase I Close of Escrow take place prior to the Phase 11 Close of Escrow. 7.2 Conditions Precedent to Close of Escrow. The Close of Escrow for each Phase shall be subject to the satisfaction or waiver of all of the conditions set forth in Sections 7.2 and 7.3 with respect to the applicable Phase, and shall take place at the offices of Escrow Holder, or at such other place that the City selects. 7.2.1 Developer Closing Conditions. The Developer's obligation (a) to lease the Phase I Property and/or the Phase II Property (b) to complete all requirements for the applicable Close of Escrow is subject to and conditioned upon the satisfaction of, or Developer's express written waiver of, each of the following conditions to each Close of Escrow ("Developer Closing Conditions") for the applicable Phase on or before the applicable Closing Date: (a) Document Deliveries. Not later than two (2) Business Days prior to each Close of Escrow, the City shall have executed and delivered to Escrow Holder the following documents applicable to the Phase for which Close of Escrow will take place, in each case (where applicable) in substantially the form and substance of the instruments attached as Attachments to this Agreement, unless otherwise agreed by the Parties, each in their sole discretion: (i) unless previously Recorded, the Special Restrictions in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (ii) unless previously Recorded, the Easement Agreement, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (iii) unless previously Recorded, the Landscape Installation and Maintenance Agreement, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (iv) at the first Close of Escrow, if construction or access is required across a Parcel not then subject to a Ground Lease, an Access License, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; Tustin Jamboree Parcel IA DDA 34 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (v) the Ground Lease and the Memorandum of Ground Lease for the applicable Phase, which shall be in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, with the Memorandum of Ground Lease acknowledged and in Recordable form„ (vi) the Affordable Housing Covenant for the applicable Phase, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (vii) such proof of the City's authority and authorization to enter into the Ground Lease and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of the City to act for and/or bind the City as may be reasonably required by Title Company and/or Developer; (viii) a reaffirmation of the City's representations and warranties set forth in Section 3.3, which reaffirmation shall identify any representation or warranty which is not, or no longer is, true and correct and explaining the state of facts giving rise to the change. In no event shall the City be liable to Developer for, or be deemed to be in default under this Agreement by reason of, any breach of representation or warranty which results from any change that (i) occurs between the Effective Date and the date of Close of Escrow, and (ii) is expressly permitted under the terms of this Agreement or is beyond the reasonable control of the City to prevent. The occurrence of a change in a representation and warranty shall, if materially adverse to Developer or the Property, as determined by Developer in Developer's reasonable business judgment, constitute the non -fulfillment of the condition set forth in Section 7.2.1(f), unless such matter is cured at least one (1) Business Day prior to the applicable Close of Escrow. If, despite changes or other matters described in the City's reaffirmation certificate, the applicable Close of Escrow occurs, the City's representations and warranties set forth in Section 3.3 shall be deemed to have been modified by all statements made in such certificate; and (ix) such other documents or instruments as Escrow Holder may reasonably request to consummate the transaction contemplated in this Agreement. (b) Title Policy. The Title Company shall be in a position to issue the ALTA Policy to Developer in the amount of the Title Policy Amount and subject only to the Permitted Exceptions. (c) Leases and Contracts. Except as approved by Developer in writing or constituting a Permitted Exception, there shall exist no leases, contracts or rights of occupancy or other agreements or contracts with respect to the Property (but excluding the Memorandum of Agreement and with respect to the LIFOC Areas on the Parcels, the LIFOC, and with respect to the City -owned portions of the Property, the Federal Deed) that shall survive the Close of Escrow with respect to the applicable Parcel. (d) Entitlements. All applicable appeal periods described in clauses (a) through (g) of the definition of Entitlements shall have expired without the filing of any appeal or any such appeal shall have been resolved in favor of Developer and the Project. Tustin Jamboree Parcel IA DDA 35 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (e) Approvals and Building Permits. Developer shall (i) have obtained from the City all required approvals and permits, including site plan review, biddable plans, conditional use, subdivision, grading, improvement, landscaping, and others for the development of the Project, and (ii) be in a position to receive all required building permits for the Improvements to be constructed as shown on the Approved Plans, subject only to the payment of applicable fees required in connection with the issuance of such permits. (f) City Controlled Costs. There shall have been no material changes (other than normally scheduled fee increases) to impact fees or processing fees or charges imposed by the City or TUSD relating to the development of the Project such that such fees and charges exceed, collectively, the amounts set forth in the Updated Financing Plan approved by the City pursuant Section 4.6.2(a). (g) Construction Loan Closing. The Permitted Mortgagee for the Construction Loan and Developer shall be prepared to close the Construction Loan concurrently with the applicable Close of Escrow, and Developer shall have provided to the City written verification from Escrow Holder confirming that the deed of trust for such Construction Loan shall be recorded in conjunction with the closing of the Construction Loan has been fully executed and acknowledged and in Recordable form and deposited into Escrow by the Permitted Mortgagee for the Construction Loan, substantially in the amount set forth in the Updated Financing Plan approved by the City pursuant to Section 4.6.2(a). (h) Tax Credits. With respect to the Phase I Close of Escrow, Developer shall have obtained a preliminary reservation letter and with respect to the Phase 11 Close of Escrow, Developer shall have obtained a tax exempt bond reservation letter for Tax Credits from TCAC in an amount contemplated by Developer to develop the applicable Phase of the Project and not less than that provided for in the Updated Financing Plan for such Phase approved by the City pursuant to Section 4.6.2(a) and each such letter shall continue in full force and effect through the Closing Date for the applicable Phase. (i) Equity Investment. The Qualified Tax Credit Investor shall be prepared to contribute to Developer through Escrow, the equity funds that are required to be contributed to Developer at the applicable Close of Escrow, substantially in the amount set forth in the Updated Financing Plan for the applicable Phase approved by the City pursuant to Section 4.6.2(a). 0) Representations and Warranties. Subject to Section 7.2.1(a)(viii), the City's representations and warranties set forth in Section 3.3 shall be true and correct as of the applicable Close of Escrow. (k) Default. The City shall not be in Potential Default or Material Default of any covenant or agreement to be performed by the City under this Agreement. (1) No Casualty or Condemnation. There shall not have occurred any material casualty or condemnation with respect to the Property and no material condemnation shall be threatened with respect to the Property. Tustin Jamboree Parcel IA DDA 36 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (m) No Litigation. No litigation shall be threatened or pending which seeks to prevent the development or operation of the Project, or any part thereof, according to the terms of this Agreement. 7.2.2 City Closing Conditions. The City's obligation to deliver a Ground Lease with respect to Phase I or Phase II and to complete all requirements for the Close of Escrow applicable to either such Phase is subject to and conditioned upon the satisfaction of, or the City's written waiver of, each of the following conditions to the Close of Escrow ("City Closing Conditions") with respect to a Phase on or before the applicable Closing Date: (a) Closing Payments and Other Pam. Not later than one (1) Business Day prior to the Close of Escrow for the applicable Phase, Developer shall deliver to Escrow (i) (1) at the Phase I Close of Escrow, the sum of One Hundred Dollars ($100.00) comprising prepayment of the base rent under the Phase I Ground Lease; and (2) at the Phase 11 Close of Escrow, the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) comprising prepayment of the base rent under the Phase II Ground Lease or; (ii) the Total City Transaction Expenses for the applicable Phase as set forth in Section 1.8.2; (iii) the Project Fair Share Contribution for the applicable Phase as set forth in Section 8.5.2 and (iv) any other costs explicitly set forth in this Agreement as costs to be paid by Developer at the Close of Escrow for such Phase, including as set forth in Section 7.4. (b) Document Deliveries. Not later than two (2) Business Days prior to each Close of Escrow, Developer shall have executed and delivered to Escrow Holder the following documents applicable to the Phase for which Close of Escrow will take place, in each case (where applicable) in substantially the form and substance of the instruments attached as Attachments to this Agreement, unless otherwise agreed by the Parties, each in their sole discretion: (i) unless previously Recorded, the Special Restrictions, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (ii) unless previously Recorded, the Easement Agreement, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (iii) unless previously Recorded, the Landscape Installation and Maintenance Agreement, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (iv) the Ground Lease and the Memorandum of Ground Lease for the applicable Phase, which shall be in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, with the Memorandum of Ground Lease acknowledged and in Recordable form; (v) at the first Close of Escrow, if construction or access is required across a Parcel not then subject to a Ground Lease, an Access License, in form and Tustin Jamboree Parcel IA DDA 37 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (vi) the Affordable Housing Covenant for the applicable Phase, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, acknowledged and in Recordable form; (vii) such proof of the City's authority and authorization to enter into the Ground Lease and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of the City to act for and/or bind the City as may be reasonably required by Title Company and/or Developer; (viii) a Completion Guaranty executed by a Guarantor approved by the City in its sole discretion in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion. (ix) a reaffirmation of Developer's representations and warranties set forth in Section 3.1, which reaffirmation shall identify any representation or warranty which is not, or no longer is, true and correct and explaining the state of facts giving rise to the change. In no event shall Developer be liable to City for, or be deemed to be in default under this Agreement by reason of, any breach of representation or warranty which results from any change that (i) occurs between the Effective Date and the date of Close of Escrow, and (ii) is expressly permitted under the terms of this Agreement or is beyond the reasonable control of Developer to prevent. The occurrence of a change in a representation and warranty shall, if materially adverse to City, as determined by City in City's reasonable business judgment, constitute the non -fulfillment of the condition set forth in Section 7.2.2(d), unless such matter is cured at least one (1) Business Day prior to the applicable Close of Escrow. If, despite changes or other matters described in Developer's reaffirmation certificate, Close of Escrow for a Phase occurs, Developer's representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in such certificate; (x) a declaration certified by an officer of Developer that the documentation submitted by Developer to the City pursuant to Section 4.7 prior to the Effective Date is true and correct as of Close of Escrow together with certificates of good standing and tax good standing of Developer, issued by the California Secretary of State within thirty (30) calendar days of the applicable Closing Date; (xi) such proof of Developer's authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Developer to act for and/or bind Developer as may be reasonably required by Title Company and/or the City; (xii) with respect to a Construction Loan with a Permitted Mortgage authorized and in accordance with the terms of the Updated Financing Plan approved by the City pursuant to Section 4.6.2(a), a deed of trust and all other related documents required Tustin Jamboree Parcel IA DDA 38 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) by Permitted Mortgagee, executed by each of Permitted Mortgagee and Developer, and where required, acknowledged and in Recordable form. (xiii) The following documents in final form and in each case consistent with the requirements of this Agreement and the Other Agreements and approved by the City to the extent set forth in Section 4.6: (1) The fully executed Partnership Agreement; (2) Construction Loan documents for the Project in final form; (4) such other documents or instruments as City and Developer may agree is required to consummate the transaction contemplated in this Agreement; and (5) such other documents or instruments as Escrow Holder may reasonably request to consummate the transaction contemplated in this Agreement. (xiv) such other documents or instruments as Escrow Holder may reasonably request to consummate the transaction contemplated in this Agreement. (c) Entitlements. The City shall have approved the Entitlements (including all of the matters set forth in Section 8.3.1) and all applicable appeal and statute of limitations periods relating thereto shall have expired without the filing of any appeal or legal challenge or any such appeal or legal challenge shall have been resolved in favor of Developer and the Project. (d) Representations and Warranties. Subject to Section 7.2.2(b)(ix), Developer's representations and warranties set forth in Section 3.1 shall be true and correct as of the applicable Close of Escrow. (e) Default. Developer shall not be in Potential Default or Material Default of any covenant or agreement to be performed by Developer under this Agreement. (f) Insurance. Developer shall have submitted to the City evidence satisfactory to the City in its reasonable discretion that the insurance policies required to be obtained by Developer pursuant to Article 11 at the Close of Escrow will be effective as of the applicable Close of Escrow. (g) Financial Capability. Developer shall have satisfied the conditions precedent to Close of Escrow set forth in Sections 4.6.1 and 4.6.21 including delivery to the City of evidence of financing as required by such provisions and such evidence confirm that the Construction Loan is prepared to fund at Close of Escrow. (h) Other Deliverables. Developer shall have provided and the City shall have approved each of the deliverables described in Section 4.6. Tustin Jamboree Parcel IA DDA 39 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (i) Construction Loan Closing. The Permitted Mortgagee for the Construction Loan and Developer shall be prepared to close the Construction Loan concurrently with the applicable Close of Escrow, and Developer shall have provided to the City written verification from Escrow confirming that the deed of trust to be recorded in conjunction with the closing of the Construction Loan has been fully executed and acknowledged and in Recordable form and deposited into Escrow by the Permitted Mortgagee for the Construction Loan, substantially in the amount set forth in the Updated Financing Plan approved by the City pursuant to Section 4.6.2(a). 0) Equity Investment. The Qualified Tax Credit Investor shall be prepared to contribute to Developer, through Escrow, the equity funds that are required to be contributed to Developer at the applicable Close of Escrow, substantially in the amount set forth in the Updated Financing Plan for the applicable Phase approved by the City pursuant to Section 4.6.2(a). (k) Tax Credits. With respect to the Phase I Close of Escrow, Developer shall have obtained a preliminary reservation letter and with respect to the Phase II Close of Escrow, Developer shall have obtained a tax exempt bond reservation letter for Tax Credits from TCAC in an amount contemplated by Developer to develop the applicable Phase of the Project and not less than that provided for in the Updated Financing Plan for such Phase approved by the City pursuant to Section 4.6.2(a), and each such letter shall continue in full force and effect through the Closing Date for the applicable Phase. (1) Approvals and Building Permits. Developer shall (i) have obtained from the City all required approvals and permits, including site plan review, biddable plans, conditional use, subdivision, grading, improvement, landscaping, and others for the development of the Project, and (ii) be in a position to receive all required building permits for the Improvements to be constructed as shown on the Approved Plans, subject only to the payment of applicable fees required in connection with the issuance of such permits. (m) Phase I Closing Restrictions. With respect to the Phase I Close of Escrow, the Phase II Close of Escrow shall take place concurrently with or shall have taken place prior to the Phase I Close of Escrow and in no event shall the Phase I Close of Escrow take place prior to the Phase II Close of Escrow. (n) No Litigation. No litigation shall be threatened or pending which seeks to prevent the development or operation of the Project, or any part thereof, according to the terms of this Agreement. 7.3 Additional Close of Escrow Conditions. In addition to the provisions of Section 7.2, the Close of Escrow for each Phase shall be conditioned upon the following Closing Conditions, which shall be for the benefit of each Party: (a) Closing Cost Statement. Escrow Holder shall have delivered at least seven (7) Business Days prior to each Close of Escrow a statement of costs to each Party and at least two (2) Business Days prior to each Close of Escrow each of the Parties shall have approved such statement as being consistent with the provisions of Section 7.4 below. Tustin Jamboree Parcel IA DDA 40 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (b) Closing Certificate. Each Party shall submit to Escrow Holder a certificate stating that all Closing Conditions for its benefit have been satisfied or waived. 7.4 Procedures for Conveyance. 7.4.1 Costs and Expenses. The costs and expenses of each Close of Escrow shall be allocated as follows: (a) City's Costs. Except as provided in this Agreement, the City shall pay the fees of all consultants (including lawyers and environmental, engineering and land use consultants) engaged by it. (b) Developer's Costs. Developer shall pay (i) the entire cost of the ALTA Policy for each Phase in the amount of the Title Policy Amount or in such other amount as Developer may desire, any lender's or other title policy and any Developer Title Endorsements, (ii) the entire cost of the Survey and any additional land surveys obtained by Developer in connection with the foregoing; (iii) document recording charges for the Special Restrictions, Easement Agreement, Landscape Installation and Maintenance Agreement, Affordable Housing Covenant and all other Recorded documents; (iv) all Escrow fees and costs; (v) all documentary transfer taxes, if any, and (vi) Developer's share of prorations. Developer shall pay the fees of all consultants and employees (including lawyers and environmental, engineering and land use consultants) engaged by it. (c) Other Costs. All costs and expenses related to each Close of Escrow and the transfer of the Property to Developer not otherwise allocated in this Agreement shall be allocated between the Parties in accordance with the customary practice in Orange County, California. 7.4.2 Possession. The City shall deliver leasehold possession of the Phase I Property at the Phase I Close of Escrow and shall deliver leasehold possession of the Phase II Property at the Phase II Close of Escrow. 7.4.3 Deliveries to Developer Upon Close of Escrow. The City agrees to deliver to Developer, on or prior to the applicable Close of Escrow, outside of Escrow, the following items: (a) Records and Plans. To the extent in the City's possession, originals or copies of records and plans that will affect the applicable Property after the Close of Escrow. (b) Licenses and Permits. To the extent in the City's possession, originals or copies of all licenses and permits affecting the applicable Property. 7.4.4 Disbursements and Other Actions by Escrow Holder. At each Close of Escrow or at such later date as is specifically set forth below, and subject to the satisfaction or waiver by the benefited party of the conditions to Close of Escrow described in Sections 7.2 or 7.3 as the case may be, Escrow Holder shall promptly undertake all of the following in the manner indicated below: Tustin Jamboree Parcel IA DDA 41 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (a) Funds. Debit or credit all matters addressed in Section 7.4.1 and prorate all matters addressed in Section 7.4.4 and disburse to the City all amounts due under this Agreement with respect to the Close of Escrow for the applicable Phase (as adjusted by the foregoing debits, credits and prorations) deposited with Escrow Holder by Developer. (b) Recording. Cause to be Recorded, in the following order, the Special Restrictions, the Easement Agreement, the Landscape Installation and Maintenance Agreement, the Memorandum of Ground Lease, the Affordable Housing Covenant, and thereafter, any other documents that Developer and the City may mutually direct, or that may be required by the terms of this Agreement to be Recorded, obtain conformed copies thereof and distribute same to Developer and the City. (c) Title Policy. Direct the Title Company to issue Developer Title Policy to Developer. Concurrently with the issuance of Developer Title Policy, the Title Company shall provide Developer Title Endorsements, provided that the issuance of such Developer Title endorsements shall not be a condition to Close of Escrow except for those endorsements that the City agreed to obtain in order to cure any disapproved title exceptions or survey matters. (d) Delivery of Documents to Developer and City. Deliver to each Party original counterparts (and conformed copies, if applicable) of the Special Restrictions, the Easement Agreement, the Ground Lease, the Memorandum of Ground Lease, the Landscape Installation and Maintenance Agreement, any Access License, the Affordable Housing Covenant and any other documents (or copies thereof) deposited into Escrow by Developer or the City with respect to a Phase pursuant to the terms of this Article 7, and deliver to the Parties a certified copy of their respective Escrow closing statements. (e) Other Actions. Take such other actions as the Parties direct pursuant to mutually executed supplemental Escrow instructions. 7.4.5 Notice. All communications from the Escrow Holder shall be directed to the addresses and in the manner established in Section 17.6 for notices, demands and communications between the Parties. 8. Development of the Parcels. 8.1.1 Control of Development. Developer shall have control over the design and layout of the Horizontal Improvements and the Vertical Improvements (including height, shape and location of the Vertical Improvements and special landscaping and art features) and over the special uses to be incorporated therein, subject to the Approved Plans and Entitlements. 8.1.2 Proiect Development Costs. Within the time set forth in the Schedule of Performance, Developer shall design and construct the Project upon the Parcel at Developer's sole cost and expense, unless otherwise agreed in writing by the City in its sole discretion. Without limiting the generality of the foregoing, Developer hereby agrees that all costs associated with negotiating the ENA, this Agreement and the Other Agreements, Close of Escrow for each Phase and planning, designing, constructing, marketing and leasing the Project, preparing the Parcel and constructing all Improvements thereon including all hard costs, soft costs, the cost of services, fees, exactions, dedications, cost overruns, profit, overhead, consultants' fees, legal fees, wages Tustin Jamboree Parcel IA DDA 42 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) required to be paid to any person employed by Developer, any Transferee, contractor or subcontractor, and the costs of the Project Fair Share Contribution (collectively, the "Development Costs"), shall be the responsibility of Developer without any cost or liability to the City other than as set forth in the Updated Financing Plan for Phase II approved by the City pursuant to Section 4.6.2(a) with respect to the City Loan. 8.1.3 Compliance with Governmental Requirements and Other Requirements. The Project shall be consistent with the development concept set forth in the Scope of Development and shall be developed and maintained in accordance with this Agreement and all Governmental Requirements (as more particularly described in the statutory development agreement comprising one of the Entitlements), including the Specific Plan, the Reuse Plan, the Entitlements, the Approved Plans, the Development Permits, the Memorandum of Agreement and the Federal Deed. 8.1.4 Construction of Specific Proiect Components. (a) Horizontal Improvements. Developer shall promptly begin and thereafter diligently prosecute to Completion in accordance with the Schedule of Performance, all Horizontal Improvements when and as required by the City pursuant to the approved Subdivision Map, any Entitlement condition, Development Permit, this Agreement or any other Governmental Requirements. The Horizontal Improvements shall include development of the Common Area with the Common Area Improvements as depicted on Attachment 3. Other than the Common Area Improvements, the Horizontal Improvements may be developed in phases, at the reasonable discretion of Developer, subj ect to compliance by Developer with all Governmental Requirements such that all Horizontal Improvements required to serve such phase (including all utility, roadway, flood control and other infrastructure normally required to service a new, first class residential community in Orange County) have been Completed in accordance with the foregoing conditions and all Governmental Requirements. Notwithstanding the phasing of the Project, it is anticipated that Developer shall, as part of the construction of the Horizontal Improvements for the first Phase of the Project for which Close of Escrow takes place, be required to perform grading and construction of Horizontal Improvements for the entirety of the Site. (b) Quimby Fees and Park Fees. All fees 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. (c) Vertical Improvements. Developer shall develop the Property for residential purposes in accordance with this Agreement and the Other Agreements, regulations and/or conditions contained in the Specific Plan and any Entitlements, and in accordance with the Approved Plans, the Subdivision Map and any and all Development Permits. In developing the Project, Developer shall comply with the requirements set forth in Article 13 and the Affordable Housing Covenants. 8.2 Timing and Conditions of Proiect Development. Tustin Jamboree Parcel IA DDA 43 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 8.2.1 Schedule of Performance. The Parties shall reach agreement on a form of Schedule of Performance, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, which sets forth the schedule for development of the Project and construction of the Improvements. The Parties acknowledge and agree that, subject to Section 17.7, time is of the essence with respect to the dates set forth in the Schedule of Performance. Following conveyance of a Phase of the Property to Developer pursuant to Ground Lease, Developer shall commence and prosecute to completion all steps required by the Schedule of Performance including construction and development of the Improvements within the time specified in the Schedule of Performance. Subject to Section 17.7, the City may, in its sole discretion and upon written request from Developer, extend the time specified in the Schedule of Performance. Any such agreed upon changes shall be within the limitations of the Specific Plan, the Entitlements, and all other Governmental Requirements. To be effective, any extensions shall be requested in writing by Developer and evidenced by written notice from the City Manager or designee. 8.2.2 Phasing. The City acknowledges and agrees that the Project may be constructed and Completed in phases provided that: (i) the phases shall be clearly identified on the Design Review as such submittals may be revised and approved by the City, (ii) conditions of City approval may require certain additional Improvements to be constructed and Completed as part of the first phase of the Project, and (iii) upon Completion thereof, each phase shall comply with all Governmental Requirements including all Specific Plan requirements and Entitlement conditions of approval for development on the Property, without reliance upon Improvements to be constructed in future phases. Subject to the foregoing, the City agrees to cooperate in good faith with Developer to implement this Agreement so as to permit development of the Project in phases. 8.3 Land Use Matters. 8.3.1 Entitlements and Development Permits. Subject to Section 8.3.4, it is the responsibility of Developer, without cost to the City: (a) to process, obtain, and maintain all Entitlements; (b) to obtain all Development Permits; and (c) to assure that the design, construction, use, operation, maintenance, repair and replacement of the Improvements is carried out in accordance with the provisions of this Agreement. Nothing in this Section is intended to affect in any manner or derogate from the validity of any Entitlements and Development Permits already obtained, or obtained prior to Close of Escrow, by Developer with respect to the Property. 8.3.2 Agreement Does Not Grant Entitlements. This Agreement does not (a) grant any land use entitlement to Developer, (b) supersede, nullify or amend any condition which may be imposed by the City in its Governmental Capacity in connection with approval of the Project, (c) guarantee to Developer or any other party any profits from the development of the Property, or (d) amend any Governmental Requirements of the City. Nothing in this Agreement shall be construed or interpreted as committing the City to approve or undertake any action or review process or activities that require the independent exercise of discretion by the City, including any approval of any entitlement or permit application for which Developer applies for after the date of this Agreement. The failure of the City to issue or approve any Development Permit or Entitlement described in this Agreement shall not be a Default of the City under this Agreement. Tustin Jamboree Parcel IA DDA 44 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 8.3.3 Development Permits. The City will seek to expedite review of applications for the Development Permits where reasonably appropriate in order to meet the deadlines set forth in the Schedule of Performance and will assist and cooperate with Developer in its efforts to process such Development Permits. Without limiting any other provision of this Agreement, Developer shall pay all permit fees and other fees and costs normally charged by the City in connection with application for and review and approval of Development Permits. 8.3.4 CEQA Requirements. The Parties acknowledge and agree that the Project will comply with all applicable CEQA requirements. Developer agrees to cooperate with the City in obtaining information to determine the environmental impact of the Project, if any. Developer acknowledges that the City shall prepare any supplemental environmental information, if any, as may need to be completed in order to effect compliance with CEQA, as determined by the City in its Governmental Capacity, and Developer shall be responsible to pay all costs incurred by the City to prepare or to cause its consultants to prepare such environmental documents and shall enter into such agreements to pay such costs as the City shall require. 8.4 Additional Information. Developer understands and agrees that the City reserves the right at any time to reasonably request from Developer additional information, including information, data and commitments to ascertain the depth of the capability and desire of Developer or other equity participants, to develop the Project expeditiously, including with respect to the financial capacity of Developer and the Guarantor under the Completion Guaranty and the capability of Developer to perform its obligations under this Agreement. Developer shall use its best efforts to obtain such information as the City may reasonably request from time to time. All financial information submitted by Developer in response to request by the City shall be subject to the confidentiality provisions set forth in Section 17.24. 8.5 Backbone Infrastructure Improvements. 8.5.1 Developer Acknowledgements. Developer acknowledges and agrees that: (a) the development of the Project, together with the development of the remainder of Tustin Legacy, will contribute to the need for Tustin Legacy backbone infrastructure located off of the Parcel, including Tustin Legacy roadway improvements; traffic and circulation mitigation to support the Tustin Legacy project; domestic and reclaimed water; sewer; telemetry; storm drains and flood control channels; utilities backbone (electricity, gas, telephone, cable, telecommunications, etc.) (as such program is in effect as of the Effective Date, the "Tustin Legacy Backbone Infrastructure Program"); (b) Developer shall make a fair share contribution to development by the City of the Tustin Legacy Backbone Infrastructure Program on behalf of the Project, as further described below; (c) Developer has had an opportunity to review the budgets, plans and projections developed by the City in connection with the Tustin Legacy Backbone Infrastructure Program and the studies prepared by the City in connection therewith; (d) there is an essential nexus between the imposition on the Project of the Project Fair Share Contribution and a legitimate governmental interest; and (e) the Project Fair Share Contribution is roughly proportional to and reasonably and rationally related to the impacts that will be caused by development of the Project. 8.5.2 Proiect's Fair Share Contribution. The fair share of the Tustin Legacy Backbone Infrastructure Program to be contributed by Developer with respect to the Project shall Tustin Jamboree Parcel IA DDA 45 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) be Four Hundred Fifty Eight Thousand and Twenty Six Dollars ($458,026.00) (the "Project Fair Share Contribution"), which amount shall be paid by Developer to the City proportionately based on the number of Units in each Phase, which amount shall be as follows. Accordingly, Developer shall pay (a) at the Phase I Close of Escrow the sum of Two Hundred Sixteen Thousand Nine Hundred Fifty Nine ($216,959.00), comprising the agreed upon pro rata share of the Project Fair Share Contribution attributable to Phase I and (b) at the Phase 11 Close of Escrow, the sum Two Hundred Forty One Thousand Sixty Seven Dollars ($241,067.00) comprising the agreed upon pro rata share of the Project Fair Share Contribution attributable to Phase 11. 8.5.3 District Formation. Developer hereby acknowledges that the City has elected to fund certain portions of the Tustin Legacy Backbone Infrastructure Program through imposition community facilities district 13-01 established to finance such portions of the Tustin Legacy Backbone Infrastructure Program. The terms of CFD 13-01 provide an exemption for projects providing housing for the Phase I Units and the Phase II Units. Developer agrees that it shall fund its Project Fair Share Contribution in cash at Close of Escrow as set forth in Section 8.5.2 and waives its right to fund all or any portion of such contribution pursuant to a community facilities district or other assessment district unless otherwise agreed by Developer and City, each in its sole discretion. 8.5.4 School Impact Fees. Developer acknowledges and agrees that the Project is subj ect to imposition of state -mandated school impact fees by the Tustin Unified School District and that Developer shall pay such fees without contest. 8.5.5 Other Fees and Assessments. Developer acknowledges and agrees that in addition to City fees, fees and assessments may be imposed by other Governmental Authorities with jurisdiction over the Project and/or the Property and payment of any such fees and assessments shall be at Developer's sole cost. 8.5.6 Welfare Exemption. The City acknowledges that Developer intends to obtain the welfare exemption from property taxes afforded under section 214(g) of the California Revenue and Taxation Code. Nothing in this Agreement shall prohibit Developer from obtaining such exemption. 8.6 Construction Covenants. With respect to construction of the Improvements and the Project, Developer hereby covenants and agrees as follows on behalf of itself and its contractors: 8.6.1 The development of the Project shall be done in a professional and competent manner. Developer shall perform all work required to complete the Improvements and the Project and related work in accordance with the Approved Plans and all Governmental Requirements and at the level of quality and as otherwise set forth in the Scope of Development to be approved by the Parties, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, which sets forth the scope of development of each Phase of the Project including the details regarding the Horizontal Improvements and Vertical Improvements and construction of the Improvements. Tustin Jamboree Parcel IA DDA 46 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 8.6.2 Developer shall be responsible for the timeliness and quality of all work performed and materials and equipment furnished in connection with the Project, whether the work, materials and equipment are performed and furnished by Developer or through subcontractors, sub -subcontractors (of all tiers) and suppliers. 8.6.3 Developer shall, within thirty (30) calendar days following receipt of notice thereof, cause to be removed or bonded against (such bonding to be by the provision of bonds satisfying California statutory requirements) any and all mechanic's liens, stop notices and/or bonded stop notices that are recorded and/or served by subcontractors, sub -subcontractors (of all tiers) and suppliers in connection with the Project. Notwithstanding the foregoing, Developer may contest the amount, validity or application, in whole or in part, of any such mechanic's liens, stop notices and/or bonded stop notices; subject, however, to the further requirement that neither the Property nor any Improvements nor any part or interest in either thereof would be in any immediate danger of being sold, forfeited, attached or lost pending the outcome of such proceedings. If any such contest is finally resolved against Developer, Developer shall promptly pay the amount required to be paid, together with all interest and penalties accrued thereon. Developer hereby agrees to indemnify, defend and hold the City Indemnified Parties free and harmless from and against any and all Claims arising from failure to pay for construction of Improvements or other work related to the Project including costs to remove or bond mechanic's liens, stop notices and/or bonded stop notices that are recorded and/or served by subcontractors, sub -subcontractors (of all tiers) and suppliers with respect to construction of Improvements or performance of work with respect to the Project. The indemnity set forth in this Section shall survive the termination of this Agreement. 8.6.4 Subject to Section 8.2.1 and Section 17.71 Developer shall Complete development of the Improvements and the Project in accordance with the time periods set forth in the Schedule of Performance and in all events, on or before the dates set forth for Completion of the Project set forth in the Schedule of Performance. 8.7 City Rights of Access. In addition to any rights it may have in its Governmental Capacity, representatives of the City shall have the reasonable right of access to all portions of the Property, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, upon not less than 24 hours' prior written notice to Developer, including the inspection of the work being performed in constructing the Improvements. The City agrees to indemnify, defend and hold Developer harmless for any and all Claims, arising out of any such non-governmental inspection or other activity on the Property or the Project by the City, or its agents, employees or contractors permitted pursuant to this Section 8.7, except to the extent caused by the Active Negligence, gross negligence or willful misconduct of Developer. 8.8 Disclaimer of Responsibility by City and Exculpation. 8.8.1 Disclaimer of Responsibility. The City neither undertakes nor assumes nor will have any responsibility or duty to Developer, any Successor Lessee or to any other third party to review, inspect, supervise, pass judgment upon or inform Developer, any Successor Lessee or any third party of any matter in connection with the development or construction of Tustin Jamboree Parcel IA DDA 47 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Improvements, whether regarding the quality, adequacy or suitability of the plans, any labor, service, equipment or material furnished for development of the Project, any Person furnishing same, or otherwise. The Developer, any Successor Lessee and all third parties shall rely upon its or their own judgment regarding such matters, and any review, inspection, supervision, exercise of judgment or information supplied to Developer, any Successor Lessee or to any third party by the City in connection with such matter is for the public purpose of developing the Project, and neither Developer nor any Successor Lessee nor any third party is entitled to rely thereon. 8.8.2 Exculpation. The City shall not be liable in damages to Developer or to any lessee, licensee, consultant or other Person, on account of (a) any approvals or disapproval by the City, including by the City Manager or designee whether made in the Governmental Capacity or Proprietary Capacity of the City of any design documents, whether or not defective or whether or not in compliance with applicable laws or ordinances; (b) any construction, performance or nonperformance by Developer or any lessee, licensee, consultant or other Person of any work on the Property, whether or not pursuant to Approved Plans or whether or not in compliance with applicable laws or ordinances; (c) any mistake in judgment, negligence except an act of gross negligence), action (except an act of willful misconduct) or omission in exercising its rights, powers and responsibilities hereunder; and/or (d) the enforcement or failure to enforce any of the provisions of this Agreement. Every Person who makes design submittals for approval agrees by reason of such submittal, and Developer and every Successor Lessee of the Property or any portion thereof agrees by acquiring title thereto or an interest therein, not to bring any suit or action against the City seeking to recover any such damages and expressly waives any such claim or cause of action for such damages which it would otherwise be entitled to assert. The review of any design submittals shall not constitute the assumption of any responsibility by, or impose any liability upon, the City as to the accuracy, efficacy, sufficiency or legality thereof nor decrease or diminish any liability, duties, responsibilities, or obligations of Developer under this Agreement or otherwise. The provisions of this Section shall survive the termination of this Agreement. 8.8.3 City Responsibility. Nothing in this Section 8.8 shall limit the City's express representations, warranties, covenants and obligations set forth in this Agreement and the Other Agreements. 8.9 Local, State and Federal Laws Including Prevailing Wage Laws. Developer shall carry out the construction of the Project, including all Improvements, subject to Section 8.1.4 and in conformity with all Governmental Requirements, including all applicable federal and State labor laws and regulations. Developer acknowledges the provisions of California Labor Code Section 1720 et seq. and similar requirements imposed by any applicable federal and State labor laws ("Prevailing Wage Laws") and agrees that the Prevailing Wage Laws may or may not require that Developer and its contractors or subcontractors pay the general prevailing wage rates of per diem wages and overtime and holiday wages determined by the State Department of Industrial Relations under Prevailing Wage Laws, provided, however, that Developer reserves the right to reasonably contest such laws and regulations. Developer hereby agrees that, with respect to the Project, Developer shall be fully responsible for compliance with all applicable Prevailing Wage Laws and hereby agrees to indemnify, defend and hold the City and its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns free and harmless from and against any and all Claims arising from or related to compliance Tustin Jamboree Parcel IA DDA 48 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) by Developer or Developer's officers, directors, employees, agents, representatives, consultants and/or contractors (at every tier) in construction of the Project with the Prevailing Wage Laws and shall assume all obligations and liabilities for the payment of such wages and for compliance with the provisions of the Prevailing Wage Laws brought by any Person, including the Director of the Department of Industrial Relations, contractors or subcontractors. 8.10 Taxes, Liens and Assessments. Developer shall pay when due and prior to delinquency all real estate taxes and assessments assessed and levied on or against all portions of the Property subsequent to the effective date of each Ground Lease for such Property. Developer shall not place, or allow to be placed, on its interests in the Property, Improvements, or any portion thereof, any Mortgage, encumbrance or lien not authorized by this Agreement. Nothing contained in this Agreement shall be deemed to prohibit Developer from contesting the validity or amount of any tax or assessment or any lien (subject to the requirements of Section 8.6.3) or to limit the remedies available to Developer in respect thereto. Developer hereby agrees to indemnify, defend and hold the City and its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns free and harmless from and against any and all Claims arising from failure to pay for construction of Improvements or other work related to the Project including costs to remove or bond mechanic's liens, stop notices and/or bonded stop notices that are recorded and/or served by subcontractors, sub -subcontractors (of all tiers) and suppliers with respect to construction of Improvements or performance of work with respect to the Project. The indemnity set forth in this Section 8.10 shall survive the termination of this Agreement. 8.11 Assistance with TCAC. The City agrees to strongly support the Project as local reviewing agency for Developer's application for Tax Credits submitted to TCAC and for Developer's application for tax-exempt bonds submitted to the California Debt Limit Allocation Committee ("CDLAC" ). The City agrees to hold a TEFRA Hearing in connection with Developer's application submitted to the California Debt Limit Allocation Committee in a timely manner consistent with the Schedule of Performance and to support the Project at any such TEFRA Hearing. If reasonable changes to this Agreement are required in order to comply with the requirements of TCAC, the City agrees to effectuate such changes in order to be in compliance with the requirements, provided that such changes shall be at no cost to City and shall not adversely affect the rights of the City under this Agreement. The City Manager is authorized, without further approval of the City, to make changes to this Agreement and the Related Materials as required to satisfy the requirements described herein. 8.12 Notice of TUSD CFD. Prior to Close of Escrow for either Phase, the City shall use good faith efforts to provide to Developer a copy of each written notice it receives from TUSD that provides notice to the City that TUSD is commencing a process for approval of a community facilities district that would, if adopted, impose additional assessments on the Property or the Project. Tustin Jamboree Parcel IA DDA 49 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 9. Certificate of Compliance. 9.1 Completion; Schedule of Performance. Subject to Section 17.7, following the Close of Escrow, Developer shall construct the Project and satisfy all Conditions Precedent relating to issuance of a Certificate of Compliance for the Project when and as required by this Agreement in accordance with the Schedule of Performance. 9.2 Conditions Precedent to Issuance of Certificate of Compliance. 9.2.1 Issuance. After (a) Completion of all construction and development required to be undertaken by Developer in conformity with this Agreement and in accordance with the Schedule of Performance and (b) satisfaction by Developer of the Conditions Precedent set forth below, in each case to the satisfaction of the City in its reasonable discretion, the City shall deliver to Developer or Successor Lessee having the leasehold interest in the Ground Lease for a Phase, upon request therefor by Developer or such Successor Lessee, (i) a Partial Certificate of Compliance in Recordable form upon satisfaction of the Conditions Precedent to issuance thereof set forth in Section 9.2.2 (a), (b),(c),(d),(e), (fl and u�) and (ii) a Final Certificate of Compliance in Recordable form upon satisfaction of the Conditions Precedent to issuance thereof set forth in Section 9.2.2 (a), (b),(c),(d),(e),(f) and (u). Each Certificate of Compliance shall be in the form and substance of the Certificate of Compliance agreed to by the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, and shall be in such form as to permit it to be Recorded. 9.2.2 Conditions Precedent. The City shall not be obligated to issue a Partial Certificate of Compliance or the Final Certificate of Compliance, unless and until each of the following has occurred (the "Conditions Precedent"): (a) final inspection of the Property by or on behalf of the City and determination by the City that all Improvements required in connection with the Project, have been Completed in conformance with this Agreement, including the Approved Plans and all Governmental Requirements; (b) issuance of a certificate of substantial completion for the Improvements on the applicable Parcel by the Project Architect; (c) issuance of final certificates of occupancy by the City for all buildings within the applicable Phase of the Project, including for all Units; (d) with respect to the applicable Parcel and all Improvements constructed as part of the applicable Phase, release or bonding in accordance with California law of all liens or rights to record liens from the general contractor and all subcontractors having served valid preliminary 20 -day notices, and the statutory period for filing liens having expired; (e) payment by Developer to the City of all funds then owing to the City under this Agreement and, if applicable, the Other Agreements; Tustin Jamboree Parcel IA DDA 50 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (f) the Construction Loan may remain in effect, provided that in such event there shall be no default then occurring under the Construction Loan or related agreements nor shall there be any facts and circumstances which, with the passage of time, would become defaults under the Construction Loan and related agreements; (g) no Potential Default or Material Default by Developer shall have occurred and be continuing; and (h) Developer shall have timely complied with all obligations of Developer under the Access License granted by the City with respect to the applicable Phase, if any, and the Access License shall have terminated in accordance with its terms. 9.3 Conclusive Presumption. Each Certificate of Compliance shall be, and shall so state, conclusive determination of satisfactory completion of the obligations of Developer pursuant to this Agreement with respect to the Phase for which it is issued. 9.4 Not Evidence. Issuance by the City of a Certificate of Compliance shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any insurer of a Mortgage securing money loaned to finance the Improvements, nor any part thereof. Such Certificate of Compliance is not notice of completion as referred to in Section 8182 of the California Civil Code. 9.5 Effect of Certificate of Compliance; Termination of Agreement. After the Recording of a Certificate of Compliance, any Person then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Parcel shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement with respect to such Improvements, except that such Party shall continue be bound by the Ground Leases, the Special Restrictions, the statutory development agreement approved in connection with the Project, the Landscape Installation and Maintenance Agreement, the Affordable Housing Covenants and Ground Leases. Issuance of the Certificate(s) of Compliance shall not waive any rights or Claim that the City may have against any party for latent or patent defects in design, construction or similar matters under any applicable law, nor shall it be evidence of satisfaction of any of Developer's obligations to others not a Party to this Agreement. Each Certificate of Compliance shall be in such form as to permit it to be Recorded. 9.6 City Obligations. The City shall not unreasonably withhold or delay issuance of a Certificate of Compliance. If the City refuses or fails to issue either the Partial Certificate of Compliance or the Final Certificate of Compliance after written request from the Developer, provided each of the conditions established in Section 9.2.2 applicable thereto have been satisfied, the City shall, within ten (10) Business Tustin Jamboree Parcel IA DDA 51 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Days of the written request, provide a written statement which details the reasons the City refused or failed to issue the Certificate of Compliance. 10. Indemnification and Environmental Provisions. 10.1 Developer's Indemnification. As a material part of the consideration for this Agreement, effective upon Close of Escrow, and to the maximum extent permitted by law, Developer shall indemnify, protect, defend, assume all responsibility for and hold harmless the City and its appointed and elected officials, agents, attorneys, affiliates, employees, contractors and representatives (collectively referred to as the "City Indemnified Parties"), with counsel reasonably acceptable to the City, from and against any and all Claims to the extent caused by the following: (a) The Developer's marketing, lease or use of the Property in any way; (b) All acts and omissions of Developer in connection with the Project, the Property, or any portion of any of the foregoing; (c) Any plans or designs for Improvements prepared by or on behalf of Developer, including any errors or omissions with respect to such plans or designs; (d) Any loss or damage to the City resulting from any material inaccuracy in or breach of any representation or warranty of Developer, or resulting from any Default, by Developer, under this Agreement; and (e) Any development or construction of any Improvements by Developer, whether regarding the quality, adequacy or suitability of the plans, any labor, service, equipment or material furnished to the Property, any Person furnishing the same, or otherwise. Notwithstanding the foregoing, the foregoing indemnity shall not apply to the extent of the active negligence or willful misconduct of any of the City Indemnified Parties or any breach of any of the City's representations or warranties set forth in Section 3.3 or other covenants or obligations of this Agreement or the Other Agreements. 10.2 Environmental Indemnity. As a material part of the consideration for this Agreement and the agreement by City to enter into any Ground Lease, and effective as to the Property and any portion thereof, upon Developer's acquisition of fee title to all or any portion thereof, Developer on behalf of itself and Successor Lessees and each and every Person claiming by, through or under Developer or any Successor Lessee, hereby agrees that Developer and each Successor Lessee shall, to the maximum extent permitted by law, indemnify, protect, defend (with counsel reasonably acceptable to the City), assume all responsibility for and hold harmless the City Indemnified Parties from and against any and all Claims resulting or arising from or in any way connected with the existence, Release, threatened Release, presence, storage, treatment, transportation and/or disposal of any Hazardous Materials on, in, under, from, about or adjacent to any portion or portions of said lands, regardless whether any such condition is known or unknown now or upon acquisition and regardless whether Tustin Jamboree Parcel IA DDA 52 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) any such condition pre-exists acquisition or is subsequently caused, created or occurring, provided, however, that neither Developer nor any Successor Lessee shall be responsible for (and such indemnity shall not apply to the extent of ) the gross negligence, Active Negligence or willful misconduct of the City Indemnified Parties, any breach of any of the City's representations or warranties set forth in Section 3.3 or other covenants or obligations of this Agreement or the Other Agreements relating directly to environmental matters. This environmental indemnity shall run with the land, shall be included in the Special Restrictions and shall be binding upon Developer and Successor Lessees; provided, however, that such indemnity shall not be binding upon tenants under Unit Leases and shall not be deemed to limit in any manner the rights and/or remedies that Developer may have against the Federal Government. Notwithstanding anything contained herein, and without limiting Developer's obligations to indemnify the City under this Agreement, the City agrees that with respect to any Claims tendered to Developer or Successor Lessee by the City Indemnified Parties, the City Indemnified Parties shall tender such Claim concurrently with the insurer with respect to the environmental insurance policy required pursuant to Section 11. 1.4 and shall thereafter use reasonable commercial efforts to prosecute its Claim for coverage with such insurer. Developer or Successor Lessee shall use best efforts to prosecute such Claim with such insurer on behalf of the City. If after six months, despite such efforts, insurance proceeds are not available to cover all or a portion of the Claim or if such Claim is earlier denied by the insurance carrier, Developer shall promptly pay to the City Indemnified Parties the Claim amounts not then covered by the environmental insurance policy. Developer shall assist and cooperate with the City in its tender of Claims as required by this Section and shall pay in accordance with the indemnity obligations of Developer, all staff and third party costs incurred by the City pursuant to this Section. 10.3 Duration of Indemnities. The indemnities set forth in this Article 10 shall become effective as to each Phase upon the Close of Escrow with respect to that Phase, and shall survive each Close of Escrow to the extent set forth herein and in the Ground Leases and/or the Special Restrictions. 10.4 Claim Response. In the event that as to a Phase, following the Close of Escrow for such Phase, any Environmental Agency or other third party brings, makes, alleges, or asserts a Claim, arising from or related to any actual, threatened, or suspected Release of Hazardous Materials on or about the Property, including any Claim for Investigation or Remediation on the Property, or such Environmental Agency or other third party orders, demands, or otherwise requires that any Investigation or Remediation be conducted on the Property, Developer shall promptly upon its receipt of notice thereof, notify the City in writing and thereafter shall promptly and responsibly respond to such Claim. Further, upon receipt of such Claim, order, demand or requirement, Developer shall take such reasonable measures, as necessary or appropriate, to reasonably dissuade such Environmental Agency or other third party from bringing, making, alleging, or asserting any Claim against the City arising from or related to any actual, threatened, or suspected Release of Hazardous Material on or about the Property, including any Claim for Investigation or Remediation on the Property provided, however, that Developer shall have no obligation pursuant to this sentence with respect to any Claim, order, demand or requirement arising from or related to any actual, threatened or Tustin Jamboree Parcel IA DDA 53 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) suspected Release of Hazardous Material to the extent caused by the gross negligence or willful misconduct of the City Indemnified Parties. 10.5 Release Notification and Remedial Actions. If, after Close of Escrow, any Release of a Hazardous Material is discovered on the Property Developer (a) shall promptly provide written notice (or in the event of emergency, telephonic notice, followed by written notice) of any such Release to the City and the Navy and (b) without prejudice to Developer's or the City's rights against any responsible party or against the Federal Government pursuant to Section 330, Fiscal Year 1993, National Defense Authorization Act Public Law 102-484, and without compromising the applicability of any insurance coverage required pursuant to this Agreement in regard to such Release, shall (i) Remediate the Release in compliance with and to the extent required by Environmental Laws, or if such removal is prohibited by any Environmental Laws, take actions as may be reasonably required by any Environmental Law; (ii) take such other reasonable action as is necessary to have the full use and benefit of the Property as contemplated by this Agreement; and (iii) provide the City and the Navy with reasonably satisfactory evidence of the actions taken as required in this Section, and (c) to the extent such Release was caused by anyone other than Developer or a Developer Representative, may pursue rights that Developer has against such Person that caused such Release. The foregoing shall not apply with respect to Releases of Hazardous Materials caused by the gross negligence, Active Negligence or willful misconduct of the City Indemnified Parties. The City and Developer will coordinate any action required under this Section 10.5 with appropriate environmental insurance carriers as set forth in Section 10.2. Nothing set forth herein requires Developer to perform any obligation of the Federal Government or the Navy and nothing set forth herein shall be deemed to limit or impair (or take any action that might limit or impair) in any manner the rights and/or remedies that Developer or the City may have against the Federal Government or the Navy or any other rights and/or remedies of Developer. 10.6 Conflict with Section 330 and Other Federal Government Obligations. Notwithstanding anything to the contrary contained in this Article 10, in the event that any actions required to be taken by Developer pursuant to this Article could potentially result in Developer losing rights, or are contrary to any rights, which it otherwise would have pursuant to Section 330, Fiscal Year 1993, National Defense Authorization Act Public Law 102-484 or otherwise against the Navy or the Federal Government, then the City and Developer shall meet in order to determine the proper course of action to be taken by Developer. The course of action to be agreed upon shall protect the City's interest in the Project and Tustin Legacy, while retaining for Developer its rights pursuant to Section 330 or otherwise against the Navy or the Federal Government to the maximum extent reasonable under the circumstances. Notwithstanding the foregoing, nothing set forth in this Section 10.6 relieves Developer with respect to Developer's environmental responsibilities and obligations and environmental indemnification of Developer to the City in this Agreement. Tustin Jamboree Parcel IA DDA 54 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 11. Insurance. 11.1 Required Insurance. Without limiting the City's rights to indemnification, Developer shall procure and maintain, at its own cost and expense, and furnish or cause to be furnished to the City, evidence of the following policies of insurance (complying with the requirements set forth below and such evidence shall be in a form mutually acceptable to both Parties) naming Developer as insured and, except for automobile insurance and workers' compensation insurance, the City as additional insured. Unless otherwise specified below, such insurance shall be obtained by Developer upon the Close of Escrow and shall be kept in force with respect to and through issuance of a Certificate of Compliance for each Phase for which a Close of Escrow takes place and for such additional period of time as may be required by the Ground Lease for such Phase. 11.1.1 Liability Insurance. Developer shall maintain or cause to be maintained commercial general liability insurance, to protect against loss from liability imposed by law for damages on account of personal injury, including death therefrom, suffered or alleged to be suffered by any Person or Persons whomsoever on or about the Property and the business of Developer on the Property, or in connection with the operation thereof, resulting directly or indirectly from any acts or activities of Developer or anyone directly or indirectly employed or contracted with or acting for Developer, or under its respective control or direction, and also to protect against loss from liability imposed by law for damages to any property of any Person occurring on or about the Property or related to the Project and the business of Developer on the Property, or in connection with the operation thereof, caused directly or indirectly by or from acts or activities of Developer or any Person acting for Developer, or under its control or direction. Such insurance shall also provide for and protect the City against incurring any legal cost in defending Claims for alleged loss. The amount of insurance required hereunder shall include comprehensive general liability and personal injury with limits of at least Five Million Dollars ($5,000,000.00) and automobile liability with limits of at least Two Million Dollars ($2,000,000.00) combined single limit per occurrence. The insurance shall be issued by a company authorized by the Insurance Department of the State of California and rated A -VII or better (if an admitted carrier) or A -X (if offered, by a surplus line broker), by the latest edition of Best's Key Rating Guide, except that the City will accept workers' compensation insurance rated B -VIII or better or from the State Compensation Fund. Subject to the prior approval of the City Attorney and City Risk Manager, such insurance may be provided by an umbrella insurance policy otherwise meeting the requirements of this Article 11. An ACORD certificate evidencing the foregoing and providing the following endorsements signed by the authorized representative of the underwriter and approved by the City shall be delivered within seven (7) Business Days following the Effective Date and annually (upon request from the City) evidencing renewals of each policy until issuance of a Final Certificate of Compliance for the Project and as further required by any Ground Lease during its term. The endorsements shall provide as follows: (a) designate "the City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective elected and appointed officials, agents, representatives and employees" as additional insureds on the commercial general liability policies; (b) the commercial general liability insurance coverage shall be primary, and not contribute with any insurance or self-insurance maintained by the City, and (c) a waiver of subrogation for the Tustin Jamboree Parcel IA DDA 55 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) benefit of the City. The procuring of such insurance and the delivery of policies, certificates or endorsements evidencing the same shall not be construed as a limitation of Developer's obligation to indemnify the City Indemnified Parties as set forth herein. 11.1.2 Workers' Compensation Insurance. Developer shall obtain, and thereafter maintain or cause to be maintained, workers' compensation insurance issued by a responsible carrier authorized under the laws of the State of California to insure employers against liability for compensation under the workers' compensation laws now in force in California, or any laws hereafter enacted as an amendment or supplement thereto or in lieu thereof. Such workers' compensation insurance shall cover all Persons employed by Developer in connection with the Project and shall cover liability within statutory limits for compensation under any such act aforesaid, based upon death or bodily injury claims made by, for or on behalf of any Person incurring or suffering injury or death in connection with the Project or the operation thereof by Developer. Notwithstanding the foregoing, Developer may, in compliance with the laws of the State of California and in lieu of maintaining such insurance, self -insure for workers' compensation in which event Developer shall deliver to the City evidence that such self-insurance has been approved by the appropriate State authorities. Developer shall also furnish (or cause to be furnished) to the City evidence satisfactory to the City that any contractor with whom it has contracted for performance of work on the Property or otherwise pursuant to this Agreement carries workers' compensation insurance required by law. The insurance policy, by endorsement signed by an authorized representative of the underwriter, shall contain a waiver of subrogation. 11.1.3 Builder's Risk Insurance. Commencing upon the construction by Developer of any Improvements for a Phase and continuing until such time as the City delivers a Certificate of Compliance for such Phase, Developer shall obtain, or shall cause its contractor to obtain, and thereafter maintain a builder's risk policy with respect to such improvements or maintain comparable coverage through a property policy. Such insurance shall be maintained in an amount not less than one hundred percent (100%) of the full insurable value of the Improvements. 11.1.4 Environmental Insurance. Each Ground Lease shall require that Developer shall obtain and shall thereafter maintain environmental and pollution legal liability insurance coverage for the Property that is subject to the Ground Lease, including coverage for loss, remediation expense and legal defense expenses, and naming the City as additional insured to address pollution risks at the Property. Such policy shall comply with the following in a form mutually reasonably acceptable to the Parties: (a) the policy shall be written by the insurance company selected by Developer and approved by the City, which approval shall not be unreasonably withheld; (b) The policy shall provide Five Million Dollars ($5,000,000) in coverage subject to a maximum One Million Dollar ($1,000,000) deductible per claim, to protect against claims and loss from liability relating to known and unknown conditions on the Property for a 5 -year term with an extended reporting period of at least 24 months and containing coverage substantially equivalent to that currently in the City's Environmental Insurance Policy(s); and Tustin Jamboree Parcel IA DDA 56 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (c) The policy shall be paid for in full at the time of issuance and shall be endorsed as non -cancelable by Developer without the written consent of the City in its sole discretion to such cancellation. 11.2 General Insurance Requirements. 11.2.1 For all policies or certificates, an authorized representative of the underwriter shall also agree in writing to notify the City within thirty (30) calendar days after their knowledge of any cancellation, termination or modification of such policies. 11.2.2 The term "full insurable value" as used in this Article 11 shall mean the cost determined by mutual agreement of the Parties (excluding the cost of excavation, foundation and footings below the lowest floor and without deduction for depreciation) of providing similar Improvements of equal size and providing the same habitability as the Improvements immediately before such casualty or other loss, but using readily -available contemporary components, including the cost of construction, architectural and engineering fees, and inspection and supervision. 11.2.3 All insurance provided under this Article 11 shall be for the benefit of the Parties. Developer agrees to timely pay all premiums for such insurance and, at its sole cost and expense, to comply and secure compliance with all insurance requirements necessary for the maintenance of such insurance. Developer agrees to submit certificates evidencing such insurance to the City on an Accord form within seven (7) calendar days following the applicable Close of Escrow. Upon request by the City, within seven (7) calendar days, if practicable, after expiration of any such policy, certificates evidencing renewal policies shall be submitted to the City. Except for insurance required to be provided pursuant to Section 11.1.4, all insurance provided for under this Article 11 shall be provided by insurers licensed to do business in the State of California. Except as otherwise permitted in Section 11. 1, all such insurance shall be provided by insurers with a Best's rating of A -VII or better. 11.2.4 If Developer fails or refuses to procure and maintain insurance as required by this Agreement, the City shall have the right, at the City's election, and upon ten (10) calendar day's prior notice to Developer, to procure and maintain such insurance. The premiums paid by the City shall be treated as a loan, due from Developer, to be paid on the first calendar day of the month following the date on which the premiums were paid. The City shall give prompt notice of the payment of such premiums, stating the amounts paid and the name of the insured(s). 12. Covenants and Restrictions 12.1 Maintenance Covenant. Developer, on behalf of itself and its Successor Lessees, hereby covenants and agrees, from and after each Close of Escrow to maintain the portions of the Property for which it holds a leasehold interest consistent with the following requirements and as further set forth in that certain Declaration of Special Restrictions to be entered into by the City and Developer, in form and substance approved by each in its sole discretion as one of the Required Agreements ("Special Restrictions"): Tustin Jamboree Parcel IA DDA 57 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (a) construction until issuance of a Certificate of Compliance for a Phase, Developer and its successors and assigns shall maintain the Improvements under construction in such Phase consistent with construction industry practice. (b) In the event Developer or any Successor Lessee fails to maintain the Improvements on the Property or any portion thereof in accordance with the standard for the quality of maintenance, the City or its designee shall have the right but not the obligation to enter the Property upon reasonable notice to Developer or its successor or assigns, correct any violation, and hold Developer, or such Successor Lessee, responsible for the cost thereof, in accordance with the requirements of the then -effective Access License, if any, the Landscape Installation and Maintenance Agreement and/or Ground Lease, as applicable. 12.2 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself and each Successor Lessee, that there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property or in development of the Project, nor shall Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property or in development of the Project. 13. Affordable Housing. 13.1 Affordable Housing Unit Mix. 13. 1.1 Phase I shall be comprised of no fewer than fifty four (54) Units shall be constructed on the Phase I Parcel and made available for rental only to Lower Income Households, Very Low Income Households and Extremely Low Income Households ("Phase I Units"). 13.1.2 Phase II shall be comprised of no fewer than sixty (60) Units constructed on the Phase II Parcel and made available as permanent supportive housing for rental only to Extremely Low Income Households ("Phase II Units") 13.2 Affordable Housing Unit Obligations. The City and Developer hereby agree that (a) the provisions of this Agreement relating to Phase I Units and Phase 11 Units are entered into in order to comply with Government Code Section 65915 and (b) that such provisions and the provisions of the Affordable Housing Covenant fully satisfy the requirements of such code sections. 14. Potential and Material Defaults. 14.1 Potential Defaults. Except as otherwise provided in this Agreement, in the event either Party (the "Defaulting Party") fails to perform, or delays in the performance of, any obligation, in whole or in part, required to Tustin Jamboree Parcel IA DDA 58 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) be performed by the Defaulting Party as provided in this Agreement (a "Potential Default"), the other Party (the "Injured Party") may give written notice of such Potential Default to the Defaulting Party (the "Default Notice"), which Default notice shall state the particulars of the Potential Default. The Parties agree to cooperate in good faith and meet and confer regarding each Potential Default. 14.2 Material Defaults. 14.2.1 Monetary Defaults. Notwithstanding any other provision of this Agreement, if a Party fails to pay the other Party any sum required to be paid pursuant to this Agreement, and the Injured Party gives the Defaulting Party a Default Notice of such nonpayment, such nonpayment shall be a Potential Default. The Defaulting Party shall have a period of thirty (30) calendar days after the date the Default Notice is received, or deemed to have been received, within which to cure the Potential Default by making the required payment; the period to cure such Potential Default shall not be extended by Force Majeure Delays. In the event a Potential Default for nonpayment is not cured within said thirty (30) calendar day period, the Potential Default shall become a "Material Default" that shall be deemed to have occurred upon the expiration of the cure period. 14.2.2 Non -Monetary Defaults. With respect to non -monetary defaults under this Agreement, a Potential Default shall become a "Material Default" in the event the Potential Default is not cured, at the Defaulting Party's expense, (a) within twenty (20) Business Days after the date the Default Notice is received, or deemed to have been received by the Defaulting Party, or (b) if such cure cannot be reasonably accomplished within such twenty (20) Business Day period, within ninety (90) calendar days after the date the Default Notice is received, or deemed to have been received by the Defaulting Party, but only if the Defaulting Party has commenced such cure within such twenty (20) Business Day period and diligently pursues such cure to completion, or (c) within such longer period of time as may be expressly provided in this Agreement or as mutually agreed to in writing between the Parties with respect to the Potential Default. Except as set forth in Section 14.2.3, the time periods set forth in this Section 14.2.2 to cure a Potential Default shall be extended by Force Majeure Delays. Following written notice and failure to cure within the time periods set forth above, each Potential Default shall become a Material Default that shall be deemed to have occurred upon the expiration of the applicable cure period. Notwithstanding the foregoing, with respect to any Phase for which a Certificate of Compliance has been Recorded and a Ground Lease has been executed and delivered, the terms of the Ground Lease shall govern with respect to cure of Non -Monetary defaults under this Agreement. 14.2.3 Transfer Defaults. Notwithstanding the foregoing, any Transfer or any Transfer of Control in violation of the provisions of Article 2 shall be a Material Default under this Agreement without notice or cure period and shall not be subject to extension for Force Majeure Delay; provided, however, that with respect to involuntary liens recorded against the Parcel as described in Sections 8.6.3 or 8.10 (and that are not Transfers or Transfers of Control prohibited by this Agreement), the Defaulting Party shall be in Material Default if it shall have failed within 90 days of the date of recordation thereof to either remove or to bond such lien as required by Sections 8.6.3 or 8. 10, as applicable. Tustin Jamboree Parcel IA DDA 59 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 14.2.4 Interest. If a monetary Material Default occurs under this Agreement, then in addition to any other remedies conferred upon the Injured Party pursuant to this Agreement, the Defaulting Party shall pay to the Injured Party, in addition to all principal amounts due, interest at the Default Rate, for the period from the date such payment or part thereof was due until the date the same is paid. 14.2.5 No Waiver. Failure or delay by an Injured Party to deliver a Default Notice shall not constitute a waiver of any Default, nor shall it change the time of Default. Except as otherwise expressly provided in this Agreement, any failures or delays by either Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any Default or of any such rights or remedies. Delays by either Party in asserting any of its rights and remedies shall not deprive either Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 14.2.6 Cross -Defaults. Notwithstanding anything to the contrary set forth herein, following the first Close of Escrow under this Agreement, in no event shall the Phase 1 Project and the Phase 2 Project be cross -defaulted with one another hereunder. 14.3 Due Diligence Information; Products. 14.3.1 Destruction of Due Diligence Information. Within five (5) Business Days following a termination of this Agreement that occurs prior to Close of Escrow, Developer shall use commercially reasonable efforts to destroy all written Due Diligence Information in Developer's possession with the exception of original documents provided to Developer, which shall be returned to the City; provided, however that Developer shall use its best efforts to eradicate all Due Diligence Information. Other than the obligation to use its best efforts to eradicate all Due Diligence Information, Developer does not provide the City any assurances that electronic information will be irretrievably eradicated. Developer shall not be obligated to destroy any Due Diligence Information and Developer shall be entitled to retain one copy of any Due Diligence Information as is necessary to comply with any legal, regulatory or internal document retention policy. 14.3.2 Surrender of Transferable Products. In connection with the proposed Project, Developer shall be preparing or causing to be prepared architectural and other products, surveys, plans, reports, tests, studies and investigations with respect to the Property and the proposed Project (collectively, "Products"). All Products shall be prepared at Developer's sole cost and expense. If this Agreement is terminated for any reason other than a Default by the City or issuance of a Final Certificate of Compliance, then, with respect to all Products: (i) architectural and engineering Products; (ii) Products that relate to property in addition to the Property; (iii) financial or economic estimates, projections and evaluations; (iv) studies and information related to potential tenants, lenders and investors; (iv) any confidential, privileged or proprietary information regarding the ownership or financial statements of Developer or any Developer Affiliate and (v) Products that are pledged to a Permitted Mortgagee as collateral for a Permitted Mortgage (the Products not subject to such exclusions are collectively the "Transferable Products"), the City may request that Developer, for consideration to be mutually agreed, transfer Developer's rights to any or all of the Transferable Products identified by the City, but in no event shall the cost to the City exceed Five Thousand Dollars ($5,000.00). Upon such request, Tustin Jamboree Parcel IA DDA 60 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Developer shall deliver to the City copies of all Transferable Products requested by the City together with a bill of sale therefor, provided that such transfer is AS -IS and Developer makes no representation, warrantee or guarantee regarding the completeness or accuracy of the Transferable Products, and Developer does not covenant to convey the copyright or other ownership rights of third parties thereto. Upon the City acquiring Developer's rights to any or all of the Transferable Products, the City shall be permitted to use, grant, license or otherwise dispose of such Transferable Products to any Person for development of the Project or any other purpose; provided, however, that Developer shall have no liability whatsoever to the City or any transferee of title to the Transferable Products in connection with the use of the Transferable Products. Notwithstanding anything to the contrary herein, Developer shall only be obligated to transfer any Transferable Products to the extent that Developer owns the rights to the same pursuant to its contract with the preparer thereof, provided that Developer shall use commercially reasonable efforts to secure ownership of Transferable Products pursuant to such contracts. The provisions of this Section shall not apply with respect to a Phase of the Project which a Certificate of Compliance has been issued. 14.3.3 Survival. The provisions of this Section 14.3 shall survive the termination of this Agreement in its entirety or as to any portion of the Property except that it shall terminate with respect to each Phase upon the issuance of a Certificate of Compliance for such Phase. 15. Nonoccurrence of a Condition at Close of Escrow. 15.1 Failure of a Condition Absent a Default. 15.1.1 In the event any Close of Escrow is extended for any of the reasons set forth in this Section 15.1 not caused by a Potential Default or a Material Default by either Party (including due to a failure of the Parties to agree upon any one or more of the Required Agreements, each in its sole discretion), either Party shall have the right to terminate this Agreement as to the Phase for which Close of Escrow is extended as hereinafter provided: (a) In the event a final non -appealable decision in any litigation brought by a third party or approval of a referendum or initiative results in the inability of the City to convey a leasehold interest in the Property to Developer, or results in the inability of Developer to perform its material obligations hereunder despite Developer's commercially reasonable efforts to do so, either Party shall have the right, upon thirty (30) calendar days' prior written notice to the other Party and the Escrow Holder, to terminate this Agreement. (b) In the event litigation, referendum, or initiative brought by a third party remains pending on the Outside Closing Date for a Phase and (i) such ongoing challenge prevents the City from conveying a leasehold interest in the affected Property to Developer, or (ii) such ongoing challenge is the cause of Developer's inability to perform its material obligations hereunder despite Developer's commercially reasonable efforts to do so, or (iii) such ongoing challenge could reasonably be expected to result in a material adverse effect on Developer's ability to develop or operate all or any portion of the Phase 1 Property, either Party shall have the right, upon thirty (30) calendar days' written notice to the other Party and the Escrow Holder, to terminate this Agreement. Tustin Jamboree Parcel IA DDA 61 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (c) In the event that the circumstances creating the right of termination in Section 15.1.1(a) or b) has been cured during such thirty (30) calendar day period, the right to terminate shall likewise be extinguished. In addition, if Developer provides the City with written notice that Developer will indemnify, defend and hold harmless the City in any litigation or will challenge such referendum or initiative identified in Section 15.1.2(a) or (b) above, then, the City shall not have the right to terminate this Agreement and the Phase 1 Property Outside Closing Date shall be extended for as long as the Developer continues such defense or challenge. 15.1.2 If Close of Escrow with respect to a Phase does not occur on or before 5:00 p.m., Pacific Time, on the Closing Date for such Phase, because of the failure to occur of a Closing Condition for reasons other than a Default by either Party, then the Party for whose benefit the applicable Closing Condition was intended may, by delivery of written notice to the other Party and to the Escrow Holder, terminate this Agreement as to such Phase. In the event either Developer or the City is in Potential Default or Material Default as of the Closing Date for a Phase, the Party in Default shall not have the right to terminate the Agreement as to such Phase pursuant to this Section 15.1 until and unless the Default is cured. For purposes of clarity, the failure of any Closing Condition for the benefit of either Party to be satisfied at or prior to the Close of Escrow for a Phase shall not, on its own, constitute a Default by either Party hereunto absent a Default under a separate covenant, obligation, representation or warranty set forth in this Agreement or any Other Agreement. 15.1.3 Except as set forth in Section 5.2, upon any termination of this Agreement as to a Phase prior to the Close of Escrow for such Phase (except for a termination pursuant to Section 15.2 or Section 15.3 below), each Party shall pay one-half (1/2) of Escrow Holder's normal cancellation charges. In the event of a termination as provided in this Section 15.1.3, Developer shall comply with Section 14.3. The termination of this Agreement pursuant to this Section 15.1.3 shall constitute a waiver of any rights or Claims either Party may have against the other or against the Property or the Improvements, or any portion thereof, but shall not terminate or release any liability or obligations of Developer to comply with Section 14.3. In the event of a termination as provided in this Section 15. 1, under no circumstances shall Developer have any right or claim to, or against, the Project or Property or any portion thereof. For purposes of this Section 15. 1, the failure to satisfy Developer Closing Conditions set forth in Sections 7.2.1 or the failure of the City to approve the Financing Plan, the Updated Financing Plan, the Partnership Agreement or to provide any other consent that is a Closing Condition shall not constitute a Default by the City. 15.2 Material Default of Developer Results in Failure of Close of Escrow. If, as to any Phase, the Close of Escrow does not take place on or before 5:00 p.m., Pacific Time, on the Closing Date solely as a result of a Material Default by Developer (including failure to deliver sufficient funds to cause the Closing to occur in a timely manner, in accordance with the provisions of Article 7), the City shall have the right to terminate this Agreement and the Escrow as to such Phase only by delivering written notice to Developer and to Escrow Holder, whereupon the City shall be released from its obligation hereunder to lease the Property as to such Phase only to Developer or the Developer's permitted successors or assigns; provided however, that in the event of a Material Default pursuant to Section 2.3, the City shall have the right to terminate this Agreement as to both Phases. Upon such termination, the City shall retain the Independent Contract Consideration and have all rights and remedies for a separate breach, if any, by Developer Tustin Jamboree Parcel IA DDA 62 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) of the confidentiality and/or indemnification provisions set forth in Sections 4.6 and 17.12.1 and/or the provisions of Section 14.3, Developer shall pay the full amount of Escrow Holder's charges as a result of such Default and termination, and upon such payment this Agreement shall automatically terminate as to the applicable Phase and thereafter, neither Party shall have any further obligations under this Agreement (subject to the provisions that expressly survive the termination of this Agreement). 15.3 Failure to Close; Failure of Certain Conditions of Closing; Material Default of Com. Provided that the Required Agreements have then been approved by the Parties pursuant to Section 4.6.5 and the amendment to this Agreement contemplated by Section 4.6.5 has been executed and delivered by the Parties, if the Close of Escrow for a Phase does not occur on or before 5:00 p.m., Pacific Time, on the Closing Date for such Phase, solely as a result of a Potential Default or Material Default by the City in the performance of its obligations under this Agreement, then, so long as Developer is not in Potential Default or Material Default, Developer shall have the right, by providing notice to the City, within twenty (20) Business Days after the Closing Date for such Phase, of its election to do so, either: (a) to lease the Property pursuant to this Agreement notwithstanding such failure of a Developer Closing Condition or the Default by the City, whereupon such failure of a Developer Closing Condition or such Default, as applicable, shall be deemed waived as against the City; or (b) to terminate this Agreement and cancel the Escrow, in which case the provisions of Section 15.3.3 shall apply. Notwithstanding the foregoing, in the event the City fails to deliver the applicable Easement Agreement, Ground Lease, Memorandum of Ground Lease, Special Restrictions and Affordable Housing Covenant into Escrow or otherwise fails to proceed with the Close of Escrow in breach of this Agreement within five (5) Business Days after Developer has delivered into Escrow all of the deliveries required pursuant to Section 7.2.2 (other than the sums due pursuant to Section 7.2.2(a)), and provided that all City Closing Conditions have been waived by the City in writing or satisfied (except with respect to any City Closing Condition which is not satisfied as a result of a Default by the City), Developer shall have the right to bring an action in equity or otherwise against the City or subsequent owners, lessors or sublessors of the Property for specific performance of Section 7. In such event the City shall pay the full amount of Escrow Holder's reasonable charges and Closing Costs. 15.3.1 In the event the City receives timely notice of Developer's election to lease the Phase I Property or the Phase II Property pursuant to this Section 15.31 notwithstanding a Default by the City, Developer shall deliver the sums due pursuant to Section 7.2.2(a) into Escrow no later than ten (10) Business Days after the City's receipt of said notice and, subject to the satisfaction of the other Closing Conditions, the Close of Escrow for such Phase shall occur on that date which is eleven (11) Business Days after the City's receipt of such notice, Developer shall be deemed to have waived all unsatisfied Developer Closing Conditions for such Phase as of the Close of Escrow for the Phase. 15.3.2 In the event the City receives timely notice of Developer's election to terminate this Agreement pursuant to this Section 15.3, the City shall pay the full amount of Escrow Holder's reasonable charges and such payment shall be Developer's sole and exclusive remedy hereunder for the failure of any Close of Escrow. Developer shall not be entitled to pursue Tustin Jamboree Parcel IA DDA 63 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) an action against the City for damages as a result of the Default by the City or as a result of the City's failure to cause any of Developer's Closing Conditions to be satisfied by any Closing Date. 15.3.3 In the event either: (a) the City does not timely receive notice of Developer's election under Section 15.3.1 to either to lease Property pursuant to this Agreement or to terminate this Agreement; or (b) Developer has elected to lease the Property but fails to deliver the sums due pursuant to Section 7.2.2(a) into Escrow no later than ten (10) Business Days after the City's receipt of said notice, then the City shall have the right to terminate this Agreement by providing written notice of its election to terminate to Developer, such termination to be in accordance with the provisions of Section 15.3.3. 15.3.4 The termination of this Agreement pursuant to this Section 15.3 shall not terminate or release any liability or obligations of Developer to comply with Section 14.3. In the event of a termination as provided in Section 15.3.3, under no circumstances shall Developer have any right or claim to, or against, the Property or any portion thereof. The termination of this Agreement pursuant to this Section 15.3 shall constitute a waiver of any and all rights and Claims either Party may have against the other, except as expressly provided above. 16. Intentionally Omitted 17. General Provisions. 17.1 Applicable Law; Consent to Jurisdiction; Service of Process. This Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California's choice -of -law principles. Developer and City agree that any disputes arising between them in connection with this Agreement or in connection with or under any instrument, agreement or document provided for or contemplated by this Agreement, including in connection with the execution of this Agreement, any Close of Escrow or any other matter arising under, related to or in connection with this Agreement (including a determination of any and all issues in such dispute, whether of fact or of law) shall be tried and litigated exclusively in the Superior Court of the County of Orange, State of California, in any other appropriate court of that county, or in the United States District Court for the Central District of California. This choice of venue is intended by Developer and the City to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between or among Developer and the City with respect to or arising out of this Agreement in any jurisdiction other than that specified in this Section 17.1. Each Party hereby waives any right that it may have to assertforum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section 17. 11 and stipulates that the State and federal courts located in the County of Orange, State of California, shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or proceeding arising out of this Agreement. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Section 17.1 by means of registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement, or in the manner set forth in Section 17.6 (a) or (c) of this Agreement pertaining to notice. Any final judgment rendered against Tustin Jamboree Parcel IA DDA 64 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) a Party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. 17.2 Legal Fees and Costs. If any Party to this Agreement institutes any action, suit, counterclaim or other proceeding for any relief against another Party, declaratory or otherwise (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 reasonable attorneys' fees and costs 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 paragraph, 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) postjudgment 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 17.2 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. 17.3 Modifications or Amendments. No amendment, change, modification or supplement to this Agreement shall be valid and binding on any of the Parties unless it is represented in writing and signed by each of the Parties hereto. 17.4 Further Assurances. Each of the Parties hereto shall execute and deliver at their own cost and expense, any and all additional papers, documents, or instruments, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of its obligations hereunder in order to carry out the intent and purposes of this Agreement. 17.5 Rights and Remedies Are Cumulative; Limitation on Damages. 17.5.1 Cumulative Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. Except as otherwise specifically set forth in this Agreement, and subject to Section 17.5.2, wherever a Party has a right to damages for the Material Default of another Party: (a) such damages shall be limited to direct (actual) damages for Tustin Jamboree Parcel IA DDA 65 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) the default of the other Party, and (b) each of the Parties, on behalf of itself and its successors and assigns, including Successor Lessees of Developer, hereby expressly waives, releases and relinquishes any and all right to any expectation, anticipation, indirect, consequential, exemplary or punitive damages. 17.5.2 Limitation on Damages Payable by the City. Developer acknowledges that the City would not have entered into this Agreement if the City could become liable for significant damages under or with respect to this Agreement or the Other Agreements. Consequently, and notwithstanding any other provision of this Agreement, except for (a) the monetary damages that may arise from the City's breach of its representations and warranties contained in Section 3.3 or from the City's indemnity obligations contained in Section 17.12.2, each of which is referenced below in Section 17.5.3, and (b) the payment of attorneys' fees in accordance with Section 17.2 and court costs, the City shall not be liable in damages under this Agreement to Developer or to any Successor Lessee and Developer hereby waives any and all rights to claim damages of any kind or nature from the City except as set forth in Section 17.5.3. Notwithstanding the foregoing, nothing herein shall be deemed to preclude Developer from seeking payment for amounts which the City is obligated to pay to Developer pursuant Section 7.4.4, provided, however, that Developer shall not be entitled to any damages in addition to the actual amounts owed by the City to Developer pursuant to this Agreement or the Other Agreements. 17.5.3 Special Circumstances Where Damages may be Payable by the Com. Subject to Section 17.5.1, the limitations on damages set forth in Section 17.5.2 shall not limit the liability of the City, if any, for damages which arise out of a breach of the City's representations and warranties contained in Section 3.3 or the indemnity provided in Section 17.12.2; provided, however that the amount of any damages payable with respect to such breach shall be the lesser of (a) actual damages or (b) One Hundred Thousand Dollars ($100,000.00). 17.6 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 U.S. Postal Service via certified mail, return receipt requested, postage prepaid, and addressed to the other Party as set forth below; (c) the next Business Day after such notice has been deposited with an overnight delivery service reasonably approved by the Parties (Federal Express, Overnite Express, United Parcel Service and U.S. Postal Service are deemed approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as set forth below with next -business -day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider; or (d) when transmitted if sent by facsimile transmission or email to the fax number or email address set forth below; provided, however, that notices given by facsimile or email shall not be effective unless either (i) a duplicate copy of such notice is promptly sent by any method permitted under this Section 17.6 other than by facsimile or email (provided that the recipient Party need not receive such duplicate copy prior to any deadline set forth herein); or (ii) the receiving Party delivers a written confirmation of receipt for such notice either by facsimile, email or any other method permitted under this Section. Tustin Jamboree Parcel IA DDA 66 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Any notice given by facsimile or email shall be deemed received on the next Business Day if such notice is received after 5:00 p.m. (recipient's time) or on a non -Business Day. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows: City: Jeffrey C. Parker, City Manager City of Tustin 300 Centennial Way Tustin, CA 92780 Fax: (714) 838-1602 Email: jparkergtustinca.org With a copy to: David Kendig, City Attorney City of Tustin Woodruff Spradlin & Smart, APC 555 Anton Blvd. #1200 Costa Mesa, CA 92626 Fax: (714) 415-1183 Email: dkendi wss-law.com Developer: JHC-Acquisitions LLC c/o Jamboree Housing Corporation Michael Massie Senior Vice President, Finance Jamboree Housing Corporation 17701 Cowan Ave., Suite 200 Irvine, CA 92614-6840 Fax: (949) 263-0647 Email: mmassie(c, jamboreehousing.com With a copy to: Patrick D. McCalla Rutan & Tucker, LLP 611 Anton Blvd. # 1400 Costa Mesa, CA 92626 Fax: (714) 546-9035 Email: pmccallagrutan. com Any Party may by written notice to the other Party in the manner specified in this Agreement change the address to which notices to such Party shall be delivered. 17.7 Delay. 17.7.1 Definition of Force Maieure Delay. "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 (a) the ability of the claiming Tustin Jamboree Parcel IA DDA 67 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) Party to meet its non -monetary obligations under this Agreement, including the deadlines imposed by the Schedule of Performance, or (b) the ability of Developer to Complete the Project, and which events (or the effect of which events) could not have been avoided by due diligence and use of reasonable efforts by the Party claiming Force Majeure Delay: (a) Civil Unrest. An epidemic, blockade, quarantine, rebellion, war, insurrection, act of terrorism, strike or lock -out, riot, act of sabotage, civil commotion, act of a public enemy, freight embargo, or lack of transportation; (b) Unforeseeable Conditions. Reasonably unforeseeable physical condition of the Property 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; (d) Litigation. Any lawsuit seeking to restrain, enjoin, challenge or delay any issuance of any Entitlement or seeking to restrain, enjoin, challenge, or delay construction of the Project, which is defended by the claiming Party, provided however that the foregoing shall not apply to a Party's performance regarding Close of Escrow, which is governed by Articles 7 and 15; (e) Change of Law. The passage of a referendum or initiative that results in the inability of such Party to perform its material obligations hereunder; (f) Change in Governmental Requirements. Any change in Governmental Requirements or adoption of any new Governmental Requirements which is materially inconsistent with Governmental Requirements in effect as of the Effective Date, as described in any statutory development agreement approved in connection with the Project; and (g) 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. 17.7.2 Limitation. The term "Force Majeure Delay" shall be limited to the matters listed Section 17.7.1 above 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, permit, license, consent, authorization or approval which is necessary for the development of the Project, except for any such matter resulting from a lawsuit or referendum as described in Section 17.7.1(d) or Le); (b) Foreseeable Changes in Governmental Requirements. Any change in a Governmental Requirements which was proposed or was otherwise reasonably foreseeable at the Effective Date; Tustin Jamboree Parcel IA DDA 68 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) (c) Failure to Perform Obligations. Failure of Developer or any Successor Lessee to perform any obligation to be performed by Developer or any Successor Lessee hereunder as the result of adverse changes in the financial condition of Developer or such Successor Lessee, as applicable; (d) Failure to Provide Financial Security. Failure of Developer or any Successor Lessee 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 or any Successor Lessee hereunder as the result of adverse changes in market conditions unless Developer or such Successor Lessee demonstrates to the satisfaction of the City Manager or designee in its sole discretion that (x) Developer or such Successor Lessee was unable to obtain such financing despite making best efforts to do so, and (y) such financing is unavailable on terms which are commercially feasible because of generally applicable economic conditions affecting the credit market which then exist. (e) Failure to Submit Required Documentation. Failure of the claiming Party to submit documentation as and when required by this Agreement; (f) Failure to Maintain Required Insurance. Failure to acquire, maintain and submit evidence of insurance policies as required by Section 11; (g) Failure to Execute Documents. Failure of the claiming party to execute documents; and (h) Other Matters. All other matters not caused by the other Party and not listed in Section 17.7.1(a) through 17.7.3 Procedure. If any Party (the "First Party") believes that it is entitled to an extension of time due to Force Maj eure Delay, it shall notify the other Party (the "Second Party") in writing within thirty (30) calendar days from the date upon which the First Party becomes aware of such Force Majeure Delay, describing the Force Majeure Delay, when and how the First Party obtained knowledge thereof, the date the event commenced, 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. 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 fora given Force Majeure Delay within the thirty (30) calendar days specified above, there shall be no extension for such Force Majeure Delay. 17.7.4 Extension of Time Periods. Except as otherwise specifically set forth in this Agreement, all time periods under this Agreement, including the Schedule of Performance, relating to non -monetary obligations under this Agreement shall be extended for Force Majeure Delay in accordance with this Section 17.7. 17.8 Conflict of Interest. No appointed or elected official or employee of the City shall have any personal interest, direct or indirect, in this Agreement nor shall any official or employee participate in any decision relating to the Agreement which affects his interests or the interests of any corporation, partnership, or Tustin Jamboree Parcel IA DDA 69 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) association in which he is directly or indirectly interested. Developer warrants that it has not paid or given and will not pay or give any third person any money or other consideration for obtaining this Agreement. 17.9 Nonliability of City Officials and Employees. No elected or appointed official, representative, employee, agent, consultant, legal counsel or employee of the City shall be personally liable to Developer, or any successor in interest in the event of any default or breach by the City for any amount which may become due to Developer or successor or on any obligation under the terms of this Agreement. No representative, agent, consultant, legal counsel or employee of Developer shall be personally liable to the City, or any successor in interest in the event of any Default or breach by Developer for any amount which may become due to the City or successor or on any obligation under the terms of this Agreement; provided however that the foregoing shall not limit or restrict the obligations of the Qualified Tax Credit Investor to contribute funds under the Partnership Agreement or the obligations or liabilities of any Guarantor under the Completion Guaranty. 17.10 Inspection of Books and Records. The City shall have the right at all reasonable times, upon ten (10) calendar days written notice, to inspect the books and records of Developer pertaining to the Property as pertinent to the purposes of this Agreement. Developer shall also have the right at all reasonable times to inspect the books and records of the City, upon ten (10) calendar days written notice, pertaining to the Property as pertinent to the purposes of this Agreement. 17.11 Consents and Approvals. 17.11.1 Consent. In any instance in which a Party shall be requested to consent to or approve of any matter with respect to which such Party's consent or approval is required by any of the provisions of this Agreement, such consent or approval shall be given in writing. In addition, whenever not expressly otherwise stated: (a) the City, when acting in its Governmental Capacity shall be permitted to utilize its sole discretion with respect to matters requiring its approval except as otherwise specified in any applicable Governmental Requirements; (b) the City, when acting in its Proprietary Capacity shall not unreasonably withhold, condition or delay its approvals with respect to matters requiring its approval hereunder; and (c) Developer shall not unreasonably withhold, delay or condition its consent with respect to matters requiring its approval hereunder. 17.11.2 Deemed Submitted. Any matter required by this Agreement to be submitted to the City shall be deemed submitted upon the submittal to the City Manager or designee. 17.11.3 Action Taken. Following its approval by the City, this Agreement shall be administered by any designee of the City Manager or the City Manager. Except where the terms of this Agreement expressly require the approval of a matter or the taking of any action by the City Council, any matter to be approved by the City shall be deemed approved, and any action to be taken by the City shall be deemed taken, upon the written approval by the City Manager (or designee). The City Manager or designee shall have the authority to issue interpretations with Tustin Jamboree Parcel IA DDA 70 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) respect to this Agreement and to determine whether any action requires the approval of the City Council. All waivers, amendments or modifications of this Agreement shall require the approval of the City Council. 17.12 No Real Estate Commissions. 17.12.1 The City shall not be liable for any real estate commissions, brokerage fees or finder's fees which may arise from this Agreement. Developer represents that it has engaged no broker, agent or finder in connection with this Agreement or the transactions identified in this Agreement, other than disclosed to City in writing prior to the Effective Date. Developer hereby agrees to indemnify and hold the City and its elected and appointed officials, employees and representatives harmless from any losses and liabilities arising from or in any way related to any claim by any broker, agent, or finder retained by Developer regarding this Agreement or development of the Project or the transactions identified in this Agreement. 17.12.2 The City represents that it has engaged no broker, agent, or finder in connection with this Agreement or the transactions identified in this Agreement. The City hereby agrees to indemnify and hold Developer and its elected and appointed officials, employees and representatives harmless from any losses and liabilities arising from or in any way related to any claim by any broker, agent, or finder retained by the City regarding this Agreement or development of the Project or the transactions identified in this Agreement. 17.13 Date and Delivery of Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Parties intend that this Agreement shall be deemed effective, executed and delivered for all purposes under this Agreement and for the calculation of any statutory time periods based on the date an agreement between the Parties is effective, executed and/or delivered, as of the Effective Date. 17.14 Constructive Notice and Acceptance. Every Successor Lessee and each and every Person claiming by, through or under Developer or any Successor Lessee is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such Person acquired an interest, including a leasehold interest, in the Project or Property. 17.15 Survival of Covenants, Representation and Warranties. The covenants, representations and warranties, and indemnities specified in this Agreement shall survive any investigation made by any Party hereto and the closing of the transactions contemplated hereby until the termination of this Agreement. 17.16 Construction and Interpretation of Agreement. 17.16.1 Construction. The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. The Parties hereto acknowledge and agree that this Agreement has been Tustin Jamboree Parcel IA DDA 71 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) prepared jointly by the Parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each Party has been given the opportunity to independently review this Agreement with legal counsel, and that each Party has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the Party preparing it; instead other rules of interpretation and construction shall be utilized. The provisions of California Civil Code Section 1654 are specifically waived by each Party hereto. 17.16.2 Effect of Invalidity or Unenforceability. If any term or provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by any Party hereunder, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each other term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the Parties hereto that in lieu of each clause or provision of this Agreement that is illegal, invalid, or unenforceable, there be added as a part of this Agreement an enforceable clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible. 17.16.3 Conclusivity of Certain Matters. Any matters or facts included in Article 1 shall be conclusively deemed true. 17.16.4 Captions. The captions of the articles, sections and clauses in this Agreement are inserted solely for convenience and under no circumstances are they or any of them to be treated or construed as part of this instrument. 17.16.5 References to Articles, Sections, Paragraphs, Clauses, Exhibits, Attachments and Schedules. Unless otherwise indicated, references in this Agreement to articles, sections, paragraphs, clauses, exhibits, attachments and schedules are to the same contained in or attached to this Agreement and all attachments and schedules referenced in this Agreement are incorporated in this Agreement by this reference as though fully set forth in this Section. 17.16.6 Gender, Singular and Plural. As used in this Agreement and as the context may require, the singular includes the plural and vice versa and the masculine gender includes the feminine and vice versa. 17.16.7 Includes and Including. As used in this Agreement the words "include" and "including" mean, respectively, "include, without limitation" and "including, without limitation". 17.17 Time of Essence. Time is of the essence with respect to all provisions of this Agreement in which a definite time for performance is specified; provided, however, that the foregoing shall not be construed to limit or Tustin Jamboree Parcel IA DDA 72 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) deprive a Party of the benefits of any cure period or Force Majeure Delay expressly provided for in this Agreement. 17.18 Fees and Other Expenses. Except as otherwise provided in this Agreement, each of the Parties hereto shall pay its own fees and expenses, including attorneys' fees, experts' fees and consultants' fees and costs, in connection with negotiation and preparation of this Agreement and compliance with its terms. 17.19 No Partnership. Nothing contained in this Agreement shall be deemed or construed to create a partnership, joint venture or any other relationship between the Parties hereto other than landlord and tenant according to the provisions contained in this Agreement, or cause the City to be responsible in any way for the debts or obligations of Developer. 17.20 Binding Effect. This Agreement and terms, provisions, promises, covenants conditions and restrictions contained herein shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors and assigns. 17.21 No Third -Party Beneficiaries. This Agreement has been made and entered into solely for the benefit of the Parties to this Agreement and their respective successors and permitted assigns. Nothing in this Agreement confers any rights or remedies on any other Person. Nothing in this Agreement relieves or discharges the obligation or liability of any third Persons to any Parties to this Agreement. 17.22 Counterparts. This Agreement may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. This Agreement shall not be effective until the execution and delivery by the Parties of at least one set of counterparts. The Parties agree to recognize execution of this Agreement by facsimile or other electronically transmitted signatures; provided, however, that such execution by facsimile or electronic transmission shall not be effective unless a manually executed copy of the signature page is promptly sent by U.S. Postal Service, postage prepaid or overnight delivery service or is hand delivered to the Parties or Escrow Holder. The Parties hereby authorize each other (and Escrow Holder) to detach and combine original signature pages and consolidate them into a single identical original. Any one of such completely executed counterparts shall be sufficient proof of this Agreement. 17.23 Entire Agreement, Waivers and Amendments. 17.23.1 Duplicate Originals. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. Tustin Jamboree Parcel IA DDA 73 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) 17.23.2 Entire Agreement. This Agreement, including the Attachments hereto, together with the Other Agreements, constitute the entire agreement between the Parties with respect to the subject matter hereof. This Agreement and the Other Agreements supersede and replace any and all prior agreements, proposed agreements, negotiations and communications, oral or written, relating to the subject matter hereof and contain the entire agreement between the Parties as to the subject matter hereof and any and all prior agreements, understandings or representations between the Parties and/or any Developer Affiliate are hereby terminated and canceled in their entirety. Each Party hereby acknowledges that no other Party hereto, nor its agents or attorneys, have made any promises, representations or warranties whatsoever, expressed or implied, not contained in this Agreement or the Other Agreements, to induce such Party to execute this Agreement, and each Party acknowledges that it has not executed this Agreement in reliance on any such promise, representation or warranty not contained in this Agreement or any Other Agreements. For the avoidance of doubt, this Agreement shall terminate and supersede the ENA, except that this Agreement does not supersede those provisions of the ENA that expressly survive by the terms thereof, the termination of the ENA. 17.23.3 No Waiver. No waiver of any provision or consent to any action under this Agreement shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a Party to provide a waiver in the future except to the extent specifically set forth in writing. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities for the City and Developer and all amendments hereto must be in writing and signed by the appropriate authorities of the City and Developer. 17.24 Confidentiality. Subject to the provisions of the California Public Records Act (Government Code Section 6250 et seq.), which governs the City's use and disclosure of its agreements and records, the City and Developer hereby agree that each shall keep confidential information provided by the other and denominated as confidential and will not disclose any such information to any Person without obtaining the prior written consent of the other Party, except that (a) the City shall have the right to disclose any information contained in any third party reports produced or obtained by Developer and required to be disclosed by it pursuant to law, (b) Developer and the City shall each have the right to disclose any Developer Excluded Information, (c) ) the City shall have the right disclose City Excluded Information, (d) Developer shall have the right to disclose to its consultants and partners any information to the extent necessary or desirable in connection with Developer's due diligence on the Property and performance of its obligations under this Agreement and the Other Agreements, (e) the City shall have the right to disclose to its officials, employees and City retained consultants and representatives all information received by it from Developer as required to perform its obligations under this Agreement and the Other Agreements, and (f) either Party shall have the right to disclose any information to the extent that it is legally required or compelled to do so provided that (to the extent permitted) it provides the other Property with prior notice of such disclosure obligation and cooperates with such other Party (at no cost or liability to the cooperating Party) in any attempts to obtain confidential treatment of such disclosed information. Except as set forth in clause above or in Section 4.6, the Parties' obligations pursuant to this Section 17.24 shall terminate as to a Phase upon the Close of Escrow for such Phase. In the event that the City obtains a request pursuant to the provisions of the public records act to disclose any of Developers' Tustin Jamboree Parcel IA DDA 74 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) information which the City is required to keep confidential pursuant to the terms of this Agreement, the City shall provide Developer with prompt written notice thereof and the City and Developer shall cooperate, at Developer's sole cost, to seek to avoid disclosure of such matters to the extent legally permissible pursuant to the provisions of the public records act. 17.25 Proprietary and Governmental Roles; Actions by Parties. Except where clearly and expressly provided otherwise in this Agreement, the capacity of the City in this Agreement shall be as owner, lessor, assembler, redeveloper and/or seller of property only ("Proprietary Capacity"), and any obligations or restrictions imposed by this Agreement on the City, shall be limited to that capacity and shall not relate to, constitute a waiver of, supersede or otherwise limit or affect the exercise by the City of its governmental authority with respect to any matter related to this Agreement which shall include the regulation and entitlement of the Property pursuant to Governmental Requirements, including enacting laws, inspecting structures, reviewing and issuing permits, and all of the other legislative and administrative or enforcement functions of each pursuant to federal, state or local law ("Governmental Capacity"). In addition, nothing in this Agreement shall supersede or waive any discretionary or regulatory approvals required to be obtained from the City under applicable Governmental Requirements that have not been obtained as of the Effective Date. 17.26 No Merger. None of the provisions of this Agreement shall be merged with or extinguished by any Ground Lease or any other instrument transferring title to any portion of the Property and neither the Ground Leases, nor any other instrument transferring title to any portion of the Property shall affect this Agreement. Nothing contained herein shall be deemed a conveyance by the City of any fee interest or leasehold interest in the Property. {Signature pages follow } Tustin Jamboree Parcel IA DDA 75 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) IN WITNESS WHEREOF, the City and Developer have signed this Agreement as of the date first set forth above. Dated: APPROVED AS TO FORM wo David Kendig, City Attorney Armbruster Goldsmith & Delvac LLP Special Tustin Counsel wo Amy E. Freilich Dated: "CITY" CITY OF TUSTIN By: Jeffrey C. Parker City Manager "DEVELOPER" JHC-ACQUISITIONS LLC, a California limited liability company By: Name: Title: By: Name: Title: {Escrow Joinder on followingpage} Tustin Jamboree Parcel IA DDA S-1 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) JOINDER OF ESCROW HOLDER The undersigned is joining this Agreement to evidence its agreement to receive, hold and disburse funds provided to it in accordance with the terms of this Agreement and otherwise to comply with the escrow instructions set forth in this Agreement. FIRST AMERICAN TITLE INSURANCE COMPANY IM Name: Title: Tustin Jamboree Parcel IA DDA S-2 City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) LIST OF ATTACHMENTS ATTACHMENT 1 GLOSSARY OF DEFINED TERMS ATTACHMENT 2 LEGAL DESCRIPTION OF SITE ATTACHMENT 3 CONCEPTUAL SITE MAP (SHOWING PHASE I PARCEL, PHASE It PARCEL, COMMON AREA AND LIFOC PARCELS) ATTACHMENT 4 LIST OF ENVIRONMENTAL REPORTS AND STATEMENTS Tustin Jamboree Parcel IA DDA List of Attachments City of Tustin/Jamboree Housing Corp. 11-13-2018 (agd) ATTACHMENT I GLOSSARY OF DEFINED TERMS For purposes of this Agreement, the following capitalized terms shall have the following meanings: "Access License" shall mean the access license in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, which shall provide Developer with a license to permit Developer and its contractors and consultants to enter upon the portions of the Property not then subject to a Ground Lease for purposes of grading and construction of the Improvements required in connection with construction of the Phase of the Project for which a Ground Lease has been executed. "Action" shall have the meaning set forth in Section 17.2. "Active Negligence" shall mean an affirmative act performed negligently and not a failure to act. "Agreement" shall mean this Tustin Legacy Disposition and Development Agreement including all Attachments attached hereto. "ALTA Policy" shall mean an ALTA extended coverage leasehold policy of insurance for Phase I or Phase 11 as such term is used in Sections 6.2 and 6.3. "ALTA Policies" shall mean the ALTA Policy of insurance for Phase I and Phase 11, collectively. "Approved Plans" shall mean collectively the approvals required by the City which govern development of improvements on the Property, including approval of plans by the City in its Governmental Capacity pursuant to the Design Review process and approval by the City of construction levels drawings as required to obtain the Entitlements. "Assignment Agreement" shall have the meaning set forth in Section 2.2.3(b). "Bankruptcy" shall mean any proceeding involving Developer under the United States Bankruptcy Code or any similar state or federal statute for the relief of debtors. "Base Closure Law" shall have the meaning set forth in Section 1.1.1. "Basic Concept Plan" shall mean the submittals by Developer to the City for purposes of satisfaction of the Design Review approval. Tustin Jamboree Parcel IA DDA 1 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "Business Day(s)" shall mean any day on which City Hall is open for business and shall specifically exclude Fridays when City Hall is officially closed, Saturday, Sunday or a legal holiday. "CDLAC" shall have the meaning set forth in Section 8.11. "CEQA" shall mean the California Environmental Quality Act and implementing regulations and guidelines, contained in Cal. Public Resources Code Section 21000 et seq., and Cal. Code of Regulations, title 14, Section 15000 et seq., respectively. "Certificate of Compliance" shall mean either a Partial Certificate of Compliance or a Final Certificate of Compliance, as the case may be. "City" shall mean the City of Tustin and each assignee or successor to the City's rights, powers and responsibilities as described in Section 1.4.1. "City" shall have the meaning set forth in the preamble to this Agreement. "City Attorney" shall mean the individual appointed by the City Council as "City Attorney." "City Closing Conditions" shall have the meaning set forth in Section 7.2.2. "City Code" shall mean the Tustin City Code for the City of Tustin, California, as the same may be amended from time to time. "City Council" shall mean the City Council of the City of Tustin which serves as the City's legislative body. "City Excluded Information" shall mean information that is (a) known by the City prior to the disclosure thereof by Developer or its officers, employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns, (b) developed by or on behalf of the City without the use of any confidential information provided by Developer or its officers, employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns, (c) disclosed to the City by a third party other than Developer or any of its officers, employees, agents, attorneys, affiliates, representatives or contractors, or (d) known to the public through no act or fault of the City in violation of this Agreement. "City Guarantor Illiquidity Event" shall have the meaning set forth in Section 4.6.5. "City Hall" shall mean the seat of government for the City of Tustin, presently located at 300 Centennial Way, Tustin, California. "City Indemnified Parties" shall have the meaning set forth in Section 10.1. Tustin Jamboree Parcel IA DDA 2 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "City Loan" shall mean the residual receipts loan in the amount of One Million Five Hundred Thousand Dollars ($1,500,000) to be made by the City of Tustin to the Phase I development, which shall bear interest at the annual rate of three percent (3%) simple interest, with a fifty-five (55) year term, and repayment out of 50% of available net cash flow for Phase I. "City Manager" shall mean Mr. Jeffrey Parker, or his successor in such capacity, or other designee as identified in writing by the City Manager. "City Representatives" shall have the meaning set forth in the paragraph following Section 3.3.8. "Claim" or "Claims" shall mean any and all claims, actions, causes of action, demands, orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including attorneys' fees, fees of expert witnesses, and consultants' and court and litigation costs), costs and expenses attributable to compliance with judicial and regulatory orders and requirements, fines, penalties, liens, taxes, or any type of compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen. "Close of Escrow" shall mean, as to each Phase, the close of escrow for the Property associated with such Phase and execution and delivery by the Parties of the Ground Lease applicable to such Phase, and execution and recordation of the Other Agreements and additional documents associated therewith, as more fully set forth in Section 7. "Closing Conditions" shall mean Developer Closing Conditions and the City Closing Conditions. "Closing Date" shall have the meaning set forth in Section 7.1.1. "Common Area Improvements" shall mean all swimming pools, clubhouses, child yards, roadways, infrastructure and other amenities of the Project to be available for and used in common by the tenants of all Units on the Property. "Common Areas" shall mean the Common Area Improvements and the land upon which such improvements are located. "Complete" and "Completion" shall mean, with respect to the Project the point in time when all of the following shall have occurred with respect to the Project: (1) the Improvements with respect thereto have been completed in accordance with this Agreement; (2) the issuance of a permanent certificate of occupancy by the City or, to the extent a certificate of occupancy is not required by the City for a particular Improvement, the equivalent final inspection, signoff or other permit activity with respect to such Improvement, (3) the Recording of a Notice of Completion (California Civil Code Section 8182) by Developer, its Successor Lessee or such Party's contractor; (4) a certification by the Project Architect that such Improvements (with the exception of minor "punch list" items) have been completed in a good and workmanlike manner and Tustin Jamboree Parcel IA DDA 3 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) substantially in accordance with the approved plans and specifications; and (5) any mechanic's liens that have been recorded or stop notices that have been delivered have been paid, settled or otherwise extinguished, discharged, released, waived, bonded around or insured against. "Completion Guaranty" means a guaranty, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, in which the City is a named beneficiary of a guaranty by the Guarantor of payment for all Development Costs and the faithful performance and completion (within the respective times provided in this Agreement) of the Project and the Improvements and the other matters agreed to by the Parties, in accordance with this Agreement. "Conceptual Site Map" shall mean the site plan attached hereto as Attachment 3. "Construction Loan" shall mean a secured loan made by a Permitted Mortgagee to Developer for each Phase that will be secured by a first lien deed of trust on the leasehold interest of Developer in and to the Property, the loan documents for which have been approved by the City as part of the Updated Financing Plan and otherwise in accordance with this Agreement, and the proceeds of which may be used by Developer only to pay of rent and other sums due under the Ground Lease, construct the Improvements and pay other Development Costs. "Control" "Controlled" or "Controlling", as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the power to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests, acting as the manager of a limited liability company, or otherwise. Notwithstanding the foregoing, the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute Control if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the power to direct or cause the direction of the management and policies of such other Person. "Controlling Person" shall mean (i) any Person who Controls Developer and (ii) any Person who Controls a Controlling Person. Notwithstanding the foregoing, if a Person has the right to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of Developer, such Person shall not be deemed to be a Controlling Person unless such Person also possesses, directly or indirectly (including through one or more intermediaries), the power to direct or cause the direction of the management and policies of Developer. "Costs" shall have the meaning set forth in Section 17.2. "DDA Transaction Expenses" shall mean the City's predevelopment and implementation costs incurred in connection with this Agreement, the Other Agreements and/or the Project, and each and every component thereof, and shall include (a) City staff costs; and (b) the costs of third Tustin Jamboree Parcel IA DDA 4 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) party consultants, legal counsel, appraisers, financial, engineering and other consultants and any other expenditures required in connection with the negotiation of this Agreement, the Required Agreements, implementation, amendment, modification and/or termination of this Agreement and/or the Other Agreements (including any requested modification to the attachments thereto; the review and approval of requested Transfers, Transferees, Permitted Mortgages and Permitted Mortgages and documentation submitted by Developer or any proposed Transferee or Mortgagee in connection therewith), occurring at any time from the Effective Date until, as to each of the Phase I Parcel and the Phase 11 Parcel, the Close of Escrow for such Parcel. The City Transaction Expenses shall not include costs or fees incurred by the City for processing of Entitlements or for the matters set forth in Section 1.8.4. "Decision" shall have the meaning set forth in Section 17.2. "Default" shall mean a Potential Default and/or Material Default, as the context requires. "Default Notice" shall have the meaning set forth in Section 14.1. "Default Rate" shall mean an interest rate of eight percent (8%) per annum, compounded annually, but in no event in excess of the maximum legal rate. "Defaulting Party" shall have the meaning set forth in Section 14.1. "Deferred Developer Fee" shall mean the portion of the Developer Fee which is not payable from tax credit capital contributions or loan proceeds. "Design Review" shall mean collectively the concept plan review required by the Specific Plan and the site plan and design review approvals as required by the City Code, which shall be part of the Entitlements. "Developer" shall have the meaning set forth in the preamble to this Agreement. "Developer Affiliate" shall mean any Person that is Controlled by Jamboree. "Developer Closing Conditions" shall have the meaning set forth in Section 7.2.1. "Developer Closing Payment" shall have the meaning set forth in Section 4.3.3. "Developer Excluded Information" shall mean information that is (a) known by Developer prior to the disclosure thereof by the City or its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns, (b) developed by or on behalf of Developer without the use of any confidential information provided by the City or its officers, employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns, (c) disclosed to Developer by a third party other than the City or any of its elected and appointed officials, employees, agents, attorneys, affiliates, Tustin Jamboree Parcel IA DDA 5 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) representatives or contractors, or (d) known to the public through no act or fault of Developer in violation of this Agreement. "Developer Partners" shall have the meaning set forth in Section 1.4.2 "Developer Representatives" shall have the meaning set forth in the paragraph following Section 3 1 17 "Developer Title Endorsements" shall have the meaning set forth in Section 6.3. "Developer Title Policy" shall have the meaning set forth in Section 6.3. "Development Costs" shall have the meaning set forth in Section 8.1.2. "Development Partners" shall have the meaning set forth in Section 1.4.2. "Development Permits" shall include any conditional use permit, site plan, grading permit, foundation permit, construction permit, building permit or other permit type as may be necessary pursuant to Chapter 4 of the Specific Plan and/or the City Code. "Diligence Notice" shall have the meaning set forth in Section 5.1. "Disapproved Exception" shall have the meaning set forth in Section 6.2.1 and/or Section 6.2.2. "DTSC" shall mean the California Department of Toxic and Substance Control. "Due Diligence Information" shall mean any and all information or documentation relating to the Property furnished to Developer by the City, or its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors or consultants, in connection with Developer's due diligence pursuant to Section 5.1. "Due Diligence Period" shall have the meaning set forth in Section 5.1. "Easement Agreement" shall mean that certain Easement Agreement to be entered into by the City and Developer, in form and substance approved by each in its sole discretion as one of the Required Agreements, providing, among other things, vehicular and pedestrian ingress and egress across the Phase I Parcel for the benefit of the Phase II Parcel and operation, management, maintenance, repair and replacement of the Common Areas. "EBS" shall have the meaning set forth in Section 4.5. 1 (b)(iii). "Effective Date" shall have the meaning set forth in the first paragraph of this Agreement. "ENA" shall have the meaning set forth in Section 1.1.5. Tustin Jamboree Parcel IA DDA 6 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "Entitlements" shall mean all discretionary land use approvals and entitlements legally required by the City or any other Governmental Authority as a condition to development of the Property and construction of the Improvements shown in the Scope of Development and the Approved Plans (other than foundation permits, construction permits and building permits) as the same may be modified from time to time with the approval of the City and includes: (a) the density bonus application, density transfer application, density bonus exception and related concessions and incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with California Government Code Section 65915(1) (b) the Design Review; (c) the Preliminary Plans, (d) the statutory development agreement, (e) the Approved Plans and (f) any Subdivision Map applied for by Developer. "Environmental Agency" shall mean the United States Environmental Protection Agency; the California Environmental Protection Agency and all of its sub -entities, including any Regional Water Quality Control Board, the State Water Resources Control Board, the Department of Toxic Substances Control, the South Coast Air Quality Management District, and the California Air Resources Board; the City; any Fire Department or Health Department with jurisdiction over the Property; and/or any other federal, State, regional or local governmental agency or entity that has or asserts jurisdiction over Hazardous Substance Releases or the presence, use, storage, transfer, manufacture, licensing, reporting, permitting, analysis, disposal or treatment of Hazardous Materials in, on, under, about, or affecting the Project. "Environmental Indemnity" shall mean the indemnity provided in favor of the City set forth in Section 10.2 "Environmental Laws" shall mean any federal, state, regional or local laws, ordinances, rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory decrees, judgments and orders and common law, including those relating to industrial hygiene, public safety, human health, or protection of the environment, or the reporting, licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage, discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous Materials. Environmental Laws shall include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) ("CERCLA"); the Resource Conservation and Recovery Act, as amended, (42 U.S.C. Section 6901 et seq.) ("RCRA"); the federal Water Pollution Control Act, as amended, (33 U. S.C. Section 1251 et seq.); the Toxic Substances Control Act, as amended, (15 U.S.C. Section 2601 et seq.); the Hazardous Substances Account Act (Chapter 6.8 of the California Health and Safety Code Section 25300 et seq.); Chapter 6.5 commencing with Section 25100 (Hazardous Waste Control) and Chapter 6.7 commencing with Section 25280 (Underground Storage of Hazardous Substances) of the California Health and Safety Code; and the California Water Code, Sections 13000 et seq. "Escrow" shall have the meaning set forth in Section 4.4. Tustin Jamboree Parcel IA DDA 7 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "Escrow Holder" shall mean First American Title Insurance Company. "Extremely Low Income Household" shall mean a household occupied by persons and families whose gross income does not exceed the applicable limits established by TCAC for extremely low income households in Orange County, California. "Final Certificate of Compliance" shall mean a certificate to be issued by the City upon satisfaction of all conditions precedent for a Certificate of Compliance for the second Phase of the Project to be Completed. "Federal Deed" shall mean Quitclaim Deed H and Environmental Restriction Pursuant to Civil Code Section 1471 dated May 13, 2002, that was recorded on May 14, 2002 in the Official Records as Instrument Number 20020404598. "Federal Government" shall mean the United States of America, by and through the Secretary of the Navy, or designee. "Final EIS/EIR" shall have the meaning set forth in Section 1.1.2. "Financing Plan" shall have the meaning set forth in Section 4.6.1. "First Party" shall have the meaning set forth in Section 17.7.3. "Force Majeure Delay" shall have the meaning set forth in Section 17.7. 1. as limited by Section 17.7.2. "Foreclosure" shall mean the foreclosure of any Permitted Mortgage (or any sale thereunder), whether by judicial proceedings, by virtue of any power of sale under the Permitted Mortgage, by acceptance of a deed -in -lieu of foreclosure, or by any other conveyance of all or any portion of the Property and/or Improvements by other appropriate proceedings in the nature of a foreclosure, resulting in the Transfer of all or any portion of the Property and/or Improvements to (a) any Permitted Mortgagee, (b) any entity that Controls Permitted Mortgagee, is Controlled by Permitted Mortgagee, or is Controlled by an entity that also Controls Permitted Mortgagee, (c) any participating lender in the Construction Loan (excluding Developer or any Developer Affiliate), and/or (d) any agent or nominee for one or more of the lenders in clauses (a) through (c) under the Permitted Mortgage that secures the Construction Loan. "FOST" shall mean the Department of Navy finding and determination that the Parcel was suitable for transfer to the City, pursuant to document entitled "Finding of Suitability to Transfer For Parcels 23, 29, 34, 35, and 36 and Portions of 1, 16, 17, 24, 27, 28, 40, and 41 Marine Corps Air Station Tustin, California" dated April 22, 2002. "General Partner" shall have the meaning set forth in Section 1.4.2. Tustin Jamboree Parcel IA DDA 8 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "General Plan" shall mean the most current general plan for the City of Tustin. "Governmental Authority" shall mean any and all federal, State, county, municipal and local governmental and quasi -governmental bodies and authorities (including the United States of America, the State of California and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over the Parties, the Project, the Property, or other property upon which Developer is obligated to construct Improvements or such portions of the foregoing as the context indicates. "Governmental Capacity" shall have the meaning set forth in Section 17.25. "Governmental Requirements" shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or other affecting the Parties, the Project, the Improvements, the Property, and/or other property upon which Developer is obligated to construct Improvements or any component thereof and including the City Code, the Specific Plan, the Entitlements and the Approved Plans. "Ground Lease" shall mean either the Phase I Ground Lease or the Phase II Ground Lease, as the case may be, individually. "Ground Leases" shall mean shall mean the Phase I Ground Lease and the Phase 11 Ground Lease, collectively. "Guarantor" shall mean Jamboree, or in the event of a City Guarantor Illiquidity Event for which a replacement guarantor is provided as described in Section 4.6.41 shall mean a Person meeting the Minimum Liquidity Standards established in Section 4.6.4 and approved by the City in its sole discretion as the guarantor with respect to the Completion Guaranty. "Hazardous Materials" shall mean and include the following: (a) "Hazardous Substance", "Hazardous Material', "Hazardous Waste", or "Toxic Substance" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. subsection 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. subsection 5101, et seq., or the Resource Conservation and Recovery Act, 42 U.S.C. subsection 6901, et seq.; (b) An "Extremely Hazardous Waste", a "Hazardous Waste", or a "Restricted Hazardous Waste", under subsections 25115, 25117, or 25122.7 of the California Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the California Health and Safety Code; Tustin Jamboree Parcel IA DDA 9 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) (c) "Hazardous Material', "Hazardous Substance", "Hazardous Waste", "Toxic Air Contaminant", or "Medical Waste" under subsections 25281, 25316, 25501, 25501.1, 117690 or 39655 of the California Health and Safety Code; (d) "Oil' or a "Hazardous Substance" listed or identified pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any other hydro carbonic substance or by-product; (e) Listed or defined as a "Hazardous Waste", "Extremely Hazardous Waste", or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the California Code of Regulations; (f) Listed by the State of California as a chemical known by the State to cause cancer or reproductive toxicity pursuant to Section 25249.9(a) of the California Health and Safety Code; (g) A material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures damages or threatens to damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or public agency requires in order for the property to be put to any lawful purpose; (h) Any material whose presence would require remediation pursuant to the guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank; (i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. subsection 136 et seq.; 0) Asbestos, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. subsection 2601 et seq.; (k) Any radioactive material including any "source material", "special nuclear material", "by-product material", "low-level wastes", "high-level radioactive waste", "spent nuclear fuel" or "transuranic waste", and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U. S.C. subsection 2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. subsection 10101 et seq., or pursuant to the California Radiation Control Law, California Health and Safety Code Section 114960 et seq.; (1) Regulated under the Occupational Safety and Health Act, 29 U.S.C. subsection 651 et seq., or the California Occupational Safety and Health Act, California Labor Code subsection 6300 et seq.; and/or Tustin Jamboree Parcel IA DDA 10 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) (m) Regulated under the Clean Air Act, 42 U.S.C. subsection 7401 et seq. or pursuant to Division 26 of the California Health and Safety Code. "Horizontal Improvements" shall mean the on-site and off-site infrastructure improvements and utilities required to be constructed or installed on or in connection with the development of the Property as shall be further described in the Scope of Development, including (a) all private streets, roadways, drives, alleyways, sidewalks and surface parking lots; (b) all utilities required for the Project to the boundary of each building containing Units; and (c) the Common Areas to the extent described on Attachment 3. "Improvements" shall mean Vertical Improvements and the Horizontal Improvements collectively. "Independent Contract Consideration" shall have the meaning set forth in Section 1.8.1. "Injured Party" shall have the meaning set forth in Section 14.1. "Investigation(s)" shall mean any observation, inquiry, examination, sampling, monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying of or concerning the Property, or any other property upon which Developer is required to construct Improvements, including the air, soil, surface water, and groundwater, and the surrounding population or properties, or any of them, to characterize or evaluate the nature, extent or impact of Hazardous Materials. "Jamboree" shall have the meaning set forth in Section 1.1.5. "JHC" shall mean JHC-ACQUISITIONS LLC, a California limited liability company. "Key Employees" shall mean the following employees of Developer: Michael Massie, Laura Archuleta, and Victoria Ramirez. "LIFOC" shall have the meaning set forth in Section 1.1.3. "Liquidity" shall mean cash, marketable securities and other cash equivalents and the aggregate amount of uncalled capital commitments of Guarantor. "Liquidity Covenants" shall have the meaning set forth in Section 4.7.1. "Lower Income Household" shall mean a household occupied by persons and families whose gross income does not exceed the applicable limits established by TCAC for lower income households in Orange County, California. "Manager" shall have the meaning set forth in Section 1.4.2(a). "Material Default" shall have the meaning set forth in Section 14.2.1 and 14.2.2. Tustin Jamboree Parcel IA DDA 11 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "MCAS Tustin" shall have the meaning set forth in Section 1.1.1. "Memorandum of Agreement" shall have the meaning set forth in Section 1.1.3. "Memorandum of Ground Lease" shall mean a memorandum of record of the Ground Lease for a Phase recorded against the Property for such Phase, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion. "Minimum Liquidity Standards" shall have the meaning set forth in Section 4.6.4. "Mortgage" shall mean any indenture of mortgage or deed of trust, bond, grant of taxable or tax exempt funds from a governmental agency or other security interest and the documents governing a sale-leaseback transaction, together with all loan documents related thereto. "Mortgagee" shall mean any mortgagee or beneficiary (or any agent for one or more lenders acting in such capacity) under any indenture of mortgage or deed of trust, trustee of bonds, governmental agency which is a grantor of funds, and, with respect to the Parcel or any portion thereof which is the subject of a sale-leaseback transaction, the Person acquiring fee title. "Navy" shall mean the United States Department of Navy. "Net Worth" shall mean the net worth of Guarantor which shall be determined based on (x) the fair market value of the assets of each of the Persons comprising Guarantor (including the aggregate amount of uncalled capital commitments from such Persons' direct and/or indirect limited partners, and intangible assets including goodwill, intellectual property, licenses, organizational costs, deferred amounts, covenants not to compete, unearned income, restricted funds, investments in subsidiaries or other Affiliates, intercompany receivables and accumulated depreciation), less (y) all liabilities of the Persons comprising Guarantor (as determined in accordance with GAAP). "Notice of Completion" shall mean the notice of completion filed by Developer after the Completion of each Improvement, pursuant to California Civil Code Section 8182. "Original ALTA Coverage" shall have the meaning set forth in Section 6.3. "Other Agreements" shall mean the Ground Leases, the Memorandum of Ground Lease(s), the Special Restrictions, the Easement Agreement, the Landscape Installation and Maintenance Agreement, the Access License(s), if any, and the Affordable Housing Covenant. "Outside Closing Date" shall mean the Phase I Outside Closing Date and the Phase 11 Outside Closing Date, individually or collectively, as usage may indicate. "Parcel" shall mean either the Phase I Parcel or the Phase II Parcel, as the case may be. Tustin Jamboree Parcel IA DDA 12 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "Partnership Agreement" shall have the meaning set forth in Section 4.6.2(b). "Party" shall mean either of the City or Developer, individually, as parties to this Agreement. "Parties" shall mean the City and Developer, collectively. "PERF" shall have the meaning set forth in Section 5.3. "Permitted Exceptions" shall have the meaning set forth in Section 6.2 as may be modified by Section 6.3. "Permitted Mortgage" shall mean any indenture of mortgage or deed of trust, bonds, grant of taxable or tax-exempt funds from a governmental agency or other conveyance of a security interest in lessee's interest in the Ground Leases, or any one thereof, to a Permitted Mortgagee or the conveyance of Developer's interest in the Ground Leases, or any one thereof, to the Permitted Mortgagee or its Successor Lessee or purchaser in connection with a Foreclosure which satisfies all of the criteria set forth in the Ground Lease. "Permitted Mortgagee" shall mean a Mortgagee entitled to the Permitted Mortgagee protections provided by the Ground Leases. "Permitted Transfer" shall have the meaning set forth in Section 2.2. "Person" shall mean an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, governmental agency or other entity, domestic or foreign. "Phase I" shall have the meaning set forth in Section 1.3.2. "Phase I Ground Lease" shall have the meaning set forth in Section 4.1. "Phase I Outside Closing Date" shall have the meaning set forth in Section 7.1.2. "Phase I Parcel" shall have the meaning set forth in Section 1.2.1. "Phase I Property" shall have the meaning set forth in Section 4.2. "Phase I Units" shall have the meaning set forth in Section 13.1. "Phase II" shall have the meaning set forth in Section 1.3.2. "Phase II Ground Lease" shall have the meaning set forth in Section 4.1. Tustin Jamboree Parcel IA DDA 13 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "Phase II Outside Closing Date" shall have the meaning set forth in Section 7.1.2. "Phase II Parcel" shall have the meaning set forth in Section 1.2.2. "Phase II Property" shall have the meaning set forth in Section 4.2. "Phase II Units" shall have the meaning set forth in Section 13.1. "Potential Default" shall have the meaning set forth in Section 14.1. "Preliminary Title Reports" shall have the meaning set forth in Section 6.2.1. "Prevailing Party" shall have the meaning set forth in Section 17.2. "Prevailing Wage Law" shall have the meaning set forth in Section 8.9. "Products" shall have the meaning set forth in Section 14.3.2. "Project" shall have the meaning set forth in Section 1.3.2. "Project Architect" shall mean Architecture Design Collaborative. "Project Fair Share Contribution" shall have the meaning set forth in Section 8.5.2. "Property" shall mean the Phase I Property and the Phase 11 Property, collectively. "Proprietary Capacity" shall have the meaning set forth in Section 17.25. "Qualified Institutional Lender" shall mean a (a) nationally chartered bank, national association, federal association bank, savings and loan association, investment bank, state chartered bank, lending institution, pension fund, insurance company or other institutional lender which is duly established and in the business of financing the size and type of development contemplated hereunder, and such term shall include but not be limited to Fannie Mae, Freddie Mac, FHA, Citibank, Wells Fargo, Union Bank, US Bank, and Bank of America or (b) any governmental agency or j oint powers authority or indentured trustee acting for or on behalf of such Person. "Qualified Tax Credit Investor" shall mean (a) a Person who (i) is an experienced limited partner and investor in multifamily housing developments receiving Tax Credits, and (ii) has obtained or is contractually obligated to obtain a limited partnership or limited liability company membership interest in Developer whereby it will receive an allocation some or all of the Tax Credits obtained in connection with the Project, "Quimby Fees" shall mean the fees payable by Developer to City in order to achieve compliance with the Quimby Act, as further described in California Government Code § 66477. Tustin Jamboree Parcel IA DDA 14 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "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. "Recordable" shall mean with respect to any document, that such document has been acknowledged and is otherwise in a form that would permit the Recordation thereof. "Release" (with respect to Hazardous Materials) shall mean any releasing, or threat of releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing, or dumping into the environment. "Released Party" and "Released Parties" shall have the meanings set forth in Section 4.5.3. "Releasing Party" shall have the meaning set forth in Section 4.5.3. "Remediate" or "Remediation' shall mean any response or remedial action as defined under Section 101(25) of CERCLA, and similar actions with respect to Hazardous Materials as defined under comparable state and local laws, and any other cleanup, removal, containment, abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or other mitigation or remediation of Hazardous Materials or Releases required by any Environmental Agency or within the purview of any Environmental Laws. "Reuse Plan" shall have the meaning set forth in Section 1.1.1. "Schedule of Performance" shall mean the document, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion, setting forth the dates and time periods for submissions, approvals and actions, including the construction of the Improvements for each Phase. "Scope of Development" shall mean the description of the Project, in form and substance acceptable to each of the Parties as further set forth in Section 4.6.5 or as otherwise agreed by the Parties, each in its sole discretion. "Second Party" shall have the meaning set forth in Section 17.7.3. "Site" shall have the meaning set forth in Section 1.2. "Special Restrictions" shall have the meaning set forth in Section 12.1. "Specific Plan" shall mean the MCAS Tustin Specific Plan/Reuse Plan as the same has been or shall be amended from time to time. "State" shall mean the State of California. Tustin Jamboree Parcel IA DDA 15 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "Subdivision Map" shall mean any tentative or final map for the Property approved by the City in accordance with the Subdivision Map Act and the City Municipal Code. "Subdivision Map Act" shall mean the California Subdivision Map Act as codified in Cal. Government Code Section 66410 et seq. "Successor Lessee" shall mean each and every Person holding the rights and interest of lessee under any Ground Lease as to all or any portion of the Property and shall include sublessees. "Supplemental Title Report" shall have the meaning set forth in Section 6.2.2. "Survey" shall have the meaning set forth in Section 6.1. "Surveyor" shall have the meaning set forth in Section 6.1. "Tax Credits" shall mean any Federal Credits available under Section 42 of the Internal Revenue Code which are allocated and administered TCAC and/or any California state credits available under Section 12206 of the California Revenue and Taxation Code which are allocated and administered by the California Tax Credit Allocation Committee. "Tax Exempt Reservation Letter" shall have the meaning set forth in Section 7.2.1(h "TCAC" shall have the meaning set forth in Section 1.3.4. "TCAC Application" shall have the meaning set forth in Section 4.6.1. "Title Company" shall mean First American Title Insurance Company. "Title Policy Amount" shall have the meaning set forth in Section 6.2.1. "Total City Transaction Expenses" shall have the meaning set forth in Section 1.8.2. "Transfer" shall mean (a) the transfer, sale, assignment, lease, license, entry into a property management agreement, gift, hypothecation, mortgage, pledge or encumbrance, or other similar conveyance of Developer's interests in this Agreement, all or any portion of the Property, the Improvements thereon, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, or any agreement to do so; and (b) the granting of any Mortgage, easement, license, lien or other encumbrance and/or the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, the Improvements thereon, or any portion thereof or interest therein. "Transferable Products" shall have the meaning set forth in Section 14.3.2. Tustin Jamboree Parcel IA DDA 16 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "Transfer of Control" shall mean, with respect to Developer or Developer's Controlling Person, the occurrence, directly or indirectly, in a single transaction or a series of transactions, of any of the following: (a) the conveyance, sale, assignment, lease, transfer or disposition of all or substantially all of that Person's (or its Controlling Person's) assets, stock, membership or partnership interests or other equity interests; (b) the dissolution, merger, reorganization, share exchange, recapitalization, restructuring or consolidation of that Person (or its Controlling Person), other than a transaction that would result in all of the voting securities of that Person (or its Controlling Person) outstanding immediately prior thereto to continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50.01% of the combined voting power of all of the voting securities of that Person (or its Controlling Person) or such surviving entity outstanding immediately after such transaction; and (c) the acquisition by any "Person" or "Group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) of an aggregate of 50.01% or more of the beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934) of the issued and outstanding voting securities or other equity interests of that Person (or its Controlling Person), where such acquiring "Person" or "Group" did not directly or indirectly (or through an affiliate) already Control or own at least 50.01% of the voting securities or other equity interests of such Person (or its Controlling Person). "Transferee" shall mean any Person to which a Transfer is made, including any Successor Lessee, Mortgagee or Permitted Mortgagee. "Tustin Legacy" shall have the meaning set forth in Section 1.1.3. "Tustin Legacy Backbone Infrastructure Program" shall have the meaning set forth in Section 8.5.1. "Tustin Unified School District" shall have the meaning set forth in Section 4.1. "Unit" or "Units" shall mean the residential and permanent supportive housing units which are required to be developed on each Parcel by Developer. "Unit Lease" shall mean, as a noun, an agreement between Developer and a tenant to lease, sublease or license any Vertical Improvement or portion thereof, including any Unit or other space, and, as a verb, shall mean the leasing by Developer of any Vertical Improvement or portion thereof, including any Unit, to a tenant. "Updated Financing Plan" shall have the meaning set forth in Section 4.6.2(a). Tustin Jamboree Parcel IA DDA 17 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) "Vertical Improvements" shall mean all of the buildings, structures, landscaping and other improvements, other than the Horizontal Improvements, to be constructed or installed on the Property, consistent with the Specific Plan, the Reuse Plan, the Approved Plan, the Entitlements, and the Development Permits. "Very Low Income Household" shall mean a household occupied by persons and families whose gross income does not exceed the applicable limits established by TCAC for very low income households in Orange County, California. Tustin Jamboree Parcel IA DDA 18 City of Tustin/Jamboree Housing Corp. 11-13-2018(agd) ATTACHMENT Z LEGAL DESCRIPTION The land is situated in the City of Tustin, County of Orange, State of California, and is described as follows: LOTS 21, 22 and 23 OF TRACT NO. 17404' LOCATED IN THE CITY [>FTUSTIN, COUNTY OF ORANGE, STATE OFCALIFORNIA, ASSHOWN ONAMAP FILED INBOOK 9O7,PAGES 6 THROUGH 42 INCLUSIVE OF MISCELLANEOUS MAPS OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. / LOT XXX N49*22'29'W 25&56' LBO 0.066 AC. N85'37'51'E 14.14 co 'Or[ 21 q 0.059 AQ 0.665 AC. 0. / LOT XXX N49*22'29'W 25&56' LBO 0.066 AC. N85'37'51'E 14.14 co LOT UUU 21 q 0.059 AQ 0.665 AC. 0. SEE DETAIL 22 A=10*02'37* M51 leel;r IF. 23 Cl M51 c M51 C157 ATTACHMENT 3 CONCEPTUAL SITE MAP (SHOWING PHASE I PARCEL, PHASE II PARCEL, COMMON AREA AND LIFOC PARCELS) ,12 �m:a / e0 E S ECD • 6 r0 �' �' L U U O N�._ p �¢Ny O Z •8 z E VO'Niisni a (p U `JNisnOH 3leV( JOJJb 3 a away �Q a JlOb'J3� Nusni a _ ,12 �m:a / ATTACHMENT 4 LIST OF ENVIRONMENTAL REPORTS AND STATEMENTS 1. Department of Navy "Final Environmental Baseline Survey" dated March 2001 2. Finding of Suitability to Transfer For Parcels 23, 29, 34, 35, and 36 and Portions of 1, 16, 17, 24, 27, 28, 40 and 41 Marine Corps Air Station Tustin, California" dated April 22, 2002. 3. Finding of Suitability to Lease for Carve -Out Areas 5, 6, 7, 8, 9, 10, and 11 Marine Corps Air Station Tustin dated April 26, 2002. 4. Agreement Between The United States of America and The City of Tustin, California for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated May 13, 2002 Lease in Furtherance of Conveyance Between The United States of America and The City of Tustin, California for Portions of Former Marine Corps Air Station Tustin dated May 13, 2002. 6. Quitclaim Deed H and Environmental Restriction Pursuant to Civil Code Section 1471 dated May 13, 2002 7. Geotechnical Report of Observation and Testing During Rough Grading, Disposition Area I North and I South (Pad 1), Portion of Neighborhood G, Portion of Tract No. 17404, City of Tustin, California prepared by NMG Geotechnical dated July 11, 2012. 8. Final Summary Report for Per -and Polyfluoroalkyl Substances Sampling at Operable Unit 3, IRP Site 1, Former Marine Corps Air Station Tustin dated April 2018 9. Final Sampling and Analysis Plan for Per and Polyfluoroalkyl Substances in Groundwater in Carve -Outs 5 and 6, Former Marine Corps Air Station Tustin dated June 2018. 10. Results of the CO -5 and CO -6 PFAS sampling event dated August 29, 2018 Appendix G (Environmental Checklist Form) TusTIN CITY OF TUSTIN COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 f :� a- (714) 573-3100 : 1{Ii1 lY RUILUING OUR IUTUKL Hv�QRING OUR PAST ENVIRONMENTAL ANALYSIS CHECKLIST For Projects With Previously Certified/Approved Environmental Documents: Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the Disposal and Reuse of Marine Corps Air Station (MCAS) Tustin The following checklist takes into consideration the preparation of an environmental document prepared at an earlier stage of the proposed project. This checklist evaluates the adequacy of the earlier document pursuant to Section 15162 and 15168 of the California Environmental Quality Act(CEQA) Guidelines. A. BACKGROUND Project Title: Disposition and Development Agreement(DDA)—Jamboree Housing Lead Agency: City of Tustin 300 Centennial Way Tustin, California 92780 Lead Agency Contact Person: Jerry Craig Phone: (714) 573-3121 Project Location: Disposition Package 1A-South is a 3.55 acre parcel for multi- family development within Planning Area 15 of Tustin Legacy Specific Plan, bounded by Tustin Ranch Road on the east, Anton Legacy Apartments on the north, Park Avenue on the west, and Warner Avenue to the south. Project Sponsor's Name and Address: Jamboree Housing Corporation c/o Ms. Vicky Ramirez 17701 Cowan Avenue, Suite 200 Irvine, CA 92614 Project Description: Requesting City Council approval for execution of a Disposition and Development Agreement by and between the City of Tustin and Jamboree Housing Corporation, the site developer, for the development of a 114-unit affordable housing project. The project will be constructed in two phases with 54 units developed in phase 1 and 60 units to be developed in phase 2. A Declaration of Restrictive Covenants will be recorded against the property for a period of not less than 55 years. The proposed use is consistent with the approved Specific Plan. INITIAL STUDY City of Tustin General Plan Land Use Designation: Tustin Legacy Specific Plan Zoning Designation: Tustin Legacy Specific Plan, Planning Area 15 Surrounding Land Uses and Setting: North: Anton Legacy Apartments —Tustin Legacy Planning Area 15, Residential Core. East: City of Irvine —5.2 IBC Industrial. West: Vacant— MCAS Tustin Planning Area 8, Community Core South: The District—Tustin Legacy Planning Area 16, Commercial Previous Environmental Documentation: 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 addendums and supplements, is a program EIR under the California Environmental Quality Act (CEQA). The FEIS/EIR, addendums and supplemental considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. Other public agencies whose approval is required: ❑ Orange County Fire Authority ❑ City of Santa Ana ❑ Orange County EMA District ❑ City of Irvine ❑ South Coast Air Quality Management ❑ Other ❑ Orange County Health Care Agency Have California Native American tribes traditionally and culturally affiliated with the project area requested consultation pursuant to Public Resources Code section 21080.3.1? If so, has consultation begun? Attachments: EXHIBIT 1: Tustin Planning Area 21 INITIAL STUDY City of Tustin B. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages. ❑Aesthetics ❑ Agriculture and Forestry ❑ Air Quality Resources ❑ Biological Resources ❑ Geology/Soils ❑ Cultural Resources ❑ Greenhouse Gas Emissions ❑ Hydrology/Water Quality ❑ Hazards & Hazardous ❑ Land Use/Planning Materials ❑ Noise ❑ Population /Housing ❑ Mineral Resources ❑ Recreation ❑ Trans portation/Traffic ❑ Public Services ❑ Utilities /Service Systems ❑ Mandatory Findings of ❑ Tribal Cultural Resources Significance DETERMINATION: On the basis of this initial evaluation: ❑ I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. ❑ I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared. ❑ I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. ❑ I find that the proposed project MAY have a "potentially significant impact" or "potentially significant unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ® I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed pro'ect, nothing further is required. / Signature: Date: D l Z4 Printed Name: y6 k „X:: Al S/t-C Zeli�ifL 3 1 P a g e Appendix G (Environmental Checklist Form) C. EVALUATION OF ENVIRONMENTAL IMPACTS: See Attached. 1) A brief explanation is required for all answers except "No Impact" answers that are adequately supported by the information sources a lead agency cites in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved (e.g., the project falls outside a fault rupture zone). A "No Impact" answer should be explained where it is based on project-specific factors as well as general standards (e.g., the project will not expose sensitive receptors to pollutants, based on a project-specific screening analysis). 2) All answers must take account of the whole action involved, including off-site as well as on-site, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts. 3) Once the lead agency has determined that a particular physical impact may occur, then the checklist answers must indicate whether the impact is potentially significant, less than significant with mitigation, or less than significant. "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect may be significant. If there are one or more "Potentially Significant Impact" entries when the determination is made, an EIR is required. 4) "Negative Declaration: Less Than Significant With Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact." The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level (mitigation measures from "Earlier Analyses," as described in (5) below, may be cross-referenced). 5) Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case, a brief discussion should identify the following: a. Earlier Analysis Used. Identify and state where they are available for review. b. Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c. Mitigation Measures. For effects that are "Less than Significant with Mitigation Measures Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. 6) Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g., general plans, zoning ordinances). Reference to a previously prepared or outside document should, where appropriate, include a reference to the page or pages where the statement is substantiated. 7) Supporting Information Sources: A source list should be attached, and other sources used or individuals contacted should be cited in the discussion. 8) This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions from this checklist that are relevant to a project's environmental effects in whatever format is selected. 9) The explanation of each issue should identify: a. the significance criteria or threshold, if any, used to evaluate each question; and b. the mitigation measure identified, if any, to reduce the impact to less than significance INITIAL STUDY City of Tustin D. INITIAL STUDY Less Than No Change Potentially Significant From Significant With Mitigation Previous Issues: Impact Incorporated Analysis I. AESTHETICS. Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rocks outcroppings, and historic buildings within a state scenic highway? C) Substantially degrade the existing El ❑ visual character or quality of the site and its surroundings? d) Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? II. AGRICULTURE AND FOREST RESOURCES. In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. In determining whether impacts to forest resources, including timberland, are significant environmental effects, lead agencies may refer to information compiled by the California Department of Forestry and Fire Protection regarding the state's inventory of forest land, including the Forest and Range Assessment Project and the Forest Legacy Assessment project; and forest carbon measurement methodology provided in Forest Protocols adopted by the California Air Resources Board. 5Page INITIAL STUDY City of Tustin Potentially Less Than No Change Issues: Significant Significant With From Impact Mitigation Previous Incorporated Analysis Would the project: a) Convert Prime Farmland, Unique ❑ ❑ Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use? b) Conflict with existing zoning for ❑ ❑ agricultural use, or a Williamson Act contract? C) Conflict with existing zoning for, or cause ❑ ❑ rezoning of, forest land (as defined in Public Resources Code section 12220(g)), timberland (as defined by Public Resources Code section 4526), or timberland zoned Timberland Production (as defined by Government Code section 51104(g))? d) Result in the loss of forest land or conversion of forest land to non-forest use? e) Involve other changes in the existing ❑ ❑ environment which, due to their location or nature, could result in conversion of Farmland, to non-agricultural use or conversion of forest land to non-forest use? III. AIR QUALITY. Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct ❑ ❑ implementation of the applicable air quality plan? 61 Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Previous Mitigation Analysis Incorporated b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? C) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting ❑ El a substantial number of people? IV. BIOLOGICAL RESOURCES. Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? 7Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant With From Impact Mitigation Previous Incorporated Analysis C) Have a substantial adverse effect on 1:1 El federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the El El movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or E] E] ordinances protecting biological resources, such as a tree preservation policy or ordinance? f) Conflict with the provisions of an El El adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? V. CULTURAL RESOURCES. Would the project: a) Cause a substantial adverse change El El in the significance of a historical resource as defined in § 15064.5? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.5? C) Directly or indirectly destroy a unique El El paleontological resource or site or unique geologic feature? 8Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant With From Impact Mitigation Previous Incorporated Analysis d) Disturb any human remains, including those interred outside of formal cemeteries? Vi. GEOLOGY AND SOILS. Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury or death involving: i. Rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. ii. Strong seismic ground shaking? iii. Seismic-related ground failure, including liquefaction? iv. Landslides? b) Result in substantial soil erosion or the El El loss of topsoil? C) Be located on a geologic unit or soil El EJ that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, as defined in Table 18-1-B of the Uniform Building Code (1994), creating substantial risks to life or property? 9Pa P INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant With From Impact Mitigation Previous Incorporated Analysis e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the disposal of waste water? VII. GREENHOUSE GAS EMISSIONS. Would the project: a) Generate greenhouse gas emissions, El E either directly or indirectly, that may have a significant impact on the environment? b) Conflict with an applicable plan, policy or EJ E regulation adopted for the purpose of reducing the emissions of greenhouse gases? VIII. HAZARDS AND HAZARDOUS MATERIALS. Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? b) Create a significant hazard to the El public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? C) Emit hazardous emissions or El E handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? 10Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant With From Impact Mitigation Previous Incorporated Analysis d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? 11Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Mitigation Previous Incorporated Analysis IX. HYDROLOGY AND WATER QUALITY. Would the project: a) Violate any water quality standards or waste discharge requirements? b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table (e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? C) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off-site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on-or off-site? e) Create or contribute runoff water El which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? f) Otherwise substantially degrade water El quality? 12Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Mitigation Previous Incorporated Analysis g) Place housing within a 100-year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? h) Place within a 100-year flood hazard El area structures that would impede or redirect flows? i) Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? X. LAND USE AND PLANNING. Would the project: a) Physically divide an established El community? b) Conflict with any applicable land El use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? C) Conflict with any applicable habitat conservation plan or natural community conservation plan? 13Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Mitigation Previous Incorporated Analysis XI. MINERAL RESOURCES. Would the project: a) Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state? b) Result in the loss of availability of El El a locally-important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? XII. NOISE. Would the project result in: a) Exposure of persons to or El generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive groundborne vibration or groundborne noise levels? C) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or ❑ ❑ periodic increase in ambient noise levels in the project vicinity above levels existing without the project? 14Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Mitigation Previous Incorporated Analysis e) For a project located within an El El airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity ❑ ❑ of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? XIII. POPULATION AND HOUSING. Would the project: a) Induce substantial population El E] growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly(for example, through extension of road or other infrastructure)? b) Displace substantial numbers of El El existing housing, necessitating the construction of replacement housing elsewhere? C) Displace substantial numbers of ❑ E people, necessitating the construction of replacement housing elsewhere? 15P �1ge INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Mitigation Previous Incorporated Analysis XIV. PUBLIC SERVICES. Would the project: a) Result in substantial adverse physical ❑ impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: i. Fire protection? ❑ ii. Police protection? 11 ❑ iii. Schools? ❑ n iv. Parks? ❑ ❑ V. Other public facilities? ❑ XV. RECREATION. Would the project: a) Increase the use of existing ❑ neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include ❑ ❑ recreational facilities or require the construction or expansion of recreational facilities which have an adverse physical effect on the environment? 16Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Mitigation Previous Incorporated Analysis XVI. TRANSPORTATION /TRAFFIC. Would the project: a) Conflict with an applicable plan, ❑ ❑ ordinance or policy establishing measures of effectiveness for the performance of the circulation system, taking into account all modes of transportation including mass transit and non-motorized travel and relevant components of the circulation system, including but not limited to intersections, streets, highways and freeways, pedestrian and bicycle paths, and mass transit? b) Conflict with an applicable congestion ❑ ❑ management program, including, but not limited to level of service standards and travel demand measures, or other standards established by the county congestion management agency for designated roads or highways? C) Result in a change in air traffic ❑ ❑ patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards ❑ ❑ due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate ❑ ❑ emergency access? f) Conflict with adopted policies, plans, or ❑ ❑ programs regarding public transit, bicycle, or pedestrian facilities, or otherwise decrease the performance or safety of such facilities? 17Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Previous Mitigation Analysis Incorporated XVII. TRIBAL CULTURAL RESOURCES. Would the project cause a substantial adverse change in the significance of a tribal cultural resource, defined in Public Resources Code section 21074 as either a site, feature, place, cultural landscape that is geographically defined in terms of the size and scope of the landscape, sacred place, or object with cultural value to a California Native American tribe, and that is: a) Listed or is eligible for listing in the ❑ ❑ California Register of Historical Resources, or in a local register of historical resources as defined in Public Resources Code section 5020.1(k). b) A resource determined by the lead ❑ ❑ agency, in its discretion and supported by substantial evidence, to be significant pursuant to criteria set forth in subdivision (c) of Public Resources Code section 5024.1. In applying the criteria set forth in subdivision (c) of Public Resources Code section 5024.1, the lead agency shall consider the significance of the resource to a California Native American tribe. XVIII. UTILITIES AND SERVICE SYSTEMS. Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? 181 INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Previous Mitigation Analysis Incorporated b) Require or result in the construction ❑ ❑ of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? C) Require or result in the construction El El of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies ❑ ❑ available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the ❑ ❑ wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with El El sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and El ❑ local statutes and regulations related to solid waste? 19Page INITIAL STUDY City of Tustin Issues: Potentially Less Than No Change Significant Significant From Impact With Previous Mitigation Analysis Incorporated XVIII. MANDATORY FINDINGS OF SIGNIFICANCE. a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that ❑ ❑ are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current project, and the effects of probable future projects.) C) Does the project have ❑ ❑ environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? Note: Authority cited: Sections 21083 and 21083.05, Public Resources Code. Reference: Section 65088.4, Gov. Code; Sections 21080(c), 21080.1, 21080.3, 21082.1, 21083, 21083.05, 21083.3, 21093, 21094, 21095, and 21151, Public Resources Code; Sundstrom v. County of Mendocino, (1988) 202 Cal.App.3d 296; Leonoff v. Monterey Board of Supervisors, (1990) 222 Cal.App.3d 1337; Eureka Citizens for Responsible Govt. v. City of Eureka (2007) 147 Cal.App.4th 357; Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th at 1109; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656. 20 1 INITIAL STUDY City of Tustin 1! 93 r. ai ...M• r ° * l J1 f 10, fr r , �f 1r 1Y� t © GENERAL �j�®LQ © Figure I-7 Tustin Planning Area 21Page EVALUATION OF ENVIRONMENTAL IMPACTS Disposition and Development Agreement(DDA)—Jamboree Housing For Disposition Package 1A-South BACKGROUND 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 Marine Corp Air Station (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. 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 in conjunction with Specific Plan Amendment 2016-01 (Ordinance 1482) for the Tustin Legacy Specific Plan (formerly MCAS Tustin Specific Plan). The FEIS/EIR, along with its addendums and supplements, is a program EIR under the California Environmental Quality Act (CEQA). The FEIS/EIR, addendums and supplemental considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. The FEIS/EIR along with its Addenda and Supplement is a program EIR under the California Environmental Quality Act (CEQA). The FEIS/EIR, Addenda and Supplement considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. The FEIS/EIR, Addendums and Supplement analyzed the environmental consequences of the Navy disposal and local community reuse of the MCAS Tustin site per the Reuse Plan/MCAS Tustin Specific Plan (referred to in this document as the Specific Plan). The CEQA analysis also analyzed the environmental impacts of certain "Implementation Actions" that the City of Tustin and City of Irvine must take to implement the MCAS Tustin Specific Plan. The Tustin Legacy Specific Plan proposed and the FEIS/EIR analyzed a multi-year development period for the planned urban reuse project (Tustin Legacy). When individual discretionary activities within the Specific Plan are proposed, the lead agency is required to examine the individual activities to determine if their effects were fully analyzed in the FEIS/EIR. The agency can approve the activities as being within the scope of the project covered by the FEIS/EIR. If the agency finds that pursuant to Sections 15162, 15163, 15164, and 15183 of the CEQA Guidelines, no new effects would occur, nor would a substantial increase in the severity of previously identified significant effects occur, then no supplemental or subsequent EIR is required. Tustin Legacy is located in central Orange County and approximately 40 miles southeast of downtown Los Angeles. Tustin Legacy is that portion of the former MCAS Tustin within the City of Tustin corporate boundaries. Owned and operated by the Navy and Marine Corps for nearly 60 years, approximately 1,585 gross acres of property at MCAS Tustin were determined surplus to federal government needs, and MCAS Tustin was officially closed in July 1999. The majority of the former MCAS Tustin lies within the southern portion of the City of Tustin. The remaining approximately 73 acres lies within the City of Irvine. Tustin Legacy is in close proximity to four major freeways: the Costa Mesa (SR-55), Santa Ana (1-5), Laguna (SR-133) and San Diego (I- 405). Tustin Legacy is also served by the west leg of the Eastern Transportation Corridor (SR 261). The major roadways bordering Tustin Legacy include Red Hill Avenue on the northwest, Edinger Avenue on the northeast, Harvard Avenue on the southeast, and Barranca Parkway on the southwest. Jamboree Road and Tustin Ranch Roach transect the Property. John Wayne Airport is located approximately three miles to the south and a Metrolink Commuter Rail Station is located immediately to the northeast providing daily passenger service to employment centers in Orange, Los Angeles, Riverside, and San Diego counties. Evaluation of Environmental Impacts DDA—Jamboree Housing Page 2 PROJECT LOCATION The project site is a 3.55-acre parcel for multi-family development within Planning Area 15 of Tustin Legacy Specific Plan (Tustin Legacy) affecting Disposition Parcel 1A-South. The project site is bounded by Tustin Ranch Road on the east, Anton Legacy Apartments on the north, Park Avenue on the west, and Warner Avenue on the south. PROJECT DESCRIPTION A request to approve a Disposition and Development Agreement(DDA)for Disposition Parcel 1A- South between the applicant and the City specifying the City's intent to lease the project site property for a term of 55 years and the applicant's intent to lease and develop the proposed project on the site. The proposed development would include the construction of 114 affordable multi-family residential apartment homes with 65 extremely low income, 33 very low income, and 14 low income units, with two units reserved for property managers. Phase 1 and Phase 2 of this project would be constructed simultaneously and include approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project provides permanent supportive and family housing within a new four-story affordable apartment community. The proposal requests City of Tustin consideration of a Disposition and Development Agreement (DDA)for the proposed development of Tustin Legacy Disposition Package 1A-South. EVALUATION OF ENVIRONMENTAL IMPACTS An Environmental Analysis Checklist has been completed and it has been determined that this Project is within the scope of the Prior Environmental Review and that pursuant to Public Resources Code Section 21166 and Title 14 California Code of Regulations Sections 15162 and 15168(c), there are no substantial changes in the project requiring major revisions to the Prior Environmental Review, no substantial changes with respect to the circumstances under which the project is being undertaken which will require major revisions to the Prior Environmental Review, or any new information which was not known and could not have been known at the time the Prior Environmental Review was certified showing that: (1) the project will have any new significant effects; (2) significant effects previously examined will be substantially more severe; (3)mitigation measures or alternatives previously determined to be infeasible will now be feasible and would substantially reduce one or more significant effects of the project but the City declined to adopt the mitigation measure or alternative; or (4) mitigation measures or alternatives considerably different from those previously analyzed would substantially reduce one or more significant effects on the environment, but the City declined to adopt the mitigation measure or alternative. Accordingly, no new environmental document is required by CEQA. The following information provides background support for the conclusions identified in the Environmental Analysis Checklist. Evaluation of Environmental Impacts DDA— Jamboree Housing Page 3 I. AESTHETICS—Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to,trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site and its surroundings? d) Create a new source of substantial light or glare, which would adversely affect day or nighttime views in the area? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. The project is not located on a scenic highway nor will it affect a scenic vista. The project would be consistent with the permitted uses identified within the Tustin Legacy Specific Plan. The development of residential apartment units within Planning Area 15 were considered within the FEIS/EIR and will have no negative aesthetic effect on the site when mitigation measures identified in the FEIS/EIR are incorporated with approval of the project.All exterior design is required to comply with Section 3.19 — Urban Design Guidelines of the Tustin Legacy Specific Plan. The project will include a Development Agreement and design review application, which requires that the Planning Commission and City Council review and ensure the design of the project, if approved, is found to be cohesive and in harmony with surrounding uses. All exterior lighting would be designed to reduce glare, create a safe night environment, and avoid impacts to surrounding properties in compliance with Section 3.19 of the Tustin Legacy Specific Plan and the City's Security Ordinance. The proposed project will result in no substantial changes to the environmental impacts previously evaluated with the certified Program FEIS/EIR, the Supplemental and Addendum. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to agricultural resources. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: No new impacts nor substantially more severe aesthetic impacts would result from the adoption and implementation of the Project; therefore, no new or revised mitigation measures are required for aesthetics and visual quality. No refinements related to the Project are necessary to the FEIS/EIR mitigation measures and no new mitigation measures are required. Mitigation measures were adopted by the Tustin City Council in the FEIS/EIR, Addendum and Supplement; and applicable measures will be required to be complied with as conditions of entitlement approvals for future development of the site. Evaluation of Environmental Impacts DDA— Jamboree Housing Page 4 Sources: Field Observations FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-83 through 3-87, 4-109 through 114), Addendum (Page 5-3 through 5-7) and Addendum 2 (Page 24 through 26) Tustin Legacy Specific Plan (Page 3-36 through 3-39, 3-56 through 3-76) Tustin General Plan ll. AGRICULTURE AND FOREST RESOURCES: In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. In determining whether impacts to forest resources, including timberland, are significant environmental effects, lead agencies may refer to information compiled by the California Department of Forestry and Fire Protection regarding the state's inventory of forest land, including the Forest and Range Assessment Project and the Forest Legacy Assessment project; and forest carbon measurement methodology provided in Forest Protocols adopted by the California Air Resources Board. Would the project: a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use? b) Conflict with existing zoning for agricultural use or a Williamson Act contract? c) Conflict with existing zoning for, or cause rezoning of, forest land (as defined in Public Resources Code section 12220(g)), timberland (as defined by Public Resources Code section 4526), or timberland zoned Timberland Production (as defined by Government Code section 51104(g))? d) Result in the loss of forest land or conversion of forest land to non-forest use? e) Involve other changes in the existing environment, which, due to their location or nature, could result in conversion of Farmland, to non-agricultural use or conversion of forestland to non-forest use? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed apartment will not convert Prime Farmland, Unique Farmland or Farmland of Statewide Importance, nor will it conflict with existing zoning for agricultural use or a Williamson Act contract, or involve or cause changes in the environment resulting in conversion of farmland to nonagricultural use. The proposed use is consistent with the approved Specific Plan. As documented in the FEIS/EIR, the project site is part of Tustin Legacy Specific Plan that contained 702 acres of farmland. The FEIS/EIR concluded that there would be no viable long-term mitigation to offset the impact of converting farmland on MCAS Tustin to urban uses. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to agricultural resources. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of Evaluation of Environmental Impacts DDA—Jamboree Housing Page 5 new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required. Specific mitigation measures have been adopted by the Tustin City Council in certifying the FEIS/EIR. However, the FEIS/EIR also concluded that Reuse Plan related impacts to farmland were significant and impossible to fully mitigate. A Statement of Overriding Consideration for the FEIS/EIR was adopted by the Tustin City Council on January 16, 2001. Sources: Field Observations FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-83 through 3-87, 4-109 through 114), Addendum (Page 5-8 through 5-9) and Addendum 2 (Page 27 through 28) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan III. AIR QUALITY: Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions that exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of people? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. As documented in the FEIS/EIR, the project is part of a larger reuse project at Tustin Legacy that was projected to result in air quality impacts that cannot be fully mitigated. A Statement of Overriding Consideration for the FEIS/EIR was adopted by the Tustin City Council on January 16, 2001. The site is presently not in use. The project applicant proposes to construct 114 affordable apartment units on 3.55 acres and has requested a density bonus for the project site. No significant impact beyond what was analyzed in the adopted FEIS/EIR is anticipated. The City must support density bonus requests, concessions or incentives when projects provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. Evaluation of Environmental Impacts DDA— Jamboree Housing Page 6 Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to air quality. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or(3)the availability of new information of substantial importance relating to significant effect or mitigation measures or alternatives that was not known and could not have been known when the FEIS/EIR was certified as complete. Mitigation/Monitoring Required: Specific mitigation measures have been adopted by the Tustin City Council in certifying the FEIS/EIR. However, the FEIS/EIR also concluded that Reuse Plan related operational air quality impacts were significant and impossible to fully mitigate. A Statement of Overriding Consideration for the FEIS/EIR was adopted by the Tustin City Council on January 16, 2001. Sources: Field Observations Submitted Plans FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-143 through 153, 4-207 through 4-230 and 7-41 through 7-42), Addendum (Page 5-10 through 5-27)and Addendum 2 (Page 29 through 32) FSEIR for Tustin Legacy Specific Plan Amendment(Page 5.1-1 through 5.1- 34) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Table 2, 1993 South Coast Air Quality Management District, CEQA Air Quality Handbook Tustin General Plan IV. BIOLOGICAL RESOURCES—Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? Evaluation of Environmental Impacts DDA—Jamboree Housing Page 7 e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan,or other approved local, regional or state habitat conservation plan? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. The FEIS/EIR found that implementation of the Reuse Plan and Tustin Legacy Specific Plan would not result in impacts to federally listed threatened or endangered plant or animal species. The proposed project is within the scope of development considered with the analysis of the FEIS/EIR, the Supplementals and Addendums for MCAS Tustin. The FEIS/EIR determined that implementation of the Reuse Plan and Tustin Legacy Specific Plan (including the proposed project) could impact jurisdictional waters/wetlands and the southwestern pond turtle or have an impact on jurisdictional waters/wetlands. The project site has been surveyed, and turtles were captured and moved off the site to another location as directed and overseen by the California Department of Fish and Game. Since that time, all former Marine Corps base drainage channels in the area were removed and graded by the former owner of the property with the required 401, 404 and 1601 permits issued by Fish and Game, Army Corps of Engineers, and Regional Water Quality Control Board. Consequently, the proposed project would not affect the southwestern pond turtle or have an impact on jurisdictional waters or wetlands. No substantial change is expected from the analysis previously completed in the FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to biological resources. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or(3) the availability of new information of substantial importance relating to significant effect or mitigation measures or alternatives that was not known and could not have been known when the FEIS/EIR was certified as complete. Mitigation/Monitoring Required. No mitigation is required. Sources: Field Observations FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-75 through 3-82, 4-103 through 4-108, and 7-26 through 7-27),Addendum(Page 5-28 through 5-39)and Addendum 2(Page 33 through 35) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan Evaluation of Environmental Impacts DDA—Jamboree Housing Page 8 V. CULTURAL RESOURCES—Would the project: a) Cause a substantial adverse change in the significance of a historical resource as defined in §15064.5? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to§ 15064.5? c) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred outside formal cemeteries? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. It should be noted that the former MCAS Tustin contained two National Register listed blimp hangars, and several concrete or asphalt blimp landing pads that were considered historically or culturally significant, pursuant to the federal Section 106 process conducted at the site. Through the Section 106 process, these facilities were identified as part of a discontiguous Historic District. The Navy, State Office of Historic Preservation (SHPO), and Advisory Council executed a Memorandum of Agreement (attached as part of the EIS/EIR) with City of Tustin and County of Orange as invited signatories that allowed for the destruction of the blimp pads. The EIS/EIR noted that it may not be financially feasible to retain the blimp hangars and there may be irreversible significant impacts. A Statement of Overriding Consideration for the FEIS/EIR was adopted by the Tustin City Council on January 16, 2001. Consistent with the above referenced agreement, the previous owner of the property removed the blimp pad from the project site and leveled the property. However, no portion of the previously existing blimp landing pads nor the existing blimp hangars are located within the project site boundary. Numerous archaeological surveys have been conducted at the former MCAS Tustin site. In 1988, the State Office of Historic Preservation (SHPO) provided written concurrence that all open spaces on MCAS Tustin had been adequately surveyed for archaeological resources. Although one archaeological site (CA-ORA-381) has been recorded within the Reuse Plan area, it is believed to have been destroyed. It is possible that previously unidentified buried archaeological or paleontological resources within the project site could be significantly impacted by grading and construction activities. With the inclusion of mitigation, measures that require construction monitoring, potential impacts to cultural resources can be reduced to a level of insignificance. No substantial change is expected from the analysis previously completed in the FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to cultural resources. Specifically,there have not been:(1)changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or(3) the availability of new information of substantial importance relating Evaluation of Environmental Impacts DDA—Jamboree Housing Page 9 to significant effect or mitigation measures or alternatives that was not known and could not have been known when the FEIS/EIR was certified as complete. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR;these measures would be included as conditions of approval for the project. Sources: Field Observations FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-68 through 3-74, 4-93 through 4-102 and 7-24 through 7-26), Addendum (Page 5-40 through 5-45)and Addendum 2 (Page 36 through 37) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan VI. GEOLOGY AND SOILS—Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: • Rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning map, issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. • Strong seismic ground shaking? • Seismic-related ground failure, including liquefaction? • Landslides? b) Result in substantial soil erosion or the loss of topsoil? f) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, as defined in Table 18-1-B of the Uniform Building Code (1994), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of wastewater? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. The FEIS/EIR indicates that impacts to soils and geology resulting from implementation of the Reuse Plan and Tustin Legacy Specific Plan would "include non-seismic hazards (such as local settlement, regional subsidence, expansive soils, slope instability, erosion, and mudflows) and seismic hazards (such as surface fault displacement, high-intensity ground shaking,ground failure and lurching,seismically induced settlement,and flooding associated with dam failure." However, the FEIS/EIR for MCAS Tustin also concluded that compliance with state and local regulations and standards, along with established engineering procedures and techniques, would avoid unacceptable risk or the creation of significant Evaluation of Environmental Impacts DDA—Jamboree Housing Page 10 impacts related to such hazards. No substantial change is expected for development of the project from the analysis previously completed in the FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to geology and soils. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required:As identified in the FEIS/EIR, compliance with existing rules and regulations would avoid the creation of potential impacts. No mitigation is required. Sources: Field Observations FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-88 through 3-97, 4-115 through 4-123 and 7-28 through 7-29), Addendum (Page 5-46 through 5-49)and Addendum 2(Page 38 through 40) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan VII. GREENHOUSE GAS EMISSIONS —Would the project: a) Generate greenhouse gas emissions, either directly or indirectly, that may have a significant impact on the environment? b) Conflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions of greenhouse gases? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. The proposed use is consistent with the approved Specific Plan, which also allows for a variety of residential uses. The FEIS/EIR did not evaluate greenhouse gas (GHG) emissions impacts because, prior to SB 97, which went into effect January 1, 2010, it was not included in the CEQA Guidelines Appendix G checklist and the City of Tustin did not have adopted thresholds at the time of preparation. The City has prepared the Final Supplemental EIR(FSEIR), which was adopted in June 2017 in conjunction with the Tustin Legacy Specific Plan Amendment (Modified Project). The FSEIR analyzed the MCAS Tustin Specific Plan (Adopted Specific Plan) would have generated GHG emissions at levels that would exceed the thresholds established by Southern California Air Quality Management District. The FSEIR concluded that the Modified Project would contribute to global climate change through direct emission of GHG from onsite area sources and vehicle trips and indirectly through offsite energy production required for onsite activities, water use and waste disposal. However, the Modified Project would generate GHG emissions at a reduced rate than the rate GHG emissions would have been produced under the Adopted Specific Plan. Evaluation of Environmental Impacts DDA—Jamboree Housing Page 11 Mitigation/Monitoring Required. Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR;these measures would be included as conditions of approval for the project. Sources: Field Observations FEIS/EIR for Disposal and Reuse of MCAS Tustin Addendum 2 (Page 41 through 43) FSEIR for Tustin Legacy Specific Plan Amendment (Page 5.2-1 through Pages 5.2-30) Tustin Legacy Specific Plan (Page 5-34 through 5-68) Tustin General Plan VIII. HAZARDS AND HAZARDOUS MATERIALS—Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use or disposal of hazardous materials? b) Create a significant hazard to the public or the environment through reasonable foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances,or waste within one-quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles or a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. The project will not create a significant hazard to the public through the transport, use, or disposal of hazardous materials, nor are there reasonably foreseeable upset and accident conditions at the property. In addition, construction and residential uses would not emit hazardous emissions within a quarter mile of an existing or proposed school. The Navy conveyed the property in 2002 as unrestricted and suitable for residential reuse. Evaluation of Environmental Impacts DDA—Jamboree Housing Page 12 In addition, the project site is located within the boundaries of the Airport Environs Land Use Plan; however, it is at least four(4) miles from John Wayne Airport, and does not lie within a flight approach or departure corridor and thus does not pose an aircraft-related safety hazard for future residents or workers. The project site is also not located in a wildland fire danger area. Compliance with all federal, state and local regulations concerning handling and use of household hazardous substances will reduce potential impacts to below a level of significance. No substantial change is expected from the analysis previously completed in the FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to hazards and hazardous materials. Specifically, there have not been: (1)changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required:As identified in the FEIS/EIR, compliance with existing rules and regulations would avoid the creation of potential impacts. No mitigation is required. Sources: Field Observation FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-106 through 3- 117, 4-130 through 4-138 and 7-30 through 7-31), Addendum (Page 5-49 through 5-55) and Addendum 2 (Page 44 through 47) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan. IX. HYDROLOGY AND WATER QUALITY—Would the project: a) Violate any water quality standards or waste discharge requirements? b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge, such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in flooding on- or off-site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase Evaluation of Environmental Impacts DDA—Jamboree Housing Page 13 the rate or amount of surface runoff in a manner, which would result in flooding on- or off-site? e) Create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff? f) Otherwise substantially degrade water quality? g) Place housing within a 100-year flood hazard area as mapped on a federal Flood hazard Boundary of Flood Insurance Rate Map or other flood hazard delineation map? h) Place within a 100-year flood hazard area structures, which would impede or redirect flood flows? i) Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. The project design and construction of facilities to fully contain drainage of the site would be required as conditions of approval of the project and submitted/approved Water Quality Management Plan. No long-term impacts to hydrology and water quality are anticipated for the proposed project. The proposed housing project will also not affect groundwater in the deep regional aquifer or shallow aquifer. The proposed project would not include groundwater removal or alteration of historic drainage patterns at the site.-The project is not located within a 100-year flood area and will not expose people or structures to a significant risk of loss, injury and death involving flooding as a result of the failure of a levee or dam, nor is the proposed project susceptible to inundation by seiche, tsunami, or mudflow. Construction operations would be required to comply with the Total Maximum Daily Load (TMDL) for the Newport Bay watershed that requires compliance with the Drainage Area Master Plan (DAMP)and National Pollution Discharge Elimination System (NPDES)and the implementation of specific best management practices (BMP). Compliance with state and local regulations and standards, along with established engineering procedures and techniques, would avoid unacceptable risk or the creation of significant impacts related to such hazards. Consequently, no substantial change is expected from the analysis previously completed in the FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to hydrology and water quality. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new Evaluation of Environmental Impacts DDA—Jamboree Housing Page 14 information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: As identified in the FEIS/EIR, compliance with existing rules and regulations would avoid the creation of potential impacts. No mitigation is required. Sources: Field Observation FEIS/EIR for Disposal and Reuse of MCAS Tustin(Page 3-98 through 3-105, 4-124 through 4-129 and 7-29 through 7-30), Addendum (Page 5-56 through 5-91)and Addendum 2(Page 48 through 51) Tustin Legacy Specific Plan (Page 3-36 through 3-39) FEMA Flood Map: FIRM Panel 06059CO279J (Dec. 2, 2009) Tustin General Plan Fire Hazard Severity Zone Map(2011) X. LAND USE AND PLANNING —Would the project: a) Physically divide an established community? b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited, to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat conservation plan or natural community conservation plan? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan and the number of dwelling units proposed by the Project is under the maximum development threshold for Planning Area 15, which contemplates the development of 2,814 dwelling units in total. The City of Tustin is the controlling authority over implementation of the Reuse Plan for the former base, such as land use designations, zoning categories, recreation and open space areas, major arterial roadways, urban design, public facilities, and infrastructure systems. On July 18, 2017, the Tustin City Council approved the Tustin Legacy Specific Plan for Tustin Legacy project area that established land use and development standards for development of the site. The proposed project complies with Planning Area 15's development standards for residential units as noted in Section 3.13.2 of the Tustin Legacy Specific Plan. The City must support density bonus requests, concessions or incentives when projects provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. Compliance with state and local regulations and standards would avoid the creation of significant land use and planning impacts. Approval of a Development Agreement and Design Review would be required at a later date. In addition, the proposed Project will not conflict with any habitat conservation plan or natural community conservation plan. Consequently, no change is expected from the analysis previously completed in the FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with Evaluation of Environmental Impacts DDA—Jamboree Housing Page 15 regard to land use and planning. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: The proposed project is consistent with the development standards of the MCAS Tustin Specific Plan as identified by the adopted FEIS/EIR. No mitigation is required. Sources: Field Observation FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-3 to 3-17, 4-3 to 4-13 and 7-16 to 7-18), Addendum (Page 5-92 through 5-94)and Addendum 2 (Page 52 through 54) FSEIR for Tustin Legacy Specific Plan Amendment (Page 5.2-1 through Page 5.2-16) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan XI. MINERAL RESOURCES—Would the project: a) Result in the loss of availability of a known mineral resource that would be a value to the region and the residents of the state? b) Result in the loss of availability of a locally important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. Chapter 3.9 of the FEIS/EIR indicates that no mineral resources are known to occur anywhere within the Reuse Plan area. The proposed project will not result in the loss of mineral resources known to be on the site or identified as being present on the site by any mineral resource plans. Consequently, no substantial change is expected from the analysis previously completed in the FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to mineral resources. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives Evaluation of Environmental Impacts DDA—Jamboree Housing Page 16 that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: No mitigation is required. Sources: Field Observation FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-91), Addendum (Page 5-95 through 5-96) and Addendum 2 (Page 55 through 56) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan XII. NOISE —Would the project: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive ground borne vibration or ground borne noise levels? c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. The FEIS/EIR indicates that full build-out of the base will create noise impacts that would be considered significant if noise levels experienced by sensitive receptors would exceed those considered "normally acceptable" for the applicable land use categories in the Noise Elements of the Tustin General Plan. For interior noise, N-3 identified in the FEIS/EIR requires plans demonstrating noise regulation conformity be submitted for review and approval prior to building permits being issued. Compliance with adopted mitigation measures and state and local regulations and standards, along with established engineering procedures and techniques,will avoid unacceptable risk or the creation of significant impacts related to such hazards. At Design Review, a noise study will be required to ensure the project complies with City noise standards. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to noise. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant Evaluation of Environmental Impacts DDA—Jamboree Housing Page 17 environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR;these measures would be included as conditions of approval for the project. Sources: Field Observation Submitted Plans FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-154 to 3-162, 4- 231 to 4-243 and 7-42 to 7-43), Addendum (Page 5-96 through 5-101) and Addendum 2 (Page 57 through 60) FSEIR for Tustin Legacy Specific Plan Amendment(Page 5.4-1 through 5.4- 30) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan XIII. POPULATION AND HOUSING —Would the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan and the number of dwelling units proposed is under the maximum development threshold for Planning Area 15, which contemplates the development of 2,814 dwelling units in total. Additionally, the proposed project site is vacant and will not displace people or necessitate construction of replacement housing elsewhere. No substantial change is expected from the analysis previously completed in the FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to population and housing. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the Evaluation of Environmental Impacts DDA— Jamboree Housing Page 18 involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplementals or Addendums were certified as completed. Mitigation/Monitoring Required: No mitigation is required. Sources: Field Observations FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-18 to 3-34, 4-14 to 4-29 and 7-18 to 7-19), Addendum (Page 5-101 through 5-111) and Addendum 2 (Page 61 through 62) FSEIR for Tustin Legacy Specific Plan Amendment(Page 5.5-1 through 5.5- 16) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan XIV. PUBLIC SERVICES: a)Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times, or other performance objectives for any of the public services: The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. The site is currently vacant. Development of the site would require public services such as fire and police protection services, schools, libraries, recreation facilities, and biking/hiking trails. Fire Protection. The proposed project will be required to meet existing Orange County Fire Authority (OCFA) regulations regarding construction materials and methods, emergency access, water mains, fire flow, fire hydrants, sprinkler systems, building setbacks, and other relevant regulations. Adherence to these regulations would reduce the risk of uncontrollable fire and increase the ability to efficiently provide fire protection services to the site. The number of fire stations existing and planned in the area surrounding the site will meet the demands created by the proposed project. Police Protection. The need for police protection services is assessed based on resident population estimates, square footage of non-residential uses, etc. Development of the site would increase the need for police protection services. The developer as a condition of approval for the project would be required to work with the Tustin Police Department to ensure that adequate security precautions such as visibility, lighting, emergency access, address signage are implemented in the project at plan check. Schools. The proposed project is located within Tustin Unified School District (TUSD). The implementation of the Reuse Plan would provide two 10-acre sites for elementary schools and a 40-acre high school site to serve the growing student population within its district. The 2001 FEIS/EIR determined that the project would generate 1,473 students Evaluation of Environmental Impacts DDA—Jamboree Housing Page 19 within the TUSD. The 2006 Addendum determined that the modified project would result in a reduction of 497 students within the TUSD and analyzed the impact of expanding the Heritage school by 5 acres to accommodate a combination elementary/middle school instead of the two elementary schools and one high school contemplated in the 2001 FEIS/EIR. Utilizing the 2006 Addendum student generation factors of 0.465 for K-8 in single-family detached residences and 0.219 for K-8 in attached single-family homes and 0.135 for grades 9-12 in single-family homes and 0.077 for grades 9-12 in single-family detached homes, the project would result in 84 students within the TUSD. The FSEIR for Tustin Legacy Specific Plan Amendment (Modified Project) determined that the Modified Project would in the construction of 6,813 total residential units in the Specific Plan area, resulting in the potential addition of 1,250 students to the TUSD. The TUSD will receive its statutory school impact fees per Senate Bill 50 from the proposed residential development of the site. As a condition of approval for the project, the developer will be required to pay applicable school fees prior to issuance of the building permit. In summary, no new additional students are anticipated beyond what was considered in the FEIR/EIS for the Disposal and Reuse of MCAS, Tustin, and in any event, City required mitigation is limited by State law to requiring payment of the SB 50 school impact fees. Other Public Facilities (Libraries). Implementation of the entire Reuse Plan would only result in a library demand of up to approximately 2,500 square feet of library space. This relatively small amount of space is well below the library system's general minimum size of 10,000 square feet for a branch library and would not trigger the need for a new facility. General Implementation Requirements: To support development in the reuse plan area, the Reuse Plan/Specific Plan requires public services and facilities to be provided concurrent with demand. The proposed project will be required to comply with FEIS/EIR implementation measures adopted by the Tustin City Council. No substantial change is expected from the analysis previously completed in the approved FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to public services. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR;these measures would be included as conditions of approval for the project. Sources: Field Observation FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-47 to 3-57, 4-56 to 4-80 and 7-21 to 7-22), Addendum (Page 5-112 through 5-122) and Addendum 2 (Page 63 through 65) FSEIR for Tustin Legacy Specific Plan Amendment(Page 5.6-1 through 5.6-12) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Evaluation of Environmental Impacts DDA—Jamboree Housing Page 20 Tustin General Plan XV. RECREATION: a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities, such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities,which might have an adverse physical effect on the environment? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed project includes common areas such as paseos, swimming pool area and outdoor barbeque as well as a pedestrian plaza which would be accessible to the residents of the project and the public as a whole. The proposed project not only provides recreational to its future community residents. Additionally, the Reuse Plan process included public conveyance of city parks and an Urban Regional Park; as such individual developers were relieved of the requirement to dedicate land for park purposes. The project is not anticipated to increase the use of other existing neighborhood or regional parks such that substantial physical deterioration of the facilities would occur or be accelerated. No substantial change is expected from the analysis previously completed in the approved FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to recreation. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3)the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR; these measures would be included as conditions of approval for the project. Sources: Field Observation FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-47 to 3-57, 4-56 to 4-80 and 7-21 to 7-22, Addendum (Page 5-122 through 5-127) and Addendum 2 (Page 66 through 67) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin Parks and Recreation Services Department Tustin General Plan Evaluation of Environmental Impacts DDA—Jamboree Housing Page 21 XVI. TRANSPORTATIONITRAFFIC —Would the project: a) Conflict with an applicable plan, ordinance or policy establishing measures of effectiveness for the performance of the circulation system, taking into account all modes of transportation including mass transit and non-motorized travel and relevant components of the circulation system, including but not limited to intersections, streets, highways and freeways, pedestrian and bicycle paths, and mass transit? b) Conflict with an applicable congestion management program, including, but not limited to level of service standards and travel demand measures, or other standards established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? f) Conflict with adopted policies, plans, or programs regarding public transit, bicycle, or pedestrian facilities, or otherwise decrease the performance or safety of such facilities? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan and the number of dwelling units proposed is under the maximum development threshold for Planning Area 15, which contemplates the development of 2,814 dwelling units in total. The FEIS/EIR indicates that transportation and circulation impacts would be created through the phased development of the approved Reuse Plan and MCAS Tustin Specific Plan. The FEIS/EIR and Supplements identified the trip generation resulting from implementation of the original Specific Plan and Addendum to create an overall Average Daily Trip(ADT)of 216,440 trips. The Specific Plan also established a trip budget tracking system for each neighborhood to analyze and control the amount and intensity of non-residential development by neighborhood. The tracking system ensures that sufficient ADT capacity exists to serve the development and remainder of the neighborhood. The proposed project would not exceed the trip budget analyzed in the FEIS/EIR and its Supplemental and Addendums. According to the Tustin Legacy Specific Plan, a maximum of 2,814 residential dwelling units are permitted within Planning Area 15 (Neighborhood G) with an established trip budget of 38,936 ADTs. The proposed project has a total of 114 units with projected 758 ADTs. Given this comparison, the proposed project is well within the trip budget established for the project site. The analysis has shown that the proposed project has not resulted in new significant impacts that would require mitigation. Moreover, the proposed on-site circulation system is found to provide adequate capacity in accordance with the performance criteria applied to the project. Evaluation of Environmental Impacts DDA—Jamboree Housing Page 22 The City's Traffic Engineer has analyzed the proposed project and the associated trip generation and determined that it is within the traffic budget for the project site. No substantial change is expected from the analysis previously completed in the approved FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to traffic. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project.is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or(3)the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR; these measures would be included as conditions of approval for the project. Sources: Field Observation Submitted Plans FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-118 to 3-142, 4- 139 to 4-206 and 7-32 to 7-41, Addendum (Page 5-127 through 5-146) and Addendum 2 (Page 68 through 73) FSEIR for Tustin Legacy Specific Plan Amendment(Page 5.7-1 through 5.7- 34) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan XVII. TRIBAL CULTURAL RESOURCES: Would the project cause a substantial adverse change in the significance of a tribal cultural resource, defined in Public Resources Code section 21074 as either a site, feature, place, cultural landscape that is geographically defined in terms of the size and scope of the landscape, sacred place, or object with cultural value to a California Native American tribe, and that is: a) Listed or is eligible for listing in the California Register of Historical Resources, or in a local register of historical resources as defined in Public Resources Code section 5020.1(k). b) A resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant pursuant to criteria set forth in subdivision (c) of Public Resources Code section 5024.1. In applying the criteria set forth in subdivision (c) of Public Resources Code section 5024.1, the lead agency shall consider the significance of the resource to a California Native American tribe. The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment Evaluation of Environmental Impacts DDA—Jamboree Housing Page 23 community. The project would not cause substantial adverse change in a tribal cultural resource in that the property does not contain historical cultural resources and the proposed use and modifications would not result impacts to historical or cultural resources. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR;these measures would be included as conditions of approval for the project. Sources: Field Observations Submitted Plans FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-68 through 3-74, 4-93 through 4-102 and 7-24 through 7-26), Addendum (Page 5-40 through 5-45)and Addendum 2 (Page 36 through 37) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan XVIII. UTILITIES AND SERVICE SYSTEMS—Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? g) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider,which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? The proposed development of Disposition Package 1A-South would include the construction of 114 residential units and approximately 6,378 square feet of resident services, recreational spaces, meeting rooms and staff offices. This project would provide permanent supportive and family housing within a new four-story affordable apartment community. The proposed use is consistent with the approved Specific Plan. The FEIR/EIR analyzed residential development on the proposed site, which is consistent with the proposed project. Development of the site would require on-site improvements and off-site infrastructure improvements to utilities and roadway systems, including payment of fair share contribution related to the Tustin Legacy Backbone Infrastructure Program and construction of landscape and irrigation on the public right-of-way Also, development of the site is required to meet federal, state, and local standards for design of wastewater treatment. The number of proposed units can be supported by the Irvine Ranch Water District for domestic water and sewer services. Evaluation of Environmental Impacts DDA—Jamboree Housing Page 24 No substantial change is expected from the analysis previously completed in the approved FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental EIR or other environmental document to evaluate Project impacts or mitigation measures exist with regard to utilities and service systems. Specifically, there have not been: (1) changes to the Project that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; (2) substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the previous FEIS/EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified effects; or (3) the availability of new information of substantial importance relating to significant effects or mitigation measures or alternatives that were not known and could not have been known when the FEIS/EIR, the Supplemental or Addendums were certified as completed. Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR;these measures would be included as conditions of approval for the project. Sources: Field Observations Submitted Plans FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-35 through 3-46, 4-32 through 4-55 and 7-20 through 7-21), Addendum (Page 5-147 through 5-164)and Addendum 2 (Page 74 through 76) FSEIR for Tustin Legacy Specific Plan Amendment(Page 5.8-1 through 5.8- 28) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan XIX. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.) c) Does the project have environmental effects, which will cause substantial adverse effects on human beings, either directly or indirectly? Based upon the foregoing, the proposed project does not have the potential to degrade the quality of the environment, substantially reduce the habitats or wildlife populations to decrease or threaten, eliminate, or reduce animal ranges, etc. With the enforcement of FEIS/EIR mitigation and implementation measures approved by the Tustin City Council, the proposed project does not cause unmitigated environmental effects that will cause substantial effects on human beings, either directly or indirectly. In addition, the proposed Evaluation of Environmental Impacts DDA—Jamboree Housing Page 25 project does have air quality impacts that are individually limited, but cumulatively considerable when viewed in connection with the effects of the reuse and redevelopment of the former MCAS Tustin. The FEIS/EIR, the Supplemental and Addendums previously considered all environmental impacts associated with the implementation of the Reuse Plan and Tustin Legacy Specific Plan. The project proposes no substantial changes to environmental issues previously considered with adoption of the FEIS/EIR. Mitigation measures were identified in the FEIS/EIR to reduce impact but not to a level of insignificance. A Statement of Overriding Consideration for the FEIS/EIR was adopted by the Tustin City Council on January 16, 2001. Mitigation/Monitoring Required: The FEIS/EIR previously considered all environmental impacts associated with the implementation of the Reuse Plan and MCAS Tustin Specific Plan. Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR and would be included in the project as applicable. Sources: Field Observations FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 5-4 through 5-11) and Addendum 2 (Page 77 through 78) Tustin Legacy Specific Plan (Page 3-36 through 3-39) Tustin General Plan CONCLUSION The summary concludes that all of the proposed project's effects were previously examined in the FEIS/EIR for MCAS Tustin, that no new effects would occur, that no substantial increase in the severity of previously identified significant effects would occur, that no new mitigation measures would be required, that no applicable mitigation measures previously not found to be feasible would in fact be feasible, and that there are no new mitigation measures or alternatives applicable to the project that would substantially reduce effects of the project that have not been considered and adopted. A Mitigation and Monitoring and Reporting Program and Findings of Overriding Considerations were adopted for the FEIS/EIR on January 16, 2001 and July 5, 2017 and shall apply to the proposed project, as applicable.