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AGENDA REPORT
Awenda Item ___L
Reviewed ~
City Manager
Finance Director --1>IIA-
MEETING DATE
OCTOBER 17, 2005
TO:
WILLIAM HUSTON, CITY MANAGER
FROM:
COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT
COLUMBUS GROVE AFFORDABLE HOUSING INDEMNIFICATION
AGREEMENT (TENTATIVE TRACT MAP 16582)
SUMMARY
On February 22, 2005, the City Council approved Tentative Tract Map 16582 for the
subdivision of 86.26 acres and the development of 386 numbered lots and 68 lettered
lots for the purpose of developing 465 residential units including 211 single family
detached units, 68 carriage way units, and 184 condominium units. As a condition of the
Tentative Tract Map, the application is required to execute an agreement with the City
to ensure that the affordable units that were required on Parcel 36 and are being
transferred by the City of Irvine to Parcel 37 will be provided in Irvine.
The Agreement to Satisfy Condition 2.5 of City Council Resolution No. 05-37 prepared
by the City Attorney and executed by Moffett Meadows Partners, LLC (Developer), Ora
Ciara, LLC (Builder), William Lyon Homes, Inc. (Builder), and MW Housing Partners III,
loP. (Builder) fulfills this condition of approval.
Applicant!
Owner:
Moffett Meadows Partners, LLC (Developer)
Ora Ciara, LLC (Builder)
William Lyon Homes, Inc. (Builder)
MW Housing Partners III, loP. (Builder).
RECOMMENDATION:
That the City Council authorize the Mayor to execute the Indemnification Agreement
(Columbus Grove) on behalf of the City of Tustin.
FISCAL IMPACT:
There are no associated fiscal impacts associated with the execution of this agreement.
City Council Report
Agreement for Condition 25
Page 2 of 2
BACKGROUND/DISCUSSION:
On February 22. 2005. the City Council approved Tentative Tract Map 16582 for the
subdivision of 86.26 acres and the development of 386 numbered lots and 68 lettered
lots for the purpose of developing 465 residential units including 211 single family
detached units, 68 carriage way units, and 184 condominium units. As a condition of the
Tentative Tract Map, the applicant is required to execute an agreement with the City to
ensure that the affordable units that were required on Parcel 36 and are being
transferred by the City of Irvine to Parcel 37 will be provided in Irvine Specifically,
Condition 2.5 of Resolution No. 05-37 requires:
Prior to the issuance of any building permits, the applicant shall execute
an agreement with the City of Tustin to ensure that the affordable housing
units that were required on Parcel 36 and are being transferred by the City
of Irvine to Parcel 37 will be provided in Irvine. The agreement shall
include an indemnification of the City of Tustin for not imposing any
affordability requirements on Parcel 36. In the event that this agreement is
not executed, the applicant shall amend the Affordable Housing Plan to
provide twenty-one (21) affordable units on Parcel 36, which include eight
(8) very low income units, five (5) low income units, and eight (8)
moderate Income units.
The Agreement to Satisfy Condition 2.5 of City Council Resolution No. 05-37 prepared
by the City Attorney and executed by Moffett Meadows Partners, LLC, Ora Ciara, LLC,
William Lyon Homes, Inc., and MW Housing Partners III, L.P. (Builder) fulfills this
condition of approval. It is recommended that the City Council authorize the mayor to
execute the Indemnification Agreement (Columbus Grove) on behalf of the City of
Tustin.
&;i~ Æ~
Elizabeth A. Binsac1<
Community Development Director
Attachment: Agreement to Satisfy Condition 2.5 of City Council Resolution No. 05-37
S:\Cdd\CCREPOR1\Columbus Grove -Condition 2.5 agreement.doc
AGREEMENT TO SATISFY CONDITION 2.5
OF CITY COUNCIL RESOLUTION 05-37
This Agreement to Satisfy Condition 2.5 of City Council Resolution 05-37 (the
"Agreement") is entered into this day of October, 2005, by and between the City of
Tustin, a municipal corporation (the "City"), Moffett Meadows Partners, LLC, a California
Limited Liability Company (the "Developer"), and Ora Ciara, LLC, a California limited liability
company, William Lyon Homes, Inc., a California corporation, and MW Housing Partners III,
LP., a California limited partnership (collectively, "Builders"). City, Developer and Builders
are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred
to as the "Parties".
RECIT ALS
A. As a condition of approval of Tentative Tract No. 16582 ("TTM 16582") for
Developer's Columbus Grove Project, Condition No. 2.5 of City Council Resolution No. 05-37
requires as follows:
"Prior to the issuance of any building permits, the applicant shall execute an agreement
with the City of Tustin to ensure that the affordable housing units that were required on Parcel 36
and are being transferred by the City of Irvine to Parcel 37 will be provided in Irvine. The
agreement shall include an indemnification of the City of Tustin for not imposing any
affordability requirements on Parcel 36. In the event this agreement is not executed, the
applicant shall amend the Affordable Housing Plan to provide twenty-one (21) affordable units
on Parcel 36, which include eight (8) very low income units, five (5) low income units, and eight
(8) moderate income units."
B. Parcels 36 and 37 are Reuse Plan Disposal parcels. In the MCAS, Tustin Reuse
Plan, Parcel 37 is located within the City of Irvine. Parcel 36 was originally located within the
City ofIrvine, but was annexed to the City of Tustin on April 13, 2005.
C. Developer is the owner of property at Tustin Legacy, which, at the time of the
approval ofTTM 16582, included all of Reuse Plan Disposal Parcel No. 36.
D. Subsequent to approval of TTM 16582 portions of Reuse Plan Disposal Parcel
No. 36 were transferred from Developer to Builders. Developer and Builders are collectively
referred to as the "Owners".
E. City and Owners desire to enter into an agreement that will satisfy Condition 2.5
of City Council Resolution No. 05-37.
NOW, THEREFORE, based on the Recitals and in consideration of the mutual promises
and covenants herein, the Parties agree as follows:
1.
Affordable Units.
Owners shall ensure that the affordable housing units that were required in the MCAS,
Tustin Specific Plan for Parcel 36 will be provided in the City of Irvine on Parcel 37. Owners
shall construct twenty-one (21) affordable units on Parcel 37. The affordable units shall include
eight (8) very low-income units, five (5) low-income units, and eight (8) moderate-income units.
2.
Indemnity and Hold Harmless.
Developer agrees to defend, indemnify and hold harmless the City, its officers, City
officials, employees or agents against any and all claims, loss, liability, penalties, or damages
that may be asserted or claimed by any person, firm or entity arising out of or in connection with
the City's decision, at Developer's request, not to impose any housing affordability requirements
on Parcel 36 because of Developer's commitment to building affordable housing on Parcel 37 in
the City ofIrvine.
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of Developer.
Such defense obligation shall arise immediately upon presentation of a Claim by any person if,
without regard to the merit of the Claim, such Claim could potentially result in an obligation to
Developer's indemnification obligation hereunder shall survive the expiration or earlier
termination of this Agreement until action against City for such matter indemnified hereunder is
fully and finally barred by the applicable statute oflimitations.
3.
Specific Performance.
In the event Owners fail to construct the twenty-one (21) affordable housing units on
Parcel 37, or Developer fails to defend and indemnify the City as required in Section 2 herein, in
addition to whatever other rights the City may have in law or at equity, or as otherwise provided
in this Agreement, the City may seek to specifically enforce the obligation of the Owners in
Section I of this Agreement.
4.
Governinl!: Law / Consent to Jurisdiction.
All questions with respect to the interpretation of this Agreement and the rights and
liabilities of the Parties to this Agreement shall be governed by the laws of the State of
California.
The Parties hereto agree that all actions or proceedings arising in connection with this
Agreement 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 the venue is intended by the Parties to
by mandatory and not permissive in nature, thereby precluding the possibility of litigation
between or among the Parties with respect to or arising out of this Agreement in any jurisdiction
other than that specified in this section. Each Party hereby waives any right that it may have to
assert the doctrine forum non conveniens or similar doctrine or to object to venue with respect to
any proceeding brought in accordance with this section, 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
2
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 by
means of registered or certified mail, return receipt requested, postage prepaid, to is address for
the giving of notices as set forth in this Agreement, or in the manner set forth in Section II of
this Agreement pertaining to notice. Any final judgment rendered against 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.
5.
Entire A!!reement.
This Agreement constitutes the entire agreement and understanding between the Parties
with respect of the subject matter of this Agreement and supersedes all prior or contemporaneous
agreements and understandings with respect to the subject matter hereof, whether oral or written.
6.
Severability.
If any part of this Agreement is declared by a final decision of a court of competent
jurisdiction to be invalid for any reason, such shall not affect the validity of the rest of the
Agreement. The other parts of this Agreement shall remain in effect as if this Agreement
continue to be effective without any part or parts that have been declared invalid.
7.
Counterparts.
This Agreement may be executed in counterparts, each of which so executed shall,
irrespective of the date of its execution and delivery, be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
8.
Time is of the Essence.
Time is of the essence in this Agreement, and failure to timely comply with provisions of
this Agreement shall be grounds for a Potential Default under this Agreement.
9.
Attornevs' Fees.
If any Party files an action or brings any proceeding against the other arising from this
Agreement, the prevailing party shall be entitled to recover, as an element of its costs of suit, and
not as damages, reasonable attorneys' and costs to be fixed by the court. A party not entitled to
recover its costs shall not recover attorneys' fees. No sum for attorneys' fees shall be included in
calculating the amount of a judgment for purposes of deciding whether a party is entitled to its
costs or attorneys' fees.
10. Amendment.
No modification, amendment, addition to, or alteration ofthe terms of this Agreement, or
the Attachments, whether written or verbal, shall be valid unless made in writing and formally
approved and executed by all Parties.
11.
Authoritv of Si!!natories to A!!reement.
Each person executing this Agreement represents and warrants that he or she is duly
authorized and has legal capacity to execute and deliver this Agreement on behalf of the Parties
for which execution is made. Each Party represents and warrants to the other that the execution
of this Agreement and the performance of such Party's obligations have been duly authorized
and that the Agreement is a valid and legal agreement binding on such party and enforceable in
accordance with its terms.
12.
Notices, Demands and Communications between 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; (h) three (3) Business Days after
such notice has been sent by United States mail via certified mail, return receipt requested,
postage prepaid, and addressed to the other party as set forth below; (c) the next Business Day
after such notice has been deposited with a national overnight delivery service reasonably
approved by the partied (Federal Express, United Parcel Service and u.S. Postal Service are
deemed approved by the parties), postage prepaid, addressed to the party to whom notice is being
sent as set forth below with next business day delivery guaranteed, provided that the sending
party receives a confirmation of delivery from the delivery service provider. Unless otherwise
provided in writing, all notices hereunder shall be addressed as follows:
If to the City:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: Director of Community Development
With a copy to:
City Attorney
City of Tustin
Woodruff, Spradlin & Smart
701 S. Parker Street, Suite 8000
Orange, CA 92868-4760
Attn: Lois E. Jeffrey
If to the Developer:
Moffett Meadows Partners, LLC
25 Enterprise, Suite 300
Aliso Viejo, CA 92656
Attn: Richard Knowland
If to Ora Ciara:
Resmark Equity Partners, LLC
10880 Wilshire Blvd. #1420
Los Angeles, CA 90024
Attn: Robert Goodman
If to William Lyon Homes:
William Lyon Homes
4490 Von Karman Ave.
Newport Beach, CA 92660
Attn: Carl Morabito
4
If to MW Housing Partners: Weyerhauser Realty Investors
1301 Fifth Ave Suite 300
Seattle, W A 98101-2647
Attn: David Brentlinger
If to Lennar Homes ofCA:
Lennar Homes
25 Enterprise
Aliso Viejo, CA 92656
Attn: Bob Tummolo
Any party may be written notice to the other party in the manner specified herein change
the address to which notices to such party shall be delivered of the party to whose attention such
notices shall be directed.
13.
Effective Date.
The Effective Date of this Agreement shall be the date when this Agreement has been
executed by the Developer and City, which shall be the date first set forth above.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first written above.
CITY OF TUSTIN
By:
LOU BONE, MAYOR
ATTEST:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
Lois E. Jeffrey
City Attorney
MOFFETT MEADOWS PARTNERS, LLC, a
Delaware limited liability company
By: Marble Mountain Partners, LLC,
its sole member
By: Tustin Villas Partners, LLC, a Delaware
limited liability company, its administrative
member
By:
Lennar Homes of California, Inc., a
California corporation, its managing
member '
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ORA ClARA, LLC, a California limited liability
company
By: ORA Residential Investments I, LP., a California
limited partnership, its sole member
By: ORA California II, LLC, a Delaware limited
liability company, its general partner
By: Resmark Equity Partners, LLC, a
D'I~d ."ility omnpmy. i"
:;ag ~
Robert N. Goodman
President
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Its:
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MW HOUSING PARTNERS III, L.P., a California
limited partnership
By: MW Housing Management III, LLC, a California
limited liability company, its general partner
By: WRI CP Investments III, LLC, a Washington
limited liability company, its co-manager
By: Weyerheuser Realty Investors, Inc., a
Washington corporatio , its manager
By 'I
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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OPTIONAL
Though the ;nfOlma';on below ;s not requked by law. " may prove valuable to persons rely;ng on the document and could prevent
fraudulent removal and rea"aehment of th;s form to another document.
Description of Attached Document
Title or Type of Document:
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Description of Attached Document
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reaffachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Documenl Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
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OPTIONAL
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Description of Attached Document
Title or Type of Document:
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Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
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OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reaffachment of this form to another document.
Description of Attached Document
Trtle or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
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