HomeMy WebLinkAbout06 FIRST AMENDMENT TO DDA W/BROOKFIELD FOR 2C & 8 AT TUSTIN LEGACY DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Agenda Item 6
Reviewed:
1W AGENDA REPORT City Manager 5W
Finance Director N/A
MEETING DATE: JUNE 2, 2020
TO: MATTHEW S. WEST, CITY MANAGER
FROM: ECONOMIC DEVELOPMENT DEPARTMENT
SUBJECT: FIRST AMENDMENT TO THE DISPOSITION AND DEVELOPMENT
AGREEMENT (DDA) WITH BROOKFIELD HOMES SOUTHERN
CALIFORNIA LLC, FOR DISPOSITION PACKAGE 2C AND 8 AT TUSTIN
LEGACY
SUMMARY:
Request for authorization to approve the First Amendment to the Disposition and
Development Agreement (DDA) with Brookfield Homes Southern California LLC
(Brookfield) for portions of disposition parcels 2c and 8 for the development of a for-sale
residential community consisting of 400 homes on approximately 25.4 net acres at Tustin
Legacy.
As a result of the ongoing COVID-19 pandemic, Brookfield has requested an extension
of various milestones and performance dates under the original DDA as proposed in this
First Amendment to further assess the impacts of COVID-19 on the homebuilding
industry. This amendment would suspend the date upon which the Purchase Price
Deposit becomes non-refundable to September 1, 2020, extend performance dates of
certain obligations of both parties, and, thereby extend the outside date for close of
escrow by approximately nine (9) months.
RECOMMENDATION:
Authorize the City Manager to execute the First Amendment to the DDA between
Brookfield and the City, and any related implementing documents, subject to non-
substantive modifications as may be deemed necessary and/or recommended by the
City's special real estate counsel or the City Attorney.
FISCAL IMPACT:
The recommended First Amendment to the DDA would not change the negotiated
purchase price or project fair share contribution for the project from the original DDA;
however, the outside date for the close of escrow would be extended by approximately
nine (9) months.
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Agenda Report—DDA 1St Amendment, Brookfield Southern California Homes LLC
June 2, 2020
Page 2
Negotiation costs, such as legal, third party consultants and staff costs incurred by the
City associated with this First Amendment are reimbursed by Brookfield under the terms
of the existing DDA.
CORRELATION TO THE STRATEGIC PLAN:
This action correlates to the City's Strategic Plan for Economic and Neighborhood
Development (Goal A).
BACKGROUND:
On December 3, 2019, the City Council reviewed the entitlement application for the
Brookfield project, considering the Planning Commission's recommendation of approval,
and approved the project.
On December 17, 2019, the City Council reviewed the DDA and authorized the City
Manager to execute the DDA with Brookfield Homes Southern California LLC.
Brookfield has continued to make progress on the project by advancing civil engineering,
utility, and architectural plans. Many of which have been submitted to plan check and
received approval for permit issuance. As a partner in the project, the City has met all of
its obligations to date under the DDA by developing infrastructure plans and advertising
a public bid for the City improvements associated with the project. Award and execution
of a construction contract for the City improvements is pending and dependent on the
delivery of grading improvements of City streets by Brookfield.
The DDA provides for a Due Diligence Period of sixty (60)calendar days from the effective
date of the DDA for purposes of Brookfield performing environmental and physical site
investigations. On February 7, 2020, Brookfield requested an extension to the Due
Diligence Period for an additional period of ninety (90) calendar days, until May 15, 2020,
and this extension was granted through City Manager administrative authority. On May
11, 2020, Brookfield requested an additional three-week extension of the Due Diligence
Period until June 5, 2020, which was also granted by the City Manager.
Given the current uncertainty surrounding the economic and public health impacts as a
result of the COVID-19 pandemic, Brookfield has requested this First Amendment to
extend the periods of performance for each of the parties set forth in the original DDA.
The terms of the amendment would allow for both parties to essentially suspend the
original DDA until September 1, 2020, without incurring performance defaults. Details of
the proposed First Amendment are summarized below.
FIRST AMENDMENT TO THE DDA:
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Agenda Report—DDA 1St Amendment, Brookfield Southern California Homes LLC
June 2, 2020
Page 3
Waiver of Due Diligence
Brookfield has completed site investigation activities of the property and will waive
its due diligence contingency. The license granted to Brookfield under the DDA to
access the project site and perform investigations will automatically terminate with
the waiver of due diligence. Upon execution of the First Amendment, Brookfield will
have been deemed to have delivered its Due Diligence Termination Notice accepting
the physical and environmental conditions of the property.
Purchase Price Deposit Applicability
Following execution of the DDA, Brookfield submitted the required Purchase Price
Deposit (earnest money) of three million dollars ($3M) which is currently in escrow
and which will be applied to the Base Purchase Price of $61.5M. Pursuant to the
original DDA, the Purchase Price Deposit would be nonrefundable after expiration
of the Due Diligence Period. Brookfield has requested the Purchase Price Deposit
be refundable until September 1, 2020, in accordance with the extension. Brookfield
would retain an option to terminate the DDA in writing due to economic impacts
occurring as a result of the COVID-19 pandemic on or prior to September 1, 2020.
Schedule of Performance
The Schedule of Performance establishes outside dates by which all steps required
including design, construction and development of the project must commence or
have been completed during the term of the DDA. A number of milestones will be
adjusted as part of this First Amendment as a result of the proposed extension of
the performance obligations under the DDA to September 1, 2020. Brookfield has
proposed to commence grading activities within ninety (90) calendar days following
the September 1, 2020, date or by November 30, 2020. Accordingly, this has a
ripple effect on the Schedule of Performance by pushing out additional outside
performance dates for Brookfield as well as the City's obligation to construct
supporting infrastructure. The extension may require the City to re-bid a contract for
the public improvements depending on the extent of the construction delay that
occurs. The First Amendment to the DDA reflects these schedule changes and
provides an updated timeline with adjusted outside dates of performance
approximately nine (9) months later than originally contemplated:
Brookfield Grading Work Commences November 2020
City Improvements Work Commences February 2021
Close of Escrow November 2021
Model Home Construction Commences May 2022
Model Home Completion May 2023
City Improvements Complete October 2022
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Agenda Report—DDA 1St Amendment, Brookfield Southern California Homes LLC
June 2, 2020
Page 4
Project Completion May 2027
Close of Escrow
As a result of the extension and revised schedule, the outside date for the close of
escrow would be extended approximately nine (9) months from February 16, 2021
(the date currently identified in the DDA), to November 1, 2021.
DISCUSSION:
The suspension and extension of performance obligations in the DDA provided for in this
First Amendment will provide both parties with the opportunity to assess the on-going
impacts of COVID-19 and obtain a better understanding of what recovery and public
health mandates will look like in the coming months. The First Amendment preserves the
rights of both parties while removing the imposition of potential performance defaults
under the DDA through September 1, 2020.
This would not prohibit Brookfield from continuing to process plans or further design
aspects of the project should it choose to do so during this interim period. The Schedule
of Performance establishes outside dates for which to perform, however, both parties will
work towards commencing and completing performance milestones prior to the outside
dates. The critical components of the existing DDA such as price and terms remain
unchanged under this First Amendment.
1 S�bPU t V 6sfw V
Christopher Koster Ryan Swiontek
Director of Economic Development Senior Management Analyst
Attachment: First Amendment to the DDA between City of Tustin and Brookfield Homes
Southern California LLC
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
FIRST AMENDMENT TO TUSTIN LEGACY
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR PORTIONS OF DISPOSITION PARCELS 2C AND 8
This FIRST AMENDMENT TO TUSTIN LEGACY DISPOSITION AND
DEVELOPMENT AGREEMENT FOR PORTIONS OF DISPOSITION PARCELS 2C
AND 8 (this "First Amendment") is entered into as of June 2, 2020 (the "First Amendment
Effective Date") by and between the CITY OF TUSTIN (as more fully defined in the Original
DDA (defined below), the "City") and BROOKFIELD HOMES SOUTHERN CALIFORNIA
LLC, a Delaware limited liability company (as more fully defined in the Original DDA,
"Developer"). The City and Developer are sometimes referred to herein individually as a"Party"
and collectively as the "Parties".
RECITALS
A. The City and Developer entered into that certain Tustin Legacy Disposition and
Development Agreement for Portions of Disposition Parcels 2C and 8 dated as of December 17,
2019 (the "Original DDA") pursuant to which, among other things, the City agreed to sell, and
the Developer agreed to purchase, the Property (as defined in the Original DDA). Initially
capitalized terms not defined herein shall have the respective meanings assigned to such terms in
the Original DDA. The Original DDA as amended by this First Amendment is referred to herein
as the "Agreement".
B. In connection with the Original DDA, Developer and the City agreed to two
extensions of the Due Diligence Period, with the result that the Due Diligence Period has been
extended to June 5, 2020.
C. By execution of this First Amendment, Developer intends to waive its right to
terminate the Agreement during the Due Diligence Period with the effect that the Due Diligence
Period will terminate effective upon execution and delivery of this First Amendment by the Parties
and the Agreement shall thereafter remain in full force and effect. Developer intends to enter into
this First Amendment in order to, among other things, provide the City with a Diligence
Termination Notice in accordance with Section 5.1 of the Original DDA(indicating that Developer
has not elected to terminate the Agreement).
D. As a result of the ongoing COVID-19 pandemic, City and Developer have agreed
to extend the dates for performance of various obligations of each of the Parties under the Original
DDA for the periods set forth herein, and to suspend (1)the date upon which the Purchase Price
Deposit becomes non-refundable to September 1, 2020, and (2)the effectiveness of the limited
license granted by the City to Developer pursuant to Section 5.4 of the Original DDA until
September 1, 2020, as further set forth in this First Amendment
E. Developer and the City have entered into this First Amendment to memorialize the
concepts describe above by modifying relevant provisions of the Agreement as further set forth
below.
Tustin/Brookfield First Amendment to DDA 1 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
AGREEMENT
NOW THEREFORE, in consideration of the foregoing Recitals, which are hereby
incorporated in the operative provisions of this First Amendment by this reference, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties further agree as follows:
1. Termination of Due Diligence Period; Continuation of Agreement in Effect. This First
Amendment serves as Developer's Diligence Termination Notice confirming that Developer elects
to waive its due diligence contingency and proceed to the Close of Escrow with respect to the
Project and the Property subject to the other terms and conditions set forth in the Agreement and
confirms and agrees that the Due Diligence Period and the limited license granted pursuant to
Section 5.4 have terminated and are of no further force or effect and Developer hereby waives any
and all rights granted to it under the Agreement to terminate the Agreement pursuant to
Sections 5.1, 5.3, 6.1 and/or 6.2 of the Original DDA.
2. Modification to Section 4.3 of the Original DDA. Section 4.3.2 of the Original DDA is
hereby deleted in its entirety and replaced with the following:
"4.3.2 Application of Purchase Price Deposit. Effective September 1,
2020, the Purchase Price Deposit (including, upon deposit thereof in Escrow,
the Additional Purchase Price Deposit) shall be nonrefundable except as
otherwise expressly provided in Sections 15.3 and 15.4 and shall be applied to
the Base Purchase Price as set forth in Section 4.3.3, or shall be liquidated
damages to the City in the event of certain Defaults by Developer as further set
forth in Articles 14 and 15 of this Agreement."
3. Modification to Section 5.3 of the Original DDA. Section 5.3 of the Original DDA is
hereby deleted in its entirety and replaced with the following:
"5.3 Termination of Agreement. If Developer elects to terminate this
Agreement (a)by providing a written notice to the City in accordance with
Section 17.6 of this Agreement on or before September 1, 2020 stating that it
elects to terminate this Agreement due to economic impacts occurring as a
result of the COVID-19 pandemic ("Economic Termination Notice"), or
(b)prior to the Close of Escrow pursuant to its post Due Diligence Period
termination rights set forth in Section 6.3, this Agreement shall automatically
terminate on the date of such election and thereafter, and in accordance with
Section 15.1.3, neither Party shall have any further obligations under this
Agreement (subject to the provisions that expressly survive the termination of
this Agreement); provided that Escrow Holder shall return to Developer the
portion of the Purchase Price Deposit then held by Escrow Holder, less
Developer's share of any title and escrow cancellation fees of Escrow Holder
and outstanding DDA Transaction Expenses to the extent not covered by the
Tustin/Brookfield First Amendment to DDA 2 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
City Costs Deposit, if any, and less the Independent Contract Consideration,
which shall be retained by the City."
4. Modification to Section 6.3 of the Original DDA. Section 6.3 of the Original DDA is
hereby amended as follows:
4.1 First Sentence. The first sentence of Section 6.3 of the Original DDA is hereby
deleted in its entirety and replaced with the following:
"If, following the First Amendment Effective Date and prior to the Close of
Escrow, the Title Company discloses additional matters that affect title to the
Property not disclosed on the Preliminary Report,then within ten(10)calendar
days after Developer's receipt of any report issued by the Title Company
concerning the Property (a "Supplemental Title Report"), Developer shall
cause to be provided to 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
Report and that is not acceptable to Developer (each a "Disapproved
Exception") together with Developer's suggested cure thereof (to the extent
capable of being cured); provided, however, that Developer shall not have the
right to disapprove any item or exception specifically consented to by
Developer, including all exceptions arising pursuant to this Agreement and all
Permitted Exceptions approved or deemed approved pursuant to Section 6.2. "
4.2 Fifth Sentence. The fifth sentence of Section 6.3 of the Original DDA is hereby
deleted in its entirety and replaced with the following:
"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 take title to the Property in the manner
set forth in this Agreement and without either deduction or offset to the Base
Purchase Price or the Profit Participation Price, and waive such Disapproved
Exception without cause of action under this Agreement against the City, or
(ii) to provide written notice to the City within five (5) Business Days after the
City's election or deemed election, of Developer's election to terminate this
Agreement and the Escrow, in which case the Purchase Price Deposit, to the
extent previously paid by Developer, shall be refunded to Developer in
accordance with Section 5.3; provided that Developer's failure to provide the
City within said five (5) Business Days 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 election to terminate
this Agreement."
Tustin/Brookfield First Amendment to DDA 3 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
5. Modifications to Article 7 of the Original DDA.
5.1 Modification to Section 7.1.1 of the Original DDA. Section 7.1.1 of the Original
DDA is hereby deleted in its entirety and replaced with the following:
"7.1.1. Close of Escrow. Unless otherwise mutually agreed by the Parties
in writing, the Close of Escrow shall take place on that date which is twenty
(20) Business Days following the last to occur of the satisfaction, or the waiver
thereof by the Party for whose benefit the condition applies, of the Developer
Closing Conditions set forth in Sections 7.2.1(d), (e), (f),(g) and(h) and the
City Closing Conditions set forth in
Sections 7.2.2(c), (d), (e), (f), (g), (h), (j), (k), (1) and(n) ("Closing Date");
provided that(a) in no event shall either City or Developer be obligated to close
Escrow unless each has received at least five (5) Business Days' advance
written notice from the other party of the anticipated date for satisfaction of
such City Closing Conditions, and(b)the Close of Escrow shall in no event be
later than November 1,2021,provided that the same may be extended for Force
Majeure Delay on a day for day basis for each day of Force Majeure Delay
approved pursuant to Section 17.7 with respect to the License Area Grading
Work in the City Streets License Area or the Initial City Improvements
("Outside Closing Date"). The Close of Escrow shall be subject to the
satisfaction (or waiver by the Party benefited by such condition) of all of the
conditions set forth in Section 7.2 and shall take place at the offices of Escrow
Holder, or at such other place that the City selects."
5.2 Modification to Section 7.1.2(b) of the Original DDA. Section 7.1.2(b) of the
Original DDA is hereby deleted in its entirety and replaced with the following:
"The City shall have the right in its sole discretion, but not the obligation, to
extend the Closing Date and the Outside Closing Date on a day for day basis
for each day of delay upon occurrence of any of the following: (i) if the Flight
Way Component was not completed, certified by the engineer of record as
complete in accordance with the Approved Plans and accepted by the Director
of Public Works by February 28, 2021 or if the remainder of the Grading Work
within the City Streets was not completed, certified by the engineer of record
as complete in accordance with the Approved Plans and accepted by the
Director of Public Works by April 30, 2021,regardless of whether the City had
at any time provided written notice to Developer of Default or such delay is a
Force Majeure Delay, (ii) if the City has not completed the Initial City
Improvements within Flight Way between Armstrong Avenue and Street "D"
by July 30, 2021 or the remainder of the Initial City Improvements by
September 30, 2021,due to delay by Developer in completing the License Area
Grading Work or due to Force Majeure Delay, or (iii)provided the Initial City
Improvements are completed by the dates specified in clause (ii) above, as
extended thereby, if the Developer Closing Condition set forth in
Tustin/Brookfield First Amendment to DDA 4 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Section 7.2.1(f) has not been satisfied due to Force Majeure Delay including
due to failure of IRWD or SCE to perform the required inspections or provide
the required approvals."
5.3 Modification to Section 7.1.2(c) of the Original DDA. Section 7.1.2(c) of the
Original DDA is hereby deleted in its entirety and replaced with the following:
"In no event shall the Outside Closing Date be extended beyond December 31,
2022, and such date shall not be extended for Force Majeure Delay."
6. Modifications to Article 8 of the Original DDA.
6.1 Modification to Section 8.9.3 of the Original DDA. The third sentence of
Section 8.9.3 of the Original DDA is hereby deleted in its entirety and replaced with the following:
"The Phase Improvements, generally comprising those infrastructure
improvements and Common Area Improvements to be constructed within the
Phase areas as depicted on the Phasing Map attached hereto as Attachment 6,
shall be constructed sequentially by Phase; provided, however, the swimming
pool and restrooms and pedestrian access and landscaping related to such
facilities shall be completed on or before May 31, 2023 as further described in
the Schedule of Performance. For each Phase, Developer shall commence with
the components of the Phase Improvements comprising infrastructure
improvements."
6.2 Modification to Section 8.10 of the Original DDA. Section 8.10(a), (b) and (c) of
the Original DDA are hereby deleted in their entirety and replaced with the following:
118.10 City Improvements.
(a) The City Improvements are generally depicted on
Attachment 27 and are anticipated,upon completion,to provide multiple access
points for the Project. Following certification of the Flight Way Component of
the License Area Grading Work by the engineer of record as complete in
accordance with the Approved Plans and approval of such Flight Way
Component by the Director of Public Works, the City shall use good faith
efforts, subject to availability of funds, to construct the City Improvements.
Developer acknowledges that both its completion of the Flight Way Component
on the City Streets Grading Area and approval of the Flight Way Component
by the Director of Public Works as described in the preceding sentence are
conditions precedent to City's commencement of the City Improvements and
Developer's right to an Economic Termination and other requested Schedule of
Performance modifications set forth in the First Amendment may require that
the City re-bid its contract for City Improvements, which may result in further
delays to City performance of the City Improvements not enumerated in this
Agreement, which shall be considered excused delay. In carrying out
Tustin/Brookfield First Amendment to DDA 5 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
construction of the City Improvements, the City will seek to construct the City
Improvements in priority phases so as to first allow construction access to the
Model Lots, by installing utilities in Flight Way and paving Flight Way to a
standard meeting the construction access requirements of the Orange County
Fire Authority and thereafter by constructing roadways providing additional
construction access to the Property at subsequent times pursuant to the
milestones outlined in the Schedule of Performance. The City has approved the
plans for the City Improvements and intends to seek permits and to use good
faith efforts to construct the City Improvements consistent with the Schedule of
Performance. Notwithstanding anything to the contrary set forth in this
Agreement, Developer acknowledges that (i)the City will not execute a
contract for performance of the City Improvements or commence construction
of the City Improvements until it has received certification by the civil engineer
of record that the Flight Way Component is complete in accordance with the
Approved Plans, such portion of the License Area Grading Work has been
approved by the Director of Public Works, and the Additional Purchase Price
Deposit has been paid; (ii)the schedule established in the Schedule of
Performance for construction of the City Improvements is an estimate only and
failure of the City to commence or carry out the tasks described in this Section ,
or to complete construction of the City Improvements within the time set forth
above or at all or for any reason shall not be a Default by City under this
Agreement and (iii) for avoidance of doubt, due to the vagaries of the public
bidding process,the City cannot control,and shall not be deemed to be in breach
of its good faith obligation under this Section if completion of City
Improvements is delayed or cannot be completed due to any challenge, protest
or other third parry claim, act or failure to act, that delays or restricts the City's
issuance of requests for bids or awarding of contract(s) for the City
Improvements, the City's processing of requested change orders or the City's
ability to prosecute work under an awarded contract to completion as a result
of contractor challenges, issues or change order requests or other similar
matters. Developer further acknowledges that (x)portions of the City
Improvements such as capping of roadways, construction of sidewalks and
landscape may remain uncompleted until following Completion of the Project
to allow for future construction access and (y) satisfaction of the Developer
Closing Condition in Section 7.2.1(f) is subject to actions by IRWD and SCE
that are outside of the control of the City.
(b) The dates for performance by Developer of the Grading
Work within the City Streets Grading Area and the City's good faith efforts to
cause construction of the City Improvements have been divided into two
components in order to provide what is anticipated to be sufficient time for
IRWD and SCE to complete the work required to satisfy the Developer Closing
Condition in Section 7.2.1(f). Accordingly, time is of the essence with respect
to the commitments by Developer to commence the Flight Way Component on
Tustin/Brookfield First Amendment to DDA 6 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
or before November 30, 2020 and to achieve the February 28, 2021 date with
respect to the Flight Way Component and the April 30, 2021 date with respect
to the remaining components of the Grading Work within the City Streets
Grading Area. Developer acknowledges that the City's entry into a contract for
construction of the City Improvements on or after February 28, 2021 will be
made in reliance upon Developer's ability to deliver all of the Grading Work
within the City Streets Grading Area and to obtain the approval of the
Department of Public Works thereto, prior to April 30, 2021.
(c) Notwithstanding anything to the contrary set forth in this
Agreement, if the Flight Way Component has not been completed, certified by
the engineer of record as complete in accordance with the Approved Plans and
accepted by the Director of Public Works by February 28, 2021, or if the
remainder of the License Area Grading Work within the City Streets has not
been completed, certified by the engineer of record as complete in accordance
with the Approved Plans and accepted by the Director of Public Works by April
30, 2021, then regardless of whether the City has then provided written notice
to Developer of Default or such delay is a Force Majeure Delay, any and all of
the City's good faith commitments with respect to the performance of the City
Improvements shall be extended on a day for day basis for each day following
the above dates that the applicable condition set forth above has not been
satisfied and in addition,as further set forth in Section 7.1.2,the City shall have
a right to extend the Closing Date and the Outside Closing Date on a day for
day basis for each such day of delay."
7. Modifications to Attachment 1 of the Original DDA.
7.1 New Terms. The following terms are added, in the appropriate alphabetical order,
to the existing list of definitions in Attachment 1 to the Original DDA:
""Economic Termination Notice" shall have the meaning set forth in Section 5.3
of this Agreement."
""First Amendment Effective Date" shall mean the date set forth in the preamble
to the First Amendment to DDA."
""First Amendment to DDA" and "First Amendment" shall mean that certain
First Amendment to the Original DDA executed by Developer and City."
7.2 Modified Terms. The definitions of the following terms are hereby deleted in their
entirety and replaced by the following:
""Deposit Return Event" shall mean the occurrence of any one of the following:
Tustin/Brookfield First Amendment to DDA 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
(a) A failure to close Escrow on the Closing Date solely as a result of a
Default by the City in the performance of its obligations under this Agreement prior
to the Close of Escrow for which Developer is entitled to and does exercise its
remedies set forth in Section 15.3;
(b) an Economic Termination Notice is delivered by Developer to the
City in writing on or before September 1, 2020;
(c) a failure by the City to deliver closing documents and instruments
required under Section 7.2.1(a) on or before the Outside Closing Date if all other
City Closing Conditions and Developer Closing Conditions are either satisfied or
are waived by the benefited Party; or
(d) a failure to close Escrow on or before the Outside Closing Date, as
the same may be extended by the City in its sole discretion pursuant to
Section 7.1.1, as a result of the failure of the conditions to Close of Escrow set forth
in Section 7.2.2(g) related to formation of a new improvement area of the District
and adoption of an RMA for Improvement Area No. 2 (provided the same is not
caused by a Default by Developer with respect to Section 8.7.3(e)); or
(e) a failure to close Escrow on or before the Outside Closing Date as a
result of a failure of any one of the following Developer Closing Conditions:
(i) Section 7.2.1(b), as a result of a City election or deemed election not
to cure a Disapproved Exception as set forth in Section 6.3.-
(ii)
.3;(ii) Section 7.2.1(c), as a result of the existence of any agreement
entered into by the City other than a Permitted Exception that would survive
the Close of Escrow and of which Initial Developer or any subsequent
Developer had no knowledge as of the First Amendment Effective Date;
(iii) Section 7.2.1(k), if the City is unable to make a representation or
warranty set forth in Section 3.3 if the occurrence of a change in a
representation and warranty is materially adverse to Developer or the
Property; or
(iv) Section 7.2.1(h), if the City is unable to enter into a TUSD Lien
Release Documentation on or before the Outside Closing Date, as the same
may be extended by the City in its sole discretion pursuant to Section 7.1.U'
""Grading Work Initial Satisfaction Date" shall mean the date upon which each
of the following shall have occurred and remain true and correct: (a) (i)the Due
Diligence Period has terminated without delivery or deemed delivery by Developer
of a Diligence Termination Notice and the period in which the Developer has a
right to provide an Economic Termination Notice has either expired without
Tustin/Brookfield First Amendment to DDA 8 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
delivery of an Economic Termination Notice or the right to deliver the Economic
Termination Notice has been waived in writing by Developer prior to September 1,
2020, or(ii) prior to the date upon which the Due Diligence Period has terminated
by its terms, Developer has provided a written waiver of the Due Diligence Period
and of its right pursuant to Sections 5.1, 5.3, 6.2 and 6.3 to terminate this
Agreement; and (iii) the Purchase Price Deposit has become non-refundable;
(b)the Developer Closing Conditions in Sections 7.2.1(d) and (e), have been
waived by Developer or have been satisfied; (c)the City Closing Conditions in
Sections 7.2.2(c), (d), and (j) shall have been satisfied; (d) fully executed Grading
Bonds for the License Area Grading Work required to be delivered pursuant to
Section 8.9.1 shall have been delivered to the City by Developer; (e)the Tentative
City Map shall have been approved by the Planning Commission and the Developer
Tentative Tract Map shall have been approved by the City Council; (f)the
encroachment permits for the License Area Grading Work upon the City Streets
Grading Area and the grading permit for the rough grading portion of the Grading
Work upon the Real Property shall have been issued by the City; and (g) as of the
date upon which each of the foregoing items is satisfied,neither City nor Developer
is in Potential Default or Material Default under this Agreement and Developer is
not in default under any then executed License Agreement, the City has approved
the Approved Plans for the Grading Work, and provided that all other conditions to
commencement of such work described in the Entitlements,this Agreement and the
Schedule of Performance have occurred."
""Memorandum of DDA"shall mean a memorandum of record of this Agreement
to be Recorded against the Property substantially in the form and substance of the
memorandum attached to the Agreement as Attachment 12, as the same shall be
modified to reflect the execution of the First Amendment to DDA."
""Soil License Agreement' shall mean that certain license agreement with respect
to import and export of soil to and from the Real Property from other locations in
Tustin Legacy to be entered into by the City and Developer upon the request of
Developer but in no event prior to the Grading Work Initial Satisfaction Date,
which shall be in the form and substance of the license agreement attached as
Attachment 22E."
""Staging License Agreement" shall mean that certain license agreement with
respect to staging of construction of the Project to be entered into by the City and
Developer upon the request of Developer but in no event prior to the Grading Work
Initial Satisfaction Date, the form and substance of which shall be agreed upon by
the Parties and approved by the City administratively."
8. Modification to Attachment 7 of the Original DDA. Attachment 7 the Original
DDA is hereby deleted in its entirety and replaced with Attachment 7 (Revised)which is attached
to this First Amendment at Schedule 1. All references in the Agreement to the Schedule of
Tustin/Brookfield First Amendment to DDA 9 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Performance shall be deemed to be references to the Schedule of Performance (Revision 1)
attached as Schedule 1 to this First Amendment.
9. Miscellaneous
9.1 Agreement Ratified. Except as specifically amended or modified in this
First Amendment, each and every term, covenant, and condition of the Original DDA as amended
is hereby ratified and shall remain in full force and effect. Each and every reference to the
"Agreement" in the Original DDA (including, without limitation, the Attachments thereto) shall
be deemed to refer to the Original DDA as amended by this First Amendment. In the event of
conflict between the terms and conditions of the Original DDA and the terms and conditions of
this First Amendment,the terms and conditions of this First Amendment shall prevail and control.
9.2 Time of Essence. Time is of the essence with respect to all provisions of
this First Amendment in which a definite time for performance is specified; provided that the
foregoing shall not be construed to limit or deprive a Party of the benefits of any cure period or
Force Majeure Delay expressly provided for in this First Amendment.
9.3 Governing Law. This First Amendment is made with respect to real
property located in the State of California and shall be construed, interpreted and applied in
accordance with the laws of that State, without regard to conflict of laws provisions. The venue
for all suits shall be Los Angeles County, California.
9.4 Binding Agreement. This First Amendment shall be binding upon and
inure to the benefit of the Parties hereto and their respective heirs, representatives, successors and
permitted assigns.
9.5 Counterparts. This First Amendment 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 First
Amendment 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 First Amendment by facsimile or
other electronically transmitted signatures;provided that such execution by facsimile or electronic
transmission shall not be effective unless a manually executed copy of the signature page is
promptly sent by U.S. Postal Service, postage prepaid or overnight delivery service or is hand
delivered to the Parties. 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 First Amendment.
9.6 Entire Agreement. The Agreement as amended by this First Amendment
constitutes the entire agreement between Developer and the City hereto pertaining to the subject
matter hereof,and the final,complete and exclusive expression of the terms and conditions thereof.
Prior agreements, representations, negotiations, and understandings of the Parties, oral or written,
express or implied, are hereby superseded and merged into the Agreement.
Tustin/Brookfield First Amendment to DDA 10 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
9.7 Schedules and Attachments. Unless otherwise indicated, references in
this Agreement to articles, sections, paragraphs, subsections, clauses, exhibits, attachments and
schedules are to the same contained in or attached to this Agreement and all attachments and
schedules referenced in this First Amendment are incorporated into the Agreement by this
reference as though fully set forth in this Section.
9.8 No Waiver. No waiver of any provision or consent to any action under this
First Amendment shall constitute a waiver of any other provision of the Agreement 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 the 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.
9.9 Authority. The City and Developer each hereby represents that the person
executing this First Amendment on behalf of such party has full authority to do so and to bind such
party to perform pursuant to the terms and conditions of this First Amendment.
9.10 Date and Delivery of First Amendment. Notwithstanding anything to the
contrary contained in this First Amendment or the Original DDA, the Parties intend that this First
Amendment shall be deemed effective, executed and delivered for all purposes under this First
Amendment 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 First Amendment Effective
Date.
{signatures on following page}
Tustin/Brookfield First Amendment to DDA 11 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
IN WITNESS WHEREOF, City and Developer have executed this First Amendment as of the
First Amendment Effective Date.
CITY OF TUSTIN:
Dated: By:
Matthew S. West
City Manager
ATTEST:
By:
Erica N. Yasuda
City Clerk
APPROVED AS TO FORM
By:
David Kendig
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:
Amy E. Freilich
DEVELOPER:
BROOKFIELD HOMES SOUTHERN
CALIFORNIA LLC, a Delaware limited
liability company
By:
Name:
Title:
By:
Name:
Title:
Tustin/Brookfield First Amendment to DDA S-1 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
JOINDER OF ESCROW HOLDER
The undersigned is joining this Agreement to evidence its agreement to receive, hold and
disburse the Purchase Price Deposit in accordance with the terms of this Agreement and
otherwise to comply with the escrow instructions set forth in this Agreement.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
Name:
Title:
Tustin/Brookfield First Amendment to DDA S-2 City of Tustin/Brookfield Homes
05-22-2020 FINAL Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
SCHEDULE I TO FIRST AMENDMENT TO DDA
ATTACHMENT 7 (REVISED)
SCHEDULE OF PERFORMANCE (REVISION 1)
The attached Schedule of Performance (Revision 1) supersedes
the Schedule of Performance attached to the Original DDA
[see attached]
Tustin/Brookfield First Amendment to DDA Schedule 1 City of Tustin/Brookfield Homes
05-22-2020 FINAL 1 Por.Parcels 2C and 8
First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
ATTACHMENT 7 (REVISED)
SCHEDULE OF PERFORMANCE (REVISION 1)
REVISED PER FIRST AMENDMENT TO THE DDA
Note: References herein made to "DDA" shall mean the Tustin Legacy Disposition and
Development Agreement for Portions of Disposition Parcels 2C & 8 of which this Attachment is
a part. Except as otherwise noted, all capitalized terms within the DDA and the Attachments shall
retain the meaning as defined in the DDA. Any dates identified in this attachment are intended to
reflect the provisions of the DDA. For purposes of determining any Potential Default or Material
Default, Section 14 of the DDA shall apply. In addition, to the extent any of the terms and
provisions of this Attachment are inconsistent with or otherwise are in conflict with the terms and
provisions of the DDA or the Other Agreements, the DDA or Other Agreements, as applicable,
shall control.
DDA Item Action Responsible
Party
1. MAPPING, GRADING, INFRASTRUCTURE, UTILITIES, BUILDING PERMITS
A 7.1.3; Developer Prior to Close of Escrow, the City Map Developer
7.2.1(g); Final Tract shall have been Recorded and the
7.2.2(e); Map Approval Developer Final Tract Map shall have
8.9.1 and Recording; been approved by the City. In addition,
Subdivision Developer shall have provided all
Improvement Performance Bonds in favor of the City as
Agreement; obligee securing Developer's obligations
Performance to perform the Horizontal Improvements.
Bonds Developer shall cause the Developer Final
Tract Map to be Recorded within six(6)
months following the Close of Escrow.
Developer shall enter into the Subdivision
Improvement Agreement with the City
prior and as a condition to Recording of
the Developer Final Tract Map and
issuance by the City of building permits
for an Homes, including Models.
B 7.2.2(f); Developer Within 180 calendar days after Effective Developer
8.9.2; submits Date of DDA but in all events prior and as
8.9.3 Horizontal a condition to Close of Escrow.
Improvements
and Phase
Improvements
plans for
approval
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
2 First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
C City issues The City shall use good faith efforts to City
Horizontal issue within ten (10) Business Days
Improvement following: (a) Community Development
permits Department and Public Works approval of
final grading plans; and(b) Developer's
(i)payment of all required permit fees,
(ii) delivery of associated Performance
Bonds, and(iii) satisfaction of all required
conditions of approval associated with
grading and Horizontal Improvements; and
(c) if commencement of construction is to
occur prior to the Close of Escrow,
execution of the Horizontal Improvements
License Agreement and any other
necessary License Agreements to perform
the Horizontal Improvements.
D City issues With respect to each building permit City
building application, the City shall use good faith
permits efforts to issue within ten (10) Business
Days following: (a)building division
approval of building plans; (b) Developer's
payment of all required fees associated
with applicable building permit;
(c) satisfaction of all required conditions of
approval associated with applicable
building permit; and(d) Recording of the
Developer Final Tract Map; provided,
however, that building permits for Model
Homes are exempt from the requirement to
have prior Recordation of the Developer
Final Tract Map.
2. CONSTRUCTION OF IMPROVEMENTS
A 8.1.5; Horizontal The Grading Work on the Real Property Developer
8.9.1; Improvements shall have commenced three (3)months
8.9.2; following Close of Escrow and the Project
8.11 (including the Horizontal Improvements,
16.4.1(a) Phase Improvements, Vertical
Improvements and all of the Homes) shall
be Completed within the earlier of
(a) sixty-one (6 1)months following
opening of the first of the Models to the
public, subject to extension for a maximum
total of twelve (12)months for Force
Majeure Delqy orb six -six 66 months
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
3 First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
after Close of Escrow, subject to extension
for a maximum total of twelve (12)months
for Force Majeure Delay.
B 12.8 Water Complete construction of the Water Developer
Treatment Treatment Improvements prior to the
Improvements earlier of(a) opening of the first of the
Models for viewing by the public, (b)upon
final cap pave of the first of the City
Streets (such that the first of the City
Streets is ready to open to travel) or
(c) certificate of occupancy for the first of
the Models.
C 8.1.5; City Streets Commencement of the portion of the Developer
8.9.1; Grading Area License Area Grading Work within the
8.10(b) City Streets Grading Area comprised of the
Flight Way Component (i.e., Flight Way
from Armstrong Avenue to Street"D"), by
November 30, 2020, and completion with
certification by the engineer of record and
acceptance by the Director of Public
Works by February 28, 2021, which may
be extended due to Force Majeure Delay.
Completion of the remaining Grading
Work in the City Streets Grading Area,
certified by the engineer of record and
accepted by the Director of Public Works
by April 30, 2021, which may be extended
due to Force Majeure Delay, but in all
events prior and as a condition for the
benefit of the City to Close of Escrow.
D 8.9.2; Boundary Completion of the public right-of-way Developer
12.8 Landscape improvements within the Boundary
Area public Landscape Area and Publicly Accessible
right-of-way Common Area Improvements in each
improvements respective Phase prior to issuance of the
inclusive of first certificate of occupancy for the first
sidewalks and Home in said Phase; or in the case of the
landscaping Phase (Lot 2) containing Model Homes,
and irrigation prior to the opening of the first of the
(including the Models to the public.
street planters) Completion of sidewalk and parkway
and the landscape and irrigation(including the
Publicly street planters) on Street"D" from Tustin
Accessible Ranch Road to Airship Avenue and on
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
4 First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Common Area Street`B" from Flight Way to Airship
Improvements Avenue no later than thirty-six (36)months
following the Close of Escrow.
E 8.9.3 Phase The amenity on Lot 64 of Tract 19103 (the Developer
Improvements swimming pool and restroom building) and
Constructed the pedestrian access and landscaping
with related to such facilities shall be completed
Horizontal no later than May_ 31, 2023.
Improvements
F 8.1.5; Construction Subject to Section 8.10 of the DDA, the City
8.10 of City City shall use good faith efforts to execute
Improvements a construction contract for the City
Improvements following Completion of the
Flight Way Component of the License
Area Grading Work, certification by the
engineer of record that the Flight Way
Component is complete in accordance with
the Approved Plans, approval of the Flight
Way Component by the Director of Public
Works (the foregoing, the "Flight Way
Component Conditions") and payment by
Developer of the Additional Purchase Price
Deposit.
Developer acknowledges that satisfaction
of the Flight Way Component Conditions
are conditions precedent to City's
commencement of the City Improvements
and that the schedule below is a good faith
estimate only and failure of the City to
commence or carry out the tasks described
in this Section, or to complete construction
of all or any portion of the City
Improvements within the time periods set
forth below or at all or for any reason shall
not be a Default by City under the DDA.
The time frames for completion of each of
the phases of the City Improvements are
predicated upon satisfaction of the Flight
Way Component Conditions by February
28, 2021. The terms and conditions of
Section 8.10 of the DDA shall apply to the
following as though fully set forth herein.
Initial City Improvements: Flight Way
from Armstrong to Street"D". City to
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
5 First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
have (i) installed sewer, storm drain,
domestic water and recycled water,
domestic water and sewer inspected and
testing completed by IRWD and available
for Developer to connect by July 30, 2021,
and(ii) street base paved and dry utility
ducts, vaults, pull boxes and handholes
installed and accepted by Southern
California Edison(SCE) for cabling by
September 30, 2021.
Phase 1 City Improvements: City to have
Flight Way from Armstrong to Street"D"
capped, manholes raised to grade, and
signage installed by January 30, 2022.
Phase 2 City Improvements: Street"E"
from Armstrong to Legacy Road and Street
"C" from Flight Way to Street"E" and
Street"D" from Street"E"to Tustin Ranch
Road. City to have (i) domestic water
within Street"E" from Armstrong Avenue
to Street"D" and within Street"D" from
Flight Way to Street"E" installed,
inspected and testing completed by IRWD
and available for Developer to connect by
January 30, 2022, and(ii)the remaining
improvements completed by July 30, 2022.
Phase 3 City Improvements: Street"B"
from Flight Way to Airship Avenue to be
completed by the City by July 30, 2022.
Phase 4 City Improvements: Street"H"
from Street`B"to Street"D" and Street
"C" from Street"E"to Street"H" and
Street"D" from Street"E"to Street"H"
completed by the City by October 31,
2022.
Phase 5 City Improvements: Airship
Avenue from Armstrong to Legacy Road
and Street"C" from Street"H"to Airship
and Street"D" from Street"H"to Warner
Avenue to be completed by the City by
October 31, 2022.
G 8.1.5(b); Remaining Except as set forth in Section 2.E of this Developer
8.9.2; Phase Schedule of Performance, Phase
Improvements; Improvements shall be constructed
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
6 First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
8.9.3:8.9. Vertical sequentially by Phase and improvements
4; 8.11 Improvements for each Phase shall be completed
concurrently with completion of the Units
in such Phase. Vertical Improvements shall
be commenced and completed in
compliance with the Inventory
Commitment. All Improvements
(including Phase Improvements and
Vertical Improvements) shall be
Completed within the earlier of(a) sixty-
one (6 1)months following opening of the
first of the Models to the public, subject to
extension for a maximum total of twelve
(12)months for Force Majeure Delay or
(b) sixty-six (66)months after Close of
Escrow, subject to extension for a
maximum total of twelve (12)months for
Force Majeure Delay.
H 8.9.5 Construction Developer commences construction of the Developer
of Models first of the Models within six (6)months
following the Close of Escrow.
Complete construction of all Models not
later than eighteen(18)months following
the Close of Escrow, provided that Force
Majeure Delays shall not exceed three (3)
months in the aggregate. Model Home
construction on the Development Parcels to
consist of three (3) Model complexes (13
Models) consisting of the following: three
(3) detached single family residences,
seven(7)motor court flats and three (3)
townhomes), representative of Homes in
each of the three product types proposed to
be constructed as part of the Project.
I 8.9.5(a), Initial Product Complete construction of initial production Developer
16.4.1(b) inventory home inventory within nine (9)months
following opening of the first of the
Models to the public.
J 8.9.5(b) Ongoing Construct, obtain valid certificates of Developer
Inventory occupancy and offer for sale the Homes in
Requirement production phases which are based upon a
reasonable analysis of market conditions
and anticipated absorption and which
otherwise are in conformance with the
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
7 First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Schedule of Performance. Taking into
consideration the market conditions and
anticipated absorption, use commercially
reasonable efforts to commence
construction of each subsequent production
phase of Homes not later than the Close of
Escrow on the last Home for sale to the
public in the prior production phase.
K 8.12(e) Bonding or Developer shall, within thirty (30) calendar Developer
Removal of days following receipt of notice thereof,
Construction cause to be removed or bonded against
Liens (such bonding to be by the provision of
bonds satisfying California statutory
requirements) any Construction Liens.
L 8.1.5; Outside Date Notwithstanding any other provision of this Developer
8.11; of Completion Agreement, the Developer shall be
of obligated to Complete the Project
Construction (including Horizontal Improvements,
Phase Improvements, Vertical
Improvements and all of the Homes)
within the earlier of(a) sixty one (6 1)
months following opening of Models to the
up blit, or(b) sixty six(66)months after
Close of Escrow, each of which may be
extended for Force Majeure Delay not to
exceed a total of twelve 12 months.
3. FINANCING
A 8.5.1 Financial After the Close of Escrow, and thereafter Developer
Capability until issuance of the Certificate of
Compliance, Developer shall continue to
be responsible for demonstrating to the
City the financial capacity of Developer
and the capability of Developer to perform
its obligations under this Agreement. In
addition to the requirements set forth in
Sections 4.6.1, 4.6.2, and 4.6.5, during the
period commencing on the Close of
Escrow and ending on the issuance of the
Certificate of Compliance for the Project,
Developer shall submit annually, on the
anniversary of the Closing Date, a date-
down of the Updated Financing Plan
resented at Close of Escrow.
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
8 First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
B 8.6 Project Budget Prior to the issuance of the Certificate of Developer
Statement Compliance for the Project(but not more
frequently than quarterly), at City request,
Developer shall provide a Project Budget
Statement within thirty (30) calendar days
following the later of Developer's receipt
of the City's written request therefor and
the ex iration of the i1pplicable quarter.
4.DESIGN AND CONDOMINIUM PLAN APPROVAL
A 8.4.6 Basic Concept Developer shall submit any modifications Developer
Plan to the Basic Concept Plan to City in
Modification writing. The City, in its Proprietpa
Capacity only, shall conclusively be
deemed to have disapproved such
modifications to the Basic Concept Plan
unless, within fifteen (15) Business Days
after the Ci . 's receipt of such
modifications, the City gives written notice
of approval to Developer. Developer shall
make changes in response to the City's
notice of disapproval or deemed
disapproval and resubmit such Basic
Concept Plan to the City for review and
approval in accordance with the provisions
of Section 8.4.6 (and in such case the
City's review period shall be ten (10)
Business Days.)
B 8.4.3 Submission of Unless required to be submitted prior to Developer
Final Design Close of Escrow to satisfy a City Closing
Drawings Condition(in which event the same shall
be submitted prior to Close of Escrow),
Developer shall submit for approval by the
City in its Governmental Capacity, not
later than six (6)months following the
Close of Escrow, final design drawings and
related documents conforming to the
requirements of the City Code, the Specific
Plan and all other Entitlements and
conditions of approval.
5. CERTIFICATE OF COMPLIANCE
A 9.1; Developer Within thirty_(30) days from the date all Developer
9.3 submits Conditions Precedent to issuance are
request for satisfied, Developer shall submit a
issuance of the certification of satisfaction of all
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
9 First Amendment to DDA
DocuSign Envelope ID:017DC25D-E48F-4BC4-930A-CECD4686EE94
Certificate of Conditions Precedent and a request for
Compliance by issuance of Certificate of Compliance.
city
B 9.6 The City Within fifteen (15) Business Days City
approves or following submission by Developer of
disapproves certification of satisfaction of all conditions
the request for precedent set forth in Section 9.3 of the
issuance of the DDA
Certificate of
Compliance
C 9.6 City shall Within five (5) Business Days following City
cause the issuance of Certificate of Compliance by
Recording of City
the Certificate
of Compliance
Tustin/Brookfield First Amendment to DDA Attachment 7 City of Tustin/Brookfield Homes
05-22-2020 FINAL (Revised) Por.Parcels 2C and 8
10 First Amendment to DDA