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Home My WebLink About04 SECOND READING AND ADOPTION OF ORDINANCE NO. 1515 AND RESOLUTION NO. 21-68DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 V Ir Q�1AGENDA REPORT MEETING DATE TO FROM SEPTEMBER 7, 2021 MATTHEW S. WEST, CITY MANAGER ERICA N. YASUDA, CITY CLERK Agenda Item 4 Reviewed: DS City Manager ?'n5W Finance Director N/A SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO. 1515 AND ADOPTION OF RESOLUTION NO. 21-68 (RED HILL AVENUE MIXED- USE PROJECT AT 13751 AND 13841 RED HILL AVENUE) SUMMARY: Adoption of Ordinance No. 1515 approves Development Agreement (DA) 2021-0001 between the City of Tustin and Irvine Asset Group LLC. Adoption of Resolution No. 21-68 approves an Infrastructure Construction and Reimbursement Agreement between the City of Tustin and Irvine Asset Group LLC. RECOMMENDATION: That the City Council: 1. Have second reading by title only and adoption of Ordinance No. 1515; and 2. Adopt Resolution No. 21-68, approving an Infrastructure Construction and Reimbursement Agreement between the City of Tustin and Irvine Asset Group LLC and authorizing the City Manager to execute the agreement subject to any non -substantive modifications as may be deemed necessary and/or recommended by the City Attorney. BACKGROUND: On August 17, 2021, the City Council had first reading by title only of the following Ordinance: ORDINANCE NO. 1515 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING DEVELOPMENT AGREEMENT (DA) 2021-0001 BETWEEN THE CITY OF TUSTIN AND IRVINE ASSET GROUP, LLC TO FACILITATE THE DEVELOPMENT OF A MIXED-USE DEVELOPMENT CONSISTING OF 137 RESIDENTIAL APARTMENT UNITS AND 7,000 SQUARE FEET OF COMMERCIAL SPACE ON AN APPROXIMATE 3.38 ACRE SITE LOCATED WITHIN THE RED HILL AVENUE SPECIFIC PLAN (RHASP) AT 13751 AND 13841 RED HILL AVENUE (APN 500-141-09 and 500-141-10). On August 17, 2021, the City Council also approved Resolution No. 21-66 and Resolution 21-67 approving the project which contained the CEQA addendum for the project as well as the project conditions of approval. As referenced in Resolution 21-67, an Infrastructure DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Construction and Reimbursement Agreement must be in place between the City of Tustin and Irvine Asset Group LLC in order to facilitate the construction of the infrastructure improvements associated with the project. This agreement requires approval by the City Council. Attachments: 1. Ordinance No. 1515 a. Exhibit A: Development Agreement 2021-0001 2. Resolution No. 21-68 a. Exhibit A: Infrastructure Construction and Reimbursement Agreement DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 RESOLUTION NO. 21-68 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING AN INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF TUSTIN AND IRVINE ASSET GROUP, LLC. FOR PUBLIC INFRASTRUCTURE IMPROVEMENTS ASSOCIATED WITH A MIXED-USE DEVELOPMENT CONSISTING OF 137 RESIDENTIAL APARTMENT UNITS AND 7,000 SQUARE FEET OF COMMERCIAL SPACE ON AN APPROXIMATE 3.38 ACRE SITE LOCATED WITHIN THE RED HILL AVENUE SPECIFIC PLAN (RHASP) AT 13751 AND 13841 RED HILL AVENUE (APN 500-141-09 and 500-141-10). The City Council of the City of Tustin does hereby resolve as follows: WHEREAS, the City of Tustin negotiated an Infrastructure Construction and Reimbursement Agreement with Irvine Asset Group, LLC., the developer of the Red Hill Avenue Mixed -Use Project at 13751 and 13841 Red Hill Avenue; and WHEREAS, the developer will complete the design and construction of the public improvements for the benefit of the City's residents; and WHEREAS, following installation, staff will inspect all public improvements to determine that the improvements are in compliance with City rules and regulations; and WHEREAS, based upon negotiations with the developer and upon successful review of paid invoices, staff will recommend reimbursement in an appropriate amount once all improvements have been accepted by the City. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Tustin authorizes the Community Development and Public Works Departments to coordinate and process the agreement, and for the City Manager to execute the Infrastructure Construction and Reimbursement Agreement attached hereto as Exhibit A with the developer of the property located at 13751 and 13841 Red Hill Avenue, Tustin, California. PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin on this 7t" day of September, 2021. LETITIA CLARK Mayor ERICA N. YASUDA City Clerk DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Resolution No. 21-68 Page 2 of 4 APPROVED AS TO FORM: DAVID E. KENDIG City Attorney Exhibit A: Draft Infrastructure Construction and Reimbursement Agreement STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR RESOLUTION NO. 21-68 I, Erica N. Yasuda, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; and that the above and foregoing Resolution No. 21-68 was duly passed, and adopted at a regular meeting of the City Council held on the 7t" day of September, 2021, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: ERICA N. YASUDA City Clerk DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Resolution No. 21-68 Page 3 of 4 i *AV :u:11r_2 Infrastructure Construction and Reimbursement Agreement DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT by and between THE CITY OF TUSTIN and IRVINE ASSET GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY Dated , 2021 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 TABLE OF CONTENTS INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT RECITALS............................................................................................................................................... 1 ARTICLE I DEFINITIONS..................................................................................................................... 2 Section1.1 Definitions.......................................................................................................................2 ARTICLE II CONSTRUCTION OF IMPROVEMENTS....................................................................... 8 Section 2.1 Preparation of Plans........................................................................................................ 8 Section 2.2 Duty of Developer to Construct...................................................................................... 8 Section2.3 Contract Requirements.................................................................................................... 9 Section2.4 Changes......................................................................................................................... I I Section 2.5 Bonding Requirements.................................................................................................. 13 Section 2.6 Inspection; Completion of Construction....................................................................... 14 Section 2.7 Maintenance of Improvements; Transfer of Interest and Warranties ........................... 14 Section 2.8 Insurance Requirements................................................................................................ 14 Section 2.9 Liens and Stop Notices................................................................................................. 16 Section 2.10 Improvement Project Coordination............................................................................... 17 Section 2.11 Warranties and Guarantees........................................................................................... 16 Section 2.12 Disclaimer of Responsibility......................................................................................... 17 ARTICLE III ACQUISITION OF IMPROVEMENTS......................................................................... 17 Section 3.1 Transfer of Ownership of Improvements to City.......................................................... 17 Section 3.2 City Acceptance Process............................................................................................... 17 Section3.3 Release of Bonds........................................................................................................... 19 ARTICLE IV PAYMENTS, REIMBURSEMENT PROCEDURES AND RECONCILIATION ........ 19 Section 4.1 Progress Payments for Improvements........................................................................... 19 Section4.2 Payee............................................................................................................................. 20 Section 4.3 Survival of Provisions................................................................................................... 20 ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION 20 Section 5.1 Representation and Warranties of Developer............................................................... 20 Section 5.2 Covenants of Developer................................................................................................ 22 Section 5.3 Representations and Warranties of the City.................................................................. 22 Section 5.4 Indemnification by Developer...................................................................................... 23 ARTICLE VI REMEDIES; TERMINATION; DAMAGES................................................................. 23 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Section 6.1 Termination for Cause by City...................................................................................... 22 Section 6.2 Termination of Construction Contracts......................................................................... 24 Section 6.3 Remedies in General; Damages Limited...................................................................... 24 Section6.4 Survival......................................................................................................................... 25 ARTICLE VII MISCELLANEOUS....................................................................................................... 25 Section 7.1 Independent Contractor................................................................................................. 25 Section 7.2 Binding on Successors and Assigns.............................................................................. 26 Section7.3 Amendments................................................................................................................. 27 Section7.4 Counterparts.................................................................................................................. 27 Section7.5 Notices.......................................................................................................................... 27 Section 7.6 Force Majeure Delay..................................................................................................... 28 Section 7.7 Duplicate Originals....................................................................................................... 26 Section 7.8 Entire Agreement.......................................................................................................... 28 EXHIBIT A — Legal Description.......................................................................................................... A-1 EXHIBIT B — Site Plan........................................................................................................................ B-1 EXHIBIT C — Description Partially Reimbursable Improvements...................................................... C-1 EXHIBIT D - Potential Change of Work Form................................................................................... D -I EXHIBIT E - Form of Concurrence Letter...........................................................................................E-I EXHIBIT F - Form of Assignment Agreement.................................................................................... F -I EXHIBIT G - Form of Request for Acceptance.................................................................................. G-1 EXHIBIT H - Construction Schedule................................................................................................. H-1 EXHIBIT I - Form of Payment Request...............................................................................................I-1 EXHIBIT J - Construction Contract Terms...........................................................................................J-1 EXHIBIT K - Subcontractor Insurance Requirements........................................................................ K-1 EXHIBIT L - Professional Insurance Requirements............................................................................ L -I EXHIBIT M - Lien Release Requirements.........................................................................................M-1 EXHIBIT N - Payment Request Submittal Procedures....................................................................... N-1 EXHIBIT O - Form of Payment Bond................................................................................................ 0-1 EXHIBIT P - Form of Performance Bond............................................................................................ P-1 EXHIBIT Q — Developer Bid and Award Procedures......................................................................... Q-1 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT THIS INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT ("Agreement") is entered into as of , 2021 ("Effective Date"), by and between the CITY OF TUSTIN, a California municipal corporation ("City") and Irvine Asset Group, LLC, a California limited liability company ("Developer"). City and Developer are sometimes referred to in this Agreement individually as a "Party" and collectively as the "Parties." RECITALS A. Developer has either an equitable interest in real property, or owns the real property, constituting 3.389 aces located in the City of Tustin, County of Orange, State of California, located at 13751/13842 Red Hill Avenue in the Red Hill Avenue Specific Plan (RHASP) (APN 9 - - ) as legally described on Exhibit A and depicted on Exhibit B attached to this Agreement (the "Site"). B. Developer submitted an application to City for approval of (1) Residential Allocation Reservation (RAR) 2020-0001, (2) Design Review (DR) 2021-, (3) Development Agreement 2021- _, and (4) Subdivision (SUB) 2021- / Tentative Tract Map (TTM) No. to develop the Property as a mixed-use development with 137 residential units and 175,000 square feet of commercial uses ("Project"). C. In connection with development of the Project, Developer has agreed (i) to cause the construction by Developer of certain Improvements in accordance with the terms and conditions of this Agreement, and (ii) to cause said Improvements to be maintained until the City's acceptance of such completed improvements. The Improvements which shall be constructed by Developer pursuant to this Agreement are listed on Exhibit C to this Agreement. Each Improvement shall be described more specifically prior to construction by reference to the Approved Plans. E. Pursuant to this Agreement, Developer agrees to construct all of the Improvements in accordance with the Approved Plans (defined below), and with respect to such Work (defined below) to comply with all other requirements of this Agreement, for the benefit of the City, all as more particularly described herein. F. This Agreement is entered into by the City and Developer in order to, among other things; (i) establish certain obligations regarding the construction of the Improvements and by Developer in accordance with the Construction Schedule attached hereto, and (ii) establish the procedures under which the City shall partially reimburse Developer for its construction of the Improvements and accept the Improvements. NOW, THEREFORE, for and in consideration of the mutual premises and covenants contained herein, the Parties hereto agree as follows: 1 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 ARTICLE I DEFINITIONS Section 1.1 Definitions Unless the context otherwise requires, the following terms utilized in this Agreement shall have the meanings herein specified: "Acceptance Date" has the meaning set forth in Section 3.2.1(c). "Actual Cost" means the following costs of Developer with respect to an Improvement: (a) the Construction Cost with respect to such Improvement; (b) any fees to Governmental Authorities in order to obtain permits, licenses or other necessary governmental inspections, approvals and reviews for such Improvements; (c) the actual cost of professional services directly related to the construction of such Improvement, which services are provided pursuant to any Professional Services Agreement approved by the City pursuant to Section 2.3.3, including, without limitation, surveying, engineering, inspection, materials testing and similar professional services, and insurance required in connection with such services, including the costs incurred in establishing procedures for public bidding of Improvements and management and administration of public contracts entered into to construct the Improvements; (d) costs of obtaining and maintaining payment and performance bonds and insurance as required under this Agreement in connection with construction of such Improvement; and (e) costs of maintaining such Improvement between completion thereof and the Acceptance Date; provided, however, that each item of cost shall include only amounts actually paid by Developer to third parties and shall not include costs of Developer, overhead or other internal expenses of Developer or Developer. "Approved PCOW" has the meaning set forth in Section 2.4.1. "Approved Plans" has the meaning set forth in Section 2.1.4. "Assignment Agreement" means the agreement provided by Developer to the City pursuant to Section 2.6 under which Developer (a) transfers to the City all right, title and interest in a completed Improvement and (b) assigns to the City the warranties and guaranties provided by the Subcontractor under the Construction Contract for the completed Improvement. The Assignment Agreement shall be in the form of Exhibit E attached hereto. "Authorized Extension" has the meaning set forth in Section 2.2.3. "Business Day" means any day on which City Hall is open for business and shall specifically exclude Saturday, Sunday and legal holidays. "Cause" has the meaning set forth in Section 6.1.2. "City" means the City of Tustin, a general law city organized and existing under the laws of the State. 2 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 "City Acceptance" means the approval by the City Council of the Request for Acceptance of each Improvement pursuant to Section 3.2. "City Indemnitees" has the meaning set forth in Section 5.4.1. "City Representative" means the individual or individuals authorized by the City to act and coordinate with Developer on behalf of the City with respect to the matters described in Section 2.10 and elsewhere in this Agreement. "Development Agreement" means that certain Development Agreement entered into by and between the City and Developer with an effective date of , 2021, as the same may be amended from time to time. "Claim" or "Claims" means 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. "Complete," "Completed" and "Completion" with respect to each Improvement means that: (a) construction of the Improvement is complete in conformity with the Plans, this Agreement and the Construction Contracts, with all systems (including mechanical, electrical, structural, communication and other systems, as applicable) in good and proper operating condition and ready for use such that the City may utilize the Improvements for their intended purpose; (b) all Work required by this Agreement and the Construction Contracts with respect to such Improvement, including minor corrective work and minor deficient or incomplete work is complete, as evidenced by a certification by the project engineer(s) for the Improvement that such Improvement has been completed in a good and workmanlike manner and substantially in accordance with the Plans; (c) Developer shall have obtained fully executed conditional waiver and release forms from all Subcontractors and Sub -subcontractors performing Work on the Improvement in the form required by Civil Code Section 8136; and (d) any and all mechanic's liens that have been recorded or stop notices that have been delivered with respect to the Improvement have been paid, settled or otherwise extinguished, discharged, released, waived, or bonded (such bonding to be by the provision of bonds satisfying the provisions of Section 2.9). "Concurrence Letter" shall mean a letter in the form of Exhibit E attached hereto under which Developer notifies the City of a bid requiring approval by the City in connection with the construction of an Improvement. "Construction Contract" means the subcontract for construction of each Improvement awarded by Developer to each Subcontractor in accordance with the procedures and meeting the requirements set forth in Section 2.3 and the insurance requirements in Section 2.8. "Construction Cost" means the cost for constructing each Improvement, including without limitation design costs, labor, material and equipment costs, and costs of obtaining and maintaining 3 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 payment and performance bonds and insurance, established in the Construction Contract approved by the City for such Improvement, which amount shall only be modified by an Approved PCOW. "Construction Schedule" has the meaning set forth in Section 2.2.3. "Contract Price" has the meaning set forth in Section 2.3.6. "Developer" means Irvine Asset Group, LLC, a limited liability company organized and existing under the laws of the State of California, and its successors and assigns. "Developer Parties" has the meaning set forth in Section 2.3.6. "Developer Representative" means the individual or individuals authorized by Developer to act and coordinate with the City on behalf of Developer with respect to the matters described in Section 2.10 and elsewhere in this Agreement, including but not limited to execution of any Request for Acceptance signed by Developer and delivered to the City. Each Request for Acceptance shall contain an original signature of at least one Developer Representative. "Director" means the City's Director of Public Works and any designee of said City Director of Public Works. "Effective Date" means the first date set forth on page 1 of this Agreement. "Final Approved Cost" means the final Actual Cost of each Improvement as approved and determined by the Director in accordance with the procedures set forth in Section 3.2. "Final Acceptance" means that the conditions to approval by the City of the Request for Acceptance set forth in Section 3.2. 1. have been fully satisfied as to the Improvement that is the subject of such Request for Acceptance, including without limitation the approval of the Request for Acceptance by the City Council. "First Party" has the meaning set forth in Section 7.6. "Force Majeure Delay" means the occurrence of any of the following events when such event is beyond the control of the First Party and such Party's officers, directors, employees, contractors, consultants, agents and representatives and is not due to an act or omission of such Party or its officers, directors, employees, contractors, consultants, agents or representatives, which directly, materially and adversely affects (a) the ability of the First Party to meet its non -monetary obligations under this Agreement, , or (b) the ability of Developer to Complete the Work, and which events (or the effect of which events) reasonably could not have been avoided by due diligence and use of commercially 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; 4 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 (b) Unforeseeable Conditions. Reasonably unforeseeable physical condition of the Property including the presence of Hazardous Materials; (c) Casually. Fire, earthquake or other casualty, in each case only if causing material physical destruction or damage to the Work or the Site; (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; (e) Change of Law. The passage of a referendum or initiative that results in the inability of the First 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 of the DDA, as described in the DA, and which applies to the Site or the Project after taking into account the provisions of the DA; 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. Notwithstanding any other provision of this Agreement to the contrary, the term "Force Majeure Delay" shall be limited to the matters listed above and, further, specifically excludes the following matters which might otherwise be considered Force Majeure Delay: (1) 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 clause (d) of this definition. (2) Previously Proposed Changes in Governmental Requirements. Any change in Governmental Requirements which was proposed prior to the effective date of this Agreement. (3) Failure to Perform Obligations. Failure of Developer or any Successor Owner or other Person to perform any obligation to be performed by Developer or any Successor Owner or such other Person hereunder as the result of adverse changes in the financial condition of Developer or such Successor Owner or other Person, as applicable. (4) Failure to Provide Financial Security. Failure of Developer or any Successor Owner to provide financial security required by this Agreement when due or to submit evidence of financing of the Project or failure to perform any obligation to be performed by Developer or any Successor Owner or other Person hereunder as the result of adverse changes in market conditions. 5 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 (5) Failure to Submit Required Documentation. Failure of the First Party to submit documentation as and when required by this Agreement. (6) Failure to Submit Other Plans and Entitlements. Failure to submit other Entitlements required for construction of the Improvements and/or development of the Project on the Property when required pursuant to the Schedule of Performance. (7) Failure to Maintain Required Insurance. Failure to acquire, maintain and submit evidence of insurance policies as required by this Agreement. (8) Failure to Execute Documents. Failure of the First Party to execute documents. (9) All Other Matters. All other matters not caused by the Second Party and not specifically described in this definition. "General Improvement Plans" means the plans and specifications for each Improvement. "General Prevailing Wage Rates" means those rates determined by the Director of the Department of Industrial Relations of the State of California to be "prevailing wage" rates for each of the trades and workers to which prevailing wage rates apply, as such rates are set from time to time by such director for the region in which the City is located. "Governmental Authority" means any and all federal, State, county, municipal and local governmental and quasi -governmental bodies and authorities or departments (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 Site or other property upon which Developer is obligated to construct the Improvements. "Governmental Capacity" means the exercise by the City of its governmental authority with respect to any matter related to this Agreement, including without limitation, the regulation of the Site pursuant to Governmental Requirements, including enacting laws, inspecting structures, reviewing and issuing permits, and all other legislative, administrative or enforcement functions of each pursuant to federal, state or local law. "Governmental Requirement" means all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or otherwise affecting the Parties, the Site and/or other property upon which Developer is obligated to construct the Improvements or any component thereof, including without limitation building permits related to construction of such improvements. "Improvements" means the Improvements required to be constructed as specified on Exhibit C to this Agreement. "Notice of Completion" means a valid notice of completion as defined in California Civil Code Section 8180 et seq. 6 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 "Payment Bond(s)" means the bond or bonds issued by a surety authorized to do business in the State of California that guarantees the payment in full of all Subcontractors, Sub -subcontractors, laborers, material suppliers and other Persons performing Work. "Payment Request" has the meaning set forth in Section 4.1.1. "PCOW" has the meaning set forth in Section 2.4.1. "Performance Bond(s)" means the bond or bonds issued by a surety authorized to do business in the State of California and guaranteeing due and punctual performance and completion (within the respective times provided in the Construction Schedule) in accordance with the applicable Approved Plans that specifically describe the Work to be performed in sufficient detail for the issuance of such Performance Bond, and including all obligations of Subcontractors, Sub -subcontractors and other Persons with respect to the Work covered by such bond. "Person" means an individual, a corporation, a partnership, an association, a limited liability company, a joint stock company, a trust, any unincorporated organization or a government or political subdivision thereof. "Plans" means the plans and specifications for all of the Improvements comprised of the General Improvement Plans, which plans and specifications shall have been prepared and approved pursuant to Cartinn 7 1 "Professional" means a professional consultant to whom a Professional Services Agreement is awarded by Developer in accordance with the procedures set forth in Sections 2.3.2 and 2.3.3. "Professional Services Agreement" means the agreement for the provision of professional services related to the construction of each Improvement awarded by Developer to each Professional in accordance with the procedures and meeting the requirements set forth in Section 2.3 and the insurance requirements in Section 2.8. "Project" has the meaning set forth in Recital B. "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. "Request for Acceptance" has the meaning set forth in Section 3.2.1. "Second Party" has the meaning set forth in Section 7.6. "Site" has the meaning set forth in Recital A. "State" means the State of California. 7 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 "Subcontractor" means the winning bidder to whom the Construction Contract for construction of an Improvement is awarded by Developer in accordance with the procedures set forth in Sections 2.3.2 and 2.3.3. "Sub -subcontractor" means any entity retained to perform a portion of the Work that does not have a direct contractual relationship with Developer and shall include entities retained by a Subcontractor at any tier to perform a portion of the Work under the Construction Contract. "Work" means the construction, installation, maintenance and services required by the Plans, and includes without limitation all labor, services, equipment or materials provided or to be provided by Developer to fulfill Developer's obligations with respect to each Improvement constructed under this Agreement. ARTICLE 11 CONSTRUCTION OF IMPROVEMENTS Section 2.1 Preparation of Plans 2.1.1 Developer shall cause the General Improvement Plans for each Improvement to be prepared by licensed engineers in the State in a competent, professional and satisfactory manner in accordance with (a) all standards prevalent in the industry and (b) all applicable laws, ordinances, resolutions, statutes, rules and regulations of applicable Governmental Authorities in effect at the time the General Improvements Plans were prepared. The Developer shall provide the Director with three (3) paper copies and one (1) stamped and signed mylar original of the complete set of the General Improvement Plans for each Improvement, together with an electronic copy of the General Improvement Plans in PDF and Autocad format. Developer shall obtain the approval of the Director, in his sole discretion, of the General Improvement Plans prior to the commencement of construction. 2.1.2 Plans for each Improvement prepared in accordance with this Section 2.1, approved by the City are referred to herein as the "Approved Plans" for such Improvement. Section 2.2 Duty of Developer to Construct 2.2.1 General Contractor. Developer shall, or shall cause its General Contractor, to construct or cause the construction of each Improvement in accordance with the Approved Plans therefor, as applicable, and the Construction Schedule. Developer shall provide, or cause to be provided, all labor, materials, equipment, supplies, tools, permits, supervision, transportation, services, sales tax and all other things necessary to complete the Improvements in accordance with the Approved Plans therefor, as applicable, including all Work expressly specified therein and reasonably inferred from the Approved Plans. 2.2.2 Quality and Care. Developer shall perform all of its obligations hereunder, shall cause all Subcontractors to perform the Work, and shall conduct all operations with respect to the Work in a good, workmanlike and commercially reasonable manner, with the standard of diligence and care normally employed by duly qualified Persons utilizing commercially reasonable efforts in the performance of comparable work and in accordance with generally accepted practices in Orange County, 8 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 California, appropriate to the activities undertaken. Unless otherwise specified in the Approved Plans, all materials shall be new and of good quality and Developer shall, if requested by the City, furnish satisfactory evidence to the City as to the kind and quality of materials. The Work shall be performed in a manner that complies with the requirements of any manufacturers' warranties applicable to equipment or materials included in any of the Improvements. 2.2.3 Construction Schedule. The "Construction Schedule" is set forth on Exhibit H and sets forth the final day for commencement of construction and the final day for Completion of construction of each Improvement for which Developer is responsible.1 The commencement and Completion dates established for each Improvement for Work to be performed by or on behalf of Developer in the Construction Schedule shall be subject to extension only for (x) "Authorized Extensions" requested pursuant to a PCOW and approved by the Director in writing in accordance with the procedure set forth in Section 2.4.1 below, (y) a Force Majeure Delay or (z) any other reason permitted by this Agreement. 2.2.4 Repairs. In connection with Developer's or any Subcontractor's construction of the Improvements, Developer shall be responsible for any damage caused by Developer or any Subcontractor to any property of City, and shall, within ten (10) Business Days of receipt of substantiation from City of any such damage caused by Developer or any Subcontractor, meet and confer with City to confirm the extent of the damage for which such parties are responsible and to identify the parties responsible for making repairs. Thereafter, assuming such damage was caused by Developer or its Subcontractor, Developer shall either promptly cause the repair of such damage or after City's repair of any such damage, shall reimburse the City for the cost of the repairs paid for by City within thirty (30) days of receipt of City's invoice and backup information substantiating the cost of the repairs or such cost of repair may be retained by the City from any monies due to Developer under this Agreement. Section 2.3 Contract Requirements Developer shall comply with and, at such intervals and in such form as the City may reasonably require, provide proof to the City that the following requirements have been satisfied as to each of the Improvements. 2.3.1 Bidding Requirements. The Construction Contracts for the construction of each Improvement shall be awarded to the responsible bidder submitting the lowest responsive bid for such Improvement and utilizing the Construction Contract prepared by Developer. 2.3.2 Bid/RFP Process. Following completion of Approved Plans for each Improvement, Developer shall solicit bids for such construction of such Improvement (or in the case of services, proposals related to the construction of such Improvement) in a timely manner to ensure compliance with the commencement date for such Improvement set forth in Construction Schedule. The bid and award procedures to be followed by Developer in connection with the construction of each Improvement are described on Exhibit 0 attached hereto. Developer may solicit bids either for an individual Improvement or for both Improvements at one time. If the Work is bid for both Improvements 1 Exhibit H must be submitted and approved by the Director prior to issuance of any permit, excluding the demolition permit. 9 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 at one time, Developer will require all bidders to specify the cost of each Improvement separately, and shall require in any Construction Contract awarded to the successful bidder that all progress payment and final payment applications submitted by the Subcontractor break out separately the cost of constructing each Improvement. 2.3.3 Award of Contract or Professional Services Agreement. Promptly after receipt and opening of all bids, Developer will submit to the City a spreadsheet showing all bids received. The City shall have a period of five (5) Business Days from receipt of the bid results for review and approval of same. After receipt of the City's approval of the responsible bidder submitting the lowest responsive, qualified bid for the construction of the Improvement (which approval shall be confirmed in a Concurrence Letter in the form of Exhibit E attached hereto), Developer shall award the Construction Contract for the construction of such Improvement or Improvements to that qualified contractor. The construction contract for each Improvement awarded to the winning bidder is hereinafter referred to as a "Construction Contract" and the winning bidder for such Improvement is referred to as the "Subcontractor." Likewise, as to all professional services agreements required in connection with the Construction of each Improvement, Developer shall provide the City with a spreadsheet showing all proposals received, after which the City shall have a period of five (5) Business Days from receipt of the spreadsheet to review and approve of same. After receipt of City's approval of the professional consultant with the lowest responsive proposal to perform the services (which approval shall be confirmed in a Concurrence Letter in the form of Exhibit E attached hereto), Developer shall enter into a professional services agreement with the approved consultant. The professional services agreement so awarded is hereinafter referred to as the "Professional Services Agreement" and the winning bidder for such services is referred to as the "Professional." Promptly after the award of each such Construction Contract or Professional Services Agreement, Developer shall furnish the City with a copy of (a) the fully executed Construction Contract documents and one copy of the bid package received from the Subcontractor to whom the Construction Contract was awarded, and/or (b) with respect to professional services, the fully executed Professional Services Agreement and one copy of the proposal received from the Professional to whom the Professional Services Agreement was awarded. 2.3.4 Public Works Contract Requirements, Prevailing Wages. The specifications and bid and contract documents shall require that Developer and the Subcontractor shall comply and shall cause its Sub -subcontractors to comply with all applicable provisions of the California Labor Code, the California Government Code and the California Public Contract Code relating to public works projects of cities. In addition, Developer shall cause each Subcontractor and require in its Construction Contract that each Subcontractor shall cause its Sub -subcontractors engaged to perform Work on an Improvement (a) to pay at least General Prevailing Wage Rates to all workers employed in the performance of the Construction Contract or any subcontract, (b) to post a copy of the General Prevailing Wage Rates at the job -site in a conspicuous place available to all employees and applicants for employment (c) to otherwise comply with applicable laws relating to public works projects of cities, and (d) if requested by Developer or the City, to provide certified copies of payrolls or affidavits confirming that each Subcontractor and its Sub -subcontractors have paid prevailing wages in connection with the construction of the Improvements. Developer shall require in its Construction Contract that Subcontractor comply with all applicable laws for public works projects, including without limitation California Labor Code Sections 1771, 1774. 1775, 1776, 1777.5, 1813 and 1815, and shall attach copies 10 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 of such Labor Code provisions in an exhibit attached to the Construction Contract used with each Subcontractor. 2.3.5 Compliance With Law. In connection with construction of each Improvement, Developer shall, and shall require each Subcontractor to, comply with all applicable laws, ordinances and regulations and with the building codes of applicable Governmental Authorities. Neither Developer nor any Subcontractor or Sub -subcontractor shall discriminate in its employment practices against any employee, or applicant for employment, because of such individual's race, religion, national origin, ancestry, sex, sexual orientation, age, physical handicap, marital status or medical condition. 2.3.6 Contract Requirements, City Rights. The Construction Contract used by Developer shall include, among other provisions, the terms and conditions set forth on Exhibit J attached hereto and each Construction Contract shall not include any provisions that diminish the rights of the City or the obligations of Subcontractor or any Sub -subcontractors thereunder. The price for the Work set forth in each Construction Contract ("Contract Price") shall be established as a not -to -exceed price as determined in accordance with the procedures set forth in Exhibit 0 . Notwithstanding any other provision of this Agreement, Developer, and not the City, shall be responsible for (a) all costs under the Construction Contracts in excess of the established Contract Price as modified only by an Approved PCOW, and (b) any loss incurred by the City as a result of the breach of a Construction Contract by a Subcontractor or a defect in the Work or faulty workmanship (unless covered by Subcontractor's warranty assigned to the City on the Acceptance Date for the applicable Improvement). Nothing contained in this Agreement shall create any contractual relationship between the City and any Subcontractor, Sub -subcontractor, vendor, material supplier, laborer or any other Person retained by Developer or retained by any of the foregoing, at any tier, or their respective officers, employees or agents (collectively, the "Developer Parties"). 2.3.7 Subcontractor Insurance. Developer shall require the Subcontractor for each Improvement and each of its Sub -subcontractors engaged to perform Work on an Improvement to provide proof of insurance coverage satisfying the requirements of Section 2.8 throughout the term of the construction of such Improvement. 2.3.8 Compliance with City Requirements. Developer shall comply, and shall cause each Subcontractor and each of its Sub -subcontractors, vendors, material suppliers, equipment operators and owner operators, to the extent each such Person is engaged to perform Work, to comply with such other requirements relating to the Work as the City may impose by written notification delivered to Developer, to the extent legally required as a result of changes in applicable federal, State or City laws. Section 2.4 Changes 2.4.1 Preliminary Change of Work Request. Developer shall provide the City with a preliminary change of work request in the form of Exhibit D (each, a "PCOW") within ten (10) Business Days of initiation of changed conditions to the Construction Contract or in connection with any request for an extension of time (i.e., for an Authorized Extension), which PCOW shall be subject to City approval in its sole discretion. The Director shall provide written approval or disapproval of any such PCOW within ten (10) Business Days of the Director's receipt of same from Developer. Each 11 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 PCOW approved by the City in writing is referred to herein as an "Approved PCOW." If the Director fails to respond within such ten (10) Business Day period, such failure to respond shall be deemed to constitute disapproval of the PCOW. With respect to each and every Improvement, there shall be no change to the Construction Schedule, the Plans, the Approved Plans, the scope of the Work, the Actual Cost of an Improvement or amount due to Developer and no extension of time unless such change in time, Plans, Approved Plans, scope of the Work or cost is set forth on an Approved PCOW for such Improvement. A design revision or construction change order or increase in the quantity of any unit price item over the bid quantity involving the Improvements shall be considered null and void for purposes of reimbursement hereunder unless approved in writing by both the Director and the Developer Representative. 2.4.2 Changes to Approved Plans. City and Developer agree that if, during design or construction, the City requests or initiates any revision to the Approved Plans following approval by the City and the other required Governmental Authorities of the Plans, then the cost of any such revision to the Approved Plans shall be borne by the City. All other requested revisions to the Approved Plans by any Governmental Authority shall be borne by City if and to the extent that City has approved such revisions to the Plans pursuant to this Agreement. In such event, Developer shall promptly cause the proposed design revisions to be made to the Approved Plans and the Parties shall process a PCOW to address the impacts of any such change in the Approved Plans on the cost of Work and the Construction Schedule. Developer shall not modify the Approved Plans without first obtaining the City's prior approval of such modification. In the event of any changes to the Approved Plans, Developer shall provide a copy of the proposed change to the Approved Plans to City for review and approval prior to initiating any Work related to such change. 2.4.3 Constructability Review. Developer represents and warrants that it has visited and examined the land upon which the Work will be performed; that it has examined all physical, legal and other conditions affecting the Work and that it has become sufficiently familiar therewith to perform the Work. In addition, Developer has reviewed the Plans and shall prior to commencement of construction of any Improvement, review the Approved Plans for such Improvement for the constructability thereof from a cost and schedule perspective. Developer shall rely on its own design professionals to ensure that the Plans, including without limitation, the Approved Plans for each and every Improvement conform to Site conditions and engineering practices consistent with the standard of care followed by licensed engineers in the design of similar improvements in Orange County, California. Section 2.5 Bonding Requirements 2.5.1 Provision of Bonds, Terms. Prior to the commencement of construction of each Improvement, Developer shall secure and provide to the City a Payment Bond for such Improvement to ensure payment of all Subcontractors, Sub -subcontractors, laborers and material suppliers with respect to such Improvement. In addition, Developer shall obtain from each Subcontractor to whom a Construction Contract is awarded for each Improvement, a Performance Bond to ensure completion of the performance of the Work on each such Improvement. The Payment Bond for each Improvement that is delivered to the City by Developer or any Subcontractor shall meet the requirements above and shall be substantially in the form of Exhibit O to this Agreement unless otherwise agreed by the City in its sole discretion. The Performance Bond for each Improvement that is delivered to the City 12 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 by each Subcontractor shall meet the requirements above and be substantially in the form of Exhibit P to this Agreement unless otherwise agreed by the City in its sole discretion. 2.5.2 Additional Requirements. Each bond for an Improvement shall be (a) in an amount that is at least equal to 100% of the amount of the bid approved by the City pursuant to Section 2.3.3, or (b) if bids have not been received, in an amount equal to the amount of the engineer's estimate for the Improvement being bonded, including reasonable contingency. Each bond for an Improvement provided shall, unless otherwise agreed by the City in its sole discretion, be issued by a surety company duly authorized to issue such bonds in the State of California and rated "A" or better by A.M. Best and name the City as a covered obligee thereunder. Without the prior written approval of the City in its sole discretion each Payment Bond and Performance Bond delivered to the City with respect to the Improvements shall not be terminated or modified in any respect prior to the Acceptance Date of the Improvement for which it was provided. 2.5.3 Increase in Security. To the extent that the cost of any Improvement is determined at any time by the Director to have increased such that the Payment Bond or any Performance Bond provided pursuant to this Section is less than the then -estimated cost to complete such Improvement, the City may, in its sole discretion, require Developer to (a) post a replacement Payment Bond to secure such estimated additional costs, or (b) obtain from its Subcontractor a replacement Performance Bond to secure such estimated additional costs. 2.5.4 Bond Costs. Actual Costs for each Improvement shall include the cost of the Payment Bond procured by Developer for such Improvement and the cost of Performance Bonds procured by each Subcontractors for each Improvement and shall not include the cost of any additional performance or payment bonds that may be required by Developer, unless otherwise agreed by the City in its sole discretion. 2.5.5 Release of Bonds. Any Payment and Performance Bonds for an Improvement shall be released (or reduced in amount) only as provided in Section 3.3 below. Section 2.6 Inspection; Completion of Construction 2.6.1 Inspection. The City shall be entitled to inspect the Improvements as it deems necessary to assure compliance with the Approved Plans, in each case including shop drawing review and material inspection thereof. The City shall have access to all phases of the Work for the Improvements for the purpose of such inspection. The City's personnel shall have access to the Site at all reasonable times for the purpose of accomplishing such inspections. The City will promptly notify Developer of any portion of the Work that appears not to conform to the Approved Plans for the relevant Improvement. In addition, within five (5) Business Days following receipt of an inspection request from Developer, the City shall have its inspectors inspect the Work to confirm that such Work is accomplished in accordance with the Approved Plans for the relevant Improvement. The determination of the City as to conformity of each Improvement on the Site with the Approved Plans for each such Improvement shall be made in the City's sole and absolute discretion. 2.6.2 Notice of Completion. Within fifteen (15) calendar days after the Acceptance Date of each Improvement pursuant to the procedures set forth in Section 3.2 below, 13 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Developer shall file with the Orange County Recorder a Notice of Completion, in form acceptable to the Director, pursuant to the provisions of Section 8180 et seq. of the California Civil Code. Section 2.7 Maintenance of Improvements; Transfer of Interest and Warranties Prior to the Acceptance Date of each Improvement, Developer shall be responsible for maintaining (or causing the maintenance of) such Improvement in good and proper operating condition, and shall perform (or cause to be performed) such maintenance on the Improvement as the Director reasonably determines to be necessary. At such time as Developer delivers the Request for Acceptance to the Director, Developer shall also deliver three duplicate originals of an Assignment Agreement substantially in the form of Exhibit F, executed by Developer and the Subcontractor that constructed the Improvement, under which Developer shall assign to the City all of Developer's right, title and interest in the completed Improvement and all warranties, express or implied, with respect to the Improvement including without limitation those provided pursuant to the Construction Contracts(s) and subcontracts for the Improvement, effective as of the Acceptance Date, all in accordance with the procedures set forth in Section 3.2.1. The warranties under each Construction Contract shall be consistent with the terms set forth on Exhibit J unless otherwise agreed by the City in its sole discretion and shall be in effect for a term of one year from the Acceptance Date of each Improvement accepted by the City. Developer shall have no maintenance responsibilities with respect to such Completed Improvement after the Acceptance Date. Section 2.8 Insurance Requirements 2.8.1 Insurance Types and Levels of Coverage. Developer shall either obtain and maintain for the term of this Agreement or shall cause each Subcontractor who constructs an Improvement or any other improvements on the portion of the Site owned by the City to maintain from the effective date of the Construction Contract until the Acceptance Date of the Improvement constructed by such Subcontractor, the insurance specified on Exhibit K in accordance with all requirements specified on said Exhibit. Likewise, each Professional shall be required to maintain from the effective date of the Professional Services Agreement until the Acceptance Date of the applicable Improvement for which services were performed, the insurance specified on Exhibit K in accordance with all requirements specified in said Exhibit. Developer shall not reduce or eliminate the insurance coverages required by Exhibit K and Exhibit M of this Agreement, including without limitation, by reducing the amounts of coverage, increasing the permitted self-insured retention or deductibles or reducing any requirements relating to the insurance carriers, ratings or types of insurance required without the prior written approval of the City, in its sole discretion. 2.8.2 Sub -subcontractor Insurance Requirements. Developer shall include in its Construction Contract with each Subcontractor the requirement that, in addition to the insurance that Subcontractor must maintain, Subcontractor will not permit any Sub -subcontractors or other Persons to work on the Improvement or on the portions of the Site owned by the City until each such Sub - subcontractor or other Person has complied with, the general liability, automobile liability, and workers compensation insurance requirements specified in Section 5 of Exhibit K, including without limitation, the requirement that each Sub -subcontractor or other Person name the City and the other parties specified in said Exhibit as additional insureds on its general liability insurance policy. Likewise, Developer shall 14 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 require in its Professional Services Agreement with each Professional that provides services in connection with an Improvement the requirement that, in addition to the insurance the Professional must maintain, Professional will not permit any subconsultants or other Persons who provide any portion of such services to commence such services until each subconsultant or other Person obtains and maintains the levels of insurance in accordance with the requirements set forth in Exhibit L. 2.8.3 City Right to Procure Insurance. If Developer fails to cause each Subcontractor to maintain any insurance required hereby, the City may, but shall not be obligated to, procure such insurance and recover the amount of the premiums therefor from Developer or retain such amount from any monies due to Developer under this Agreement. The failure of the City to procure any such insurance shall in no way relieve Developer of any of its obligations under this Agreement. 2.8.4 No Limitation. Developer's or any Subcontractor's maintenance of insurance as required by this Agreement shall not be construed to limit the liability of Developer or the Subcontractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or equity. Section 2.9 Liens and Stop Notices 2.9.1 No Liens. Developer shall keep the Site and all other property owned by the City free from any and all liens relating to the Work. Developer shall obtain conditional and unconditional lien releases in accordance with applicable provisions of the California Civil Code from all Subcontractor, Sub -subcontractor, vendors, material supplier and other Persons performing any portion of the Work in accordance with the procedures specified on Exhibit M attached hereto. Developer shall promptly notify the City in the event any Subcontractor, Sub -subcontractor, vendor or material supplier or other Person refuses to deliver any such conditional and/or unconditional waiver and lien release. 2.9.2 Removal of Liens. Developer shall, within thirty (30) calendar days following receipt of notice thereof: (a) cause to be removed or bonded against (with bonds satisfying California statutory requirements), any and all mechanic's liens, stop notices and bonded stop notices that are recorded or served by Developer, any Subcontractors or other Developer Parties in connection with the construction of any Improvement, the Work or other work performed by or on behalf of Developer or the Developer Parties, and (b) provide to the Director written evidence acceptable to the Director in his or her sole discretion of the withdrawal of any lien or lis pendens and/or notice of action that has been recorded against the Site as well as against any other property owned by the City in connection with such mechanic's lien claim. 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 bonded stop notices; subject, however, to the further requirement that neither the Improvement nor the Site nor any part or interest in either thereof would be in any danger of being sold, forfeited, attached or lost pending the outcome of such proceedings. If any such contest is finally resolved against Developer, Developer shall promptly pay the amount required to be paid, together with all interest and penalties accrued thereon. 2.9.3 Stop Notices. If a stop notice is served upon the City, the City may, until the discharge or bonding thereof, withhold from the moneys under its control so much of said moneys 15 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 due or to become due to Developer under this Agreement as shall be equal to one hundred twenty-five percent (125%) of the amount stated in such stop notice. Any bond filed pursuant to this Section 2.9.3 shall comply with the provisions of California Civil Code Section 9364 and the requirements of Section 2.9.4. 2.9.4 Bond Requirements. Any bond filed with the City to satisfy the requirements of this Section 2.9 shall be issued by a corporate surety authorized to issue security bonds in the State of California in an amount equal to one hundred twenty-five percent (125%) of the claim stated in the mechanics' lien, material supplier's lien, stop notice or notice to withhold. Section 2.10 Improvement Proiect Coordination With respect to communications regarding PCOWs, bonding, payment requests and all other matters relating to construction of each Improvement, the City and Developer designate the following individuals as their respective Project Coordinators: (a) City Representative. Ken Nishikawa, telephone: (714) 573-3389, e-mail: knishikawa@tustinca.org, shall be the City's representative and contact person. (b) Developer Representative. Craig Swanson, telephone: (213) 507- 5800, e-mail: cswanson@irvineassetgroup.com shall be Developer's representative and contact person. The City and Developer may, at any time, change their respective representative by providing written notice to the other Party. Section 2.11 Warranties and Guarantees Developer shall include in each Construction Contract a written guarantee for each Improvement against defects in workmanship and materials for the periods specified in Section 2.7 in the form and substance of the guarantee and warranty provisions set forth in Exhibit J or as otherwise approved by the City in its sole discretion. Developer shall not reduce or modify the guarantee or warranty coverage provided by such provisions or the time period in which such guarantees or warranties remain in effect without the prior written approval of the Director. The warranties shall remain in effect for a period of one (1) year commencing from the date of Final Acceptance of the Work by the City (or, in the case of landscape improvements, one hundred and twenty (120) days from Completion thereof). Upon Completion of each Improvement, Developer shall provide all warranty paperwork, if any, to the City. No Final Acceptance by the City shall operate as a waiver or release with respect to any warranties applicable to the Work or the Improvements or any rights or remedies pertaining thereto. Section 2.12 Disclaimer of Responsibility With respect to the General Improvement Plans and any Approved Plans with respect thereto, the City hereby disclaims all responsibility therefor, including, without limitation, any duty to Developer or any other Person to review or inspect any matter in connection with the design, development or construction of such Work whether regarding the quality, adequacy or suitability of improvement plans, any labor, service, equipment or material furnished for development of the Work, 16 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 any Person furnishing same, or otherwise. The review by the City 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. ARTICLE III ACQUISITION OF IMPROVEMENTS Section 3.1 Transfer of Ownership of Improvements to City Upon Completion of each Improvement, Developer shall transfer such Improvement to the City in accordance with the terms and conditions of this Article III. To the extent that any Improvements to be transferred are located on land owned by Developer, Developer shall coordinate with City so that easements for any such Improvements located on Developer -owned land are conveyed to the City on the Acceptance Date of each Improvement. Ownership of each Improvement shall be transferred to the City as of the "Acceptance Date" of such Improvement, which shall be memorialized in the Assignment Agreement provided by Developer to the City in accordance with the requirements of Section 2.7 and Section 3.2.1. Developer shall be responsible for maintenance of each Improvement in a good and operable condition until the Acceptance Date and shall deliver the Improvements to the City in good and operable condition. Notwithstanding the fact that some or all of the Improvements may be constructed in dedicated street rights-of-way or on property that is not owned by Developer, each Improvement shall be and remain the property of Developer until title thereto or ownership thereof is conveyed as provided herein. Section 3.2 City Acceptance Process 3.2.1 Request for Acceptance. Pursuant to Section 2.6, at such time as the City's inspectors are satisfied that an Improvement has been completed in accordance with the Approved Plans therefor, Developer shall provide written notice to the Director in the form of a "Request for Acceptance" substantially in the form of Exhibit G. in accordance with the following process: (a) Information Provided with Request. Developer shall deliver to the Director: (i) a complete fully executed Request for Acceptance of such Improvement, together with all attachments referenced therein to be included with such request; (ii) as -built drawings and one (1) copy of the Subcontractor's redlined set of "record" drawings and one (1) copy of the compaction reports and certificate for the Improvement trench zones, survey notes and cut sheets; (iii) lien releases in accordance with the procedures set forth on Exhibits G and N attached hereto; (iv) a final accounting of the Actual Cost incurred in constructing the Improvement, together with supporting receipts and documentation; and (vi) three duplicate originals of the Assignment Agreement for the Improvement signed by Developer and the Subcontractor, with the effective date left blank in Section 2 of said Assignment Agreement for completion as provided in clause (c) below. (b) Review of Information by Director; Final Approved Cost. Upon receipt of a complete and fully executed Request for Acceptance (and accompanying documentation and 17 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 such other documentation related to the Work as the Director may reasonably request) for an Improvement, the Director, acting in a Governmental Capacity, shall conduct a final review of the Request for Acceptance and accompanying documentation specified in subsection (a) above and this subsection (b) in order to: (i) confirm that such Improvement was constructed in accordance with the Approved Plans and has been Completed; (ii) examine the final accounting provided by Developer and verify and approve the Actual Cost and the Final Approved Cost of such Improvement; (iii) confirm that all information provided with the Request for Acceptance is accurate; (iv) confirm that any mechanic's and material supplier's liens filed in connection with construction of the Improvement have been removed and the statutory time periods for filing of any such liens has expired; and v) confirm that the lien releases as described in Sections 2.9.1 and 3.2.1 a have been delivered by Developer. Developer agrees to cooperate with the Director in conducting each such review and to provide the Director with such additional information and documentation as is reasonably necessary for the Director to conclude each such review. The City agrees to cause the Director to commence such review within ten (10) Business Days of receipt of such Request for Acceptance and to thereafter complete such review without unreasonable delay (and in any event, within thirty (30) days of the Director's receipt of a fully complete and executed the Request for Acceptance together with all attachments referenced therein to be included with such request). If the Director determines that the Actual Cost specified in such Request for Acceptance exceeds Developer's actual costs to construct the Improvement as verified by the supporting information provided by Developer or contains any amounts not included in the definition of Actual Cost contained in Section 1.1 (e.g., the Construction Cost of the Improvement exceeds the Contract Price for the Improvement as modified by any cost changes as set forth in any Approved PCOW), then Developer shall either (A) meet with the Director to provide information why Developer believes the Director's determination is in error and resolve such discrepancy to the Director's satisfaction, in the Director's reasonable sole discretion or (B) resubmit such Request for Acceptance with the Actual Cost specified therein modified so as to take into account such determination by the Director. The final Actual Cost approved by the Director for such Improvement ("Final Approved Cost") shall be the Actual Cost for that Improvement used in connection with any payments made by City and for all other purposes set forth in Article IV below. The Director shall notify Developer of the Final Approved Cost of the Improvement in the completed Request for Acceptance returned to Developer. (c) Final Acceptance by Ci . ; Acceptance Date. Upon (i) completion of the Improvements and (ii) approval by the City Council of the Request for Acceptance with respect to each Improvement, the Director shall execute and issue the final acceptance of each Completed Improvement. The "Acceptance Date" of each Improvement shall be the date when all of the following have been deemed complete to the satisfaction of the Director acting in a Governmental Capacity: (i) the Director has completed its review of the Request for Acceptance and accompanying documentation; (ii) the Director has confirmed that all information provided with the Request for Acceptance is accurate and that the Improvement has been constructed in accordance with the Approved Plans therefor and is Completed; (iii) the Director has verified the final accounting provided by Developer and provided the Final Approved Cost for the Improvement to Developer; (iv) any mechanic's and material supplier's liens filed in connection with construction of the Improvement have been removed and the statutory time periods for filing of any such liens has expired; (v) the Director has confirmed that the lien releases as described in Section 2.9.1 and 3.2.1a have been delivered by Developer; (vi) the City Council has approved the Request for Acceptance with respect to each Improvement, and (vii) the Director has 18 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 approved the Assignment Agreement for the completed Improvement. Upon the Acceptance Date with respect to each Improvement, the Director shall (A) sign the Request for Acceptance and insert the Final Approved Cost and the Acceptance Date of the Improvement in the "Approval by City" section of the signed Request, (B) sign the three duplicate originals of the Assignment Agreement and insert the Acceptance Date in Section 2 thereof, and (C) return the fully completed and signed Request for Acceptance and two fully completed and signed duplicate originals of the Assignment Agreement to Developer. (d) Developer Actions Upon Receipt of Approved Request. Upon Developer's receipt of the documentation described in clause (c) above from the City, Developer shall, within ten (10) days of receipt of such documents, return one fully signed duplicate original of the Assignment Agreement to the Subcontractor so that the Subcontractor is aware that its warranty obligations under the Construction Contract for the Improvement have been transferred to the City as of the Acceptance Date. 3.2.2 Improvement Modifications. Developer shall not make modifications in the composition of any Improvement without the City's prior written approval. Section 3.3 Release of Bonds Notwithstanding any other provision of this Agreement, any Performance Bonds and Payment Bonds provided to the City as security under this Agreement for the construction of any Improvement will be promptly released upon the Acceptance Date of each Improvement, provided that the City shall retain ten percent (10%) of the Performance Bond (or accept, in its sole discretion, a separate replacement bond to cover the warranty) to guarantee such Improvement will be free from defects due to faulty workmanship or materials for the period of any warranty assigned to the City pursuant to an Assignment Agreement as described in Section 3.2.1. ARTICLE IV PAYMENTS, REIMBURSEMENT PROCEDURES AND RECONCILIATION Section 4.1 Progress Payments for Improvements 4. 1.1 Progress Pam. On a monthly basis during the construction of each Improvement, Developer shall submit a request for payment (each, a "Payment Request") to the City in the form of Exhibit I and the "Invoice and Payment Summary" attached as Exhibit I-1, which Payment Request certifies the amount of the Actual Costs incurred in connection with construction of such Improvement during the preceding month (which shall be net of a ten percent (10%) retention of the estimated value of the Work performed under each Construction Contract), which retention shall be held as retention until Final Acceptance as security for the fulfillment of the obligations of each Subcontractor who performs Work on an Improvement), together with such supporting information in accordance with the "Payment Request Submittal Procedures" attached as Exhibit N. Within thirty (30) days of City's receipt of each fully completed and certified Payment Request and supporting information, City shall reimburse Developer for the Actual Cost shown on the Payment Request and approved by the City. Each Payment Request shall include Developer's certification of the accuracy of the information set forth in the Payment Request. 19 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 4.1.2 Final Accounting and Payment for Improvements. Promptly after Completion of each Improvement, Developer shall complete a Request for City Acceptance and submit such request, along with a final Payment Request and a final accounting of the Actual Costs incurred in Completing such Improvement and all other supporting documentation, to the City in accordance with the procedures set forth in Section 3.2.1. In the final accounting of the Actual Costs, Developer shall include the costs incurred (or reasonably anticipated to be incurred) in connection with maintenance of such Improvement between the date of Completion of same and the Acceptance Date. Within thirty (30) days of the Acceptance Date of each completed Improvement, the City shall pay Developer the difference between (a) the Final Approved Cost of such Improvement, and (b) the total progress payments for such Improvement previously paid by the City to Developer. If the Final Approved Cost for such Improvement shall for any reason be less than the total progress payments previously paid to Developer by the City for such Improvement, Developer shall promptly and in all events, within thirty (30) days of the determination of the Final Approved Cost for such Improvement, reimburse the City for any such difference. Section 4.2 Payee. All payments by the City to Developer pursuant to this Agreement shall be made payable to "Irvine Asset Group LLC" and sent 4000 MacArthur Blvd., Suite 600, Newport Beach, CA 92660 Attention: Craig Swanson. Section 4.3 Survival of Provisions. The provisions of this Article IV shall survive the termination of this Agreement. ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS; INDENINIFICATION Section 5.1 Representation and Warranties of Developer Developer makes the following representations and warranties for the benefit of the City: (a) Organization. That it is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California, is authorized to conduct business and is in good standing under the laws of the State, and has the power and authority to own its properties and assets and to carry on its business as now being conducted and as now contemplated. (b) Authority. That it has the power and authority to enter into this Agreement, and has taken all actions necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly and validly executed and delivered on behalf of Developer. (c) Binding Obligation. That this Agreement is a valid and binding obligation of Developer and is enforceable against Developer in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general equity principles. 20 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 (d) No Legal Impediment. That it is not aware of any legal impediment that would make infeasible Developer's proceeding with and completing the construction of the Improvements. Section 5.2 Covenants of Developer Developer makes the following covenants for the benefit of the City: (a) Completion of Improvements. Developer covenants that it will use its reasonable and diligent efforts to do all things that may be lawfully required of it in order to cause the Improvements to be completed in accordance with this Agreement. (b) Compliance with Laws. Developer covenants that in carrying out its obligations under this Agreement and in constructing the Improvements it shall and shall cause its Subcontractors and all Sub -subcontractors to comply with all applicable Governmental Requirements. During the period while the Improvements are owned by Developer or required to be maintained by Developer pursuant to this Agreement, Developer will not commit, suffer or permit any of its agents, employees or Subcontractors to commit any act to be done in, upon or to the Improvements in violation of any applicable Governmental Requirement. (c) Request for Acceptance. Developer covenants that (i) it will not request payment from the City under this Agreement for the acquisition of any materials, goods or services that are not part of an Improvement, and (ii) it will diligently follow all procedures set forth in this Agreement with respect to each Request for Acceptance for a Completed Improvement. (d) Financial Records. Until the Acceptance Date of each Improvement, Developer covenants to maintain proper books of record and account for the Improvements and all costs related thereto for which Developer requests reimbursement from the City. Developer covenants that such records will be available for inspection by the City within a reasonable time after the City submits a written request to Developer requesting that such records be made available for inspection. (e) Permits. Developer covenants that it will obtain all governmental or other permits required to proceed with the construction of the Improvements and that it will pay all fees relating thereto that are required to be paid, which permit fees for Improvements shall be included in the Actual Cost of each Improvement for which the City is responsible to reimburse Developer. Section 5.3 Representations and Warranties of the City The City represents and warrants for the benefit of Developer that the City has the power and authority to enter into this Agreement, and has taken all action necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly and validly executed and delivered on behalf of the City and that it is a valid and binding obligation of the City and is enforceable against the City in accordance with its terms. 21 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Section 5.4 Indemnification by Developer 5.4.1 Indemnification and Other Obligations. Developer shall protect, indemnify, defend (with counsel reasonably acceptable to the City) and hold the City and its elected and appointed officials, employees, consultants, contractors and agents ("City Indemnitees") harmless from and against any and all Claims, whether incurred by or made against or recovered or obtained from the City or any of the City Indemnitees or any combination thereof, that arise as a result of or by reason of or as a consequence of: (a) the construction, installation or maintenance of the Work or any portion thereof by Developer or any of the Developer Parties; (b) the terms of any Construction Agreement or subcontract; (c) the untruth or inaccuracy of any representation or warranty made by Developer in this Agreement, in any Request for Acceptance or in any certifications delivered by Developer pursuant thereto; (d) any act or omission of Developer or the Developer Parties in connection with the construction, installation or maintenance of the Work or any portion thereof, including without limitation noncompliance with any covenants made by Developer in this Agreement (e.g., failure to comply with any prevailing wage or other provision of Sections 2.2 or 2.3); and (e) any breach by Developer of any of its representations, warranties, covenants or obligations set forth in this Agreement. If Developer fails to defend any Claim pursuant to its obligations hereunder, the City shall have the right, but not the obligation, to defend the same and charge all of the direct or incidental costs of such defense, including any third party fees or costs paid for by the City (including but not limited to bills from the City's contract City Attorney related to this Agreement), to and recover the same from Developer. 5.4.2 Limitations on Section 5.4.1 Obligations. Notwithstanding the foregoing, Developer shall not have any obligations under Section 5.4.1 to the extent that any Claim arises as a result of or by reason of or as a consequence of: (a) to the extent required by California Civil Code Section 2782, the active negligence or willful misconduct of any of the City Indemnitees; or (b) any breach by the City of any of its representations, warranties, covenants or obligations set forth in this Agreement. 5.4.3 Survival. The provisions of this Section 5.4 shall survive the termination of this Agreement for one (1) year after the expiration of each Improvement's warranty period, as provided in Section 2.11 of this Agreement. ARTICLE VI REMEDIES; TERMINATION; DAMAGES Section 6.1 Termination for Cause by City 6. 1.1 Grounds for Termination for Cause by Cily. The following events shall be deemed "Cause" for termination and shall constitute grounds for the City, at its option, to terminate this Agreement for Cause: (a) Voluntary Bankruptcy Filing. Developer shall voluntarily file for reorganization or other relief under any Federal or State bankruptcy or insolvency law; 22 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 (b) Involuntary Bankruptcy Filing. Developer shall have any involuntary bankruptcy or insolvency action filed against it, or shall suffer a trustee in bankruptcy or insolvency or receiver to take possession of the assets of Developer; (c) Abandonment of Construction. Except to the extent that Developer's obligation to construct the Improvements is suspended by an Authorized Extension, Developer shall abandon or substantially suspend construction of the Improvements for a period of one hundred and eighty (180) consecutive calendar days. (d) Material Breach of Agreement. Developer shall breach any material covenant or default in the performance of any material obligation required of it under this Agreement, or any representation or warranty of Developer set forth herein or in any certifications delivered by Developer hereunder shall prove to have been false or misleading in any material respect when made or deemed made; (e) Failure to Commence Construction or Diligently Prosecute to Completion. Developer shall fail to commence construction of each Improvement in accordance with the Construction Schedule attached as Exhibit H, or, subject to a Force Majeure event or an Authorized Extension, Developer shall fail to diligently prosecute the construction of each Improvement to completion in accordance with the Construction Schedule and the Approved Plans 2; (f) Default or Failure to Pay under Construction Contracts. Developer shall default in its obligations under the Construction Contracts or shall fail to pay Subcontractors for materials and labor in a timely manner in accordance with the Construction Contracts; (g) Assignment Without Consent. Developer shall transfer any of its rights or obligations under this Agreement, without the prior written consent of the City, which consent may be withheld at the City's sole discretion; or (h) Failure to Complete. Developer shall fail to Complete the Improvements by the time set forth in the Construction Schedule as the same may be extended for the reasons provided in subsection (e) above. 6.1.2 Termination for Cause, Cure Rights. If the City intends to terminate this Agreement as a result of the occurrence of any event listed in Section 6.1.1 (i.e., for "Cause"), the City shall first notify Developer in writing of such intention and of the grounds for such termination. With respect to any notice of termination for Cause delivered by the City pursuant to Section 6. 1.1 (c) through j), Developer shall have twenty (20) Business Days after the date such notice is received or deemed to be received to eliminate or mitigate to the satisfaction of the City the grounds for such termination or if such cure cannot be reasonably accomplished within such twenty (20) Business Day period, shall have a total of ninety (90) calendar days after the date the notice of default is received or deemed to have been received by Developer to complete such cure, but only if Developer has commenced such cure within such twenty (20) Business Day period and diligently pursues such cure to completion, or shall have such 2 Exhibit H must be submitted and approved by the Director prior to issuance of any permit, excluding the demolition permit. 23 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 longer period of time as may be expressly agreed by the City in its sole discretion. If, at the end of the applicable cure period (or any extension thereof), Developer has not eliminated or completely mitigated such grounds for termination to the satisfaction of the City, the City may then terminate this Agreement for Cause by delivering a written notice of such termination to Developer. The City shall have the right to terminate this Agreement for Cause upon provision of written notice to Developer upon the occurrence of either of the events described in Section 6.1.1(a) or b) and without cure period provided to Developer. 6.1.3 City Termination Rights. Upon termination for Cause, the City may, but shall not be obligated to, do any or all of the following: (a) take possession of the Site and all of the materials, equipment, tools and construction thereon; (b) acquire any Improvement that has not been Completed prior to the termination date; (c) Complete the Work or any portion thereof by whatever reasonable method the City may deem expedient or complete the acquisition, construction and installation of any Improvements not theretofore acquired from Developer pursuant to Section 3.2.1 and the City may use all or any portion of the Performance Bonds to pay for such construction and installation; and/or (d) accept assignment(s) of the Construction Contracts. 6.1.4 City Remedies in Event of Developer Default. If this Agreement is terminated for Cause by the City pursuant to this Section 6. 1. Developer shall have no claim or right to any payments for any portion of the Work performed after the termination date, and the City may, at its election, Complete all or any portion of the Improvements, in which event it may use whatever services, materials and equipment it deems appropriate to Complete the Improvements. In addition, if the expense to the City of Completing any Improvement together with the amount previously paid to Developer for performance of Work on such Improvement pursuant to this Agreement exceeds the Contract Price for such Improvement, then Developer shall be liable for (a) the cost to Complete such Work in excess of the Contract Price as amended by PCOW and all other amounts due to the Subcontractor with respect to such Work and not then paid and (b) all additional damages, including attorneys', experts' and consultants fees and cost, but excluding anticipatory or unearned profits, suffered by the City as a result of the termination for Cause by the City. The performance of the Work shall be secured by the Performance Bonds and Payment Bonds. The City shall have all rights and remedies available at law or equity and nothing in this Agreement is intended to limit any legal or equitable rights or remedies of the City in the event of any failure by Developer to perform the Work as required under this Agreement. Section 6.2 Termination of Construction Contracts Developer acknowledges that time is of the essence with respect to this Agreement and the commencement and completion of construction of the Work. Accordingly, in addition to any other rights of the City under this Agreement, if Developer is in default of its obligations hereunder, after providing Developer with written notice and the opportunity to cure a default, the City shall have the right to require Developer to terminate any Construction Contract or, at the election of the City, to assign to the City the rights and obligations of Developer under the applicable Construction Contract, in which event the City may enforce the obligations of the Subcontractor under such assigned Construction Contract. Section 6.3 Remedies in General; Damages Limited In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the 24 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure Section 1033.5 or California Civil Code Section 1717 in the absence of this Agreement. These costs and expenses include court costs, expert witness fees, attorneys' fees, and costs of investigation and preparation before initiation of the Action. The right to recover these costs and expenses shall accrue upon initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. The maximum hourly rate for attorneys which are recoverable under this Section is $200/hour. The limitations on attorneys' fees set forth in this Section shall not preclude Developer from seeking payment for amounts that the City is obligated to pay to Developer pursuant to Section 4.1 of this Agreement; 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. The City and the Developer shall in no event be liable for any expectation, anticipation, indirect, consequential, exemplary or punitive damages. Section 6.4 Survival The provisions of this Article VI shall survive the termination of this Agreement. ARTICLE VII NUSCELLANEOUS Section 7.1 Independent Contractor In performing under this Agreement, it is mutually understood that Developer is acting as an independent contractor, and not as an agent of the City. The City shall not have any responsibility for payment to any Subcontractor, Sub -subcontractor, material supplier, material manufacturer or vendor, or other Persons engaged by Developer or any Subcontractor or Sub -subcontractor at any tier and shall have no responsibility for any debt or obligation of Developer. Section 7.2 Binding on Successors and Assigns Neither this Agreement nor the duties and obligations of Developer hereunder may be assigned to any Person without the prior written consent of City, which consent shall not unreasonably withheld, except in connection with an assignment of all of Developer's right, title and interest under the Development Agreement and in such event only to the assignee of Developer with respect to such interest; provided, however, that the foregoing is not intended to prohibit Developer entering into construction or consulting contracts in connection with the construction of the Improvements that are in compliance with all requirements of this Agreement. Such assignment shall be subject to consent of the City in accordance with the requirements and standards set forth in the Development Agreement. The agreements and covenants included herein shall be binding on and inure to the benefit of the permitted assigns and successors -in -interest of the Parties hereto. Section 7.3 Amendments This Agreement may be amended only by an instrument in writing executed and delivered by the City and Developer. 25 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Section 7.4 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. Section 7.5 Notices Any written notice, demand, consent, request or other communication to be given hereunder to be effective shall be given to the Party entitled thereto under any method specified in Section 18.6 of the DDA except for facsimile transmission to the address set forth below. Any Party hereto may change its address by notifying the other Party of the change of address in writing in the manner specified in said Section. TO CITY: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Manager With a copy to: Woodruff, Spradlin Smart 555 Anton Boulevard, Ste 1200 Costa Mesa, CA 92626 Attn: David E. Kendig, Esq. TO DEVELOPER: Irvine Asset Group, LLC 4000 MacArthur Boulevard, East Tower, Suite 600 Newport Beach, CA 92660 Attn: Craig Swanson With a copy to: Allen Matkins, LLP 1900 Main Street, 5th Floor Irvine, CA 92614 Attn: John Condas, Esq. Section 7.6 Force Maieure Delay If any Party ("First Party") believes that it is entitled to an extension of time due to Force Majeure Delay, it shall notify the other Party ("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 26 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 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 sole discretion. If the First Party fails to notify the Second Party in writing of its request for a given Force Majeure Delay within the thirty (30) calendar days specified above, any extension for such Force Majeure Delay shall be in the sole discretion of the Second Party. Section 7.7 Duplicate Originals This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. Section 7.8 Entire Agreement This Agreement, including the Exhibits attached hereto constitutes the entire agreement between the City and Developer with respect to the subject matter hereof. [Signature Page Follows] 27 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. "DEVELOPER" Irvine Asset Group, LLC, a California limited liability company By: Craig Swanson, [insert title] "CITY" CITY OF TUSTIN By: Matthew S West, City Manager ATTEST: Erica N. Yasuda, City Clerk APPROVED AS TO FORM: David E. Kendig, City Attorney 28 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 29 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 30 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT A Legal Description PARCEL 1, PER MAP FILED IN BOOK 52, PAGE 36 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2, PER MAP FILED IN BOOK 52, PAGE 36 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. SITE ADDRESS: 13751 RED HILL AVENUE, TUSTIN, CA 92780 13841 RED HILL AVENUE, TUSTIN, CA 92780 ASSESSOR'S PARCEL NUMBER: APN 500-141-10 APN 500-141-09 A-1 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT B Site Plan 11iA .� - RED HILL MIXED-USE IRVINE ASSET GROUP LLC ADW rAACAMP.h* W -7J. r4V *rwEW AVZ SM %CSC+r JCAC1 • c: y: M MAID B-1 1619045.3 i/NOltMi R/N _ AO ARCiiITE 1 714 a arw[ra jJ��] 6Y1 L-11 AJ =C..._ DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT C Description of Partially Reimbursable Improvements Construction tasks associated with accomplishing the line items will vary as needed; however, the attributable reimbursement responsibility or proportional share to carry out such improvements will not change. Should a discrepancy arise pertaining to the required construction tasks necessary to accomplish the Improvements and administer, contract and supervise the work for which Developer requests reimbursement pursuant to this Agreement, the City shall have final authority, in its sole discretion, to approve reimbursable expenses. 1) Red Hill Avenue Specific Plan — Median, Street Widening, and Signage a) The applicant shall design and construct the landscaped median on Red Hill Avenue between El Camino Real and San Juan Street including sawcut and removal of existing asphalt paving and subgrade materials; construction of median curb per City Standard 201, Type B-1, modified with 10 -inch curb face to accommodate future pavement overlay; construction of new decorative hardscape; and installation of new landscape and irrigation systems based on the Red Hill Avenue Streetscape and Median Feasibility Study from El Camino Real to Bryan Avenue (CIP 70209) dated September 10, 2012. The applicant shall be responsible for fair share cost of the Red Hill Avenue median (50%), and City shall be responsible for reimbursing applicant the other 50% pursuant to Section 4.1.2 of this Agreement. The applicant shall be responsible for paying the entire cost of the Red Hill Avenue street widening, solely on applicant's frontage on Red Hill Avenue, to accommodate parallel parking and a future bike lane along the project frontage. b) Signage for Specific Plan All proposed RHASP required signage, including monument signs shall be designed and constructed on private property and shall comply with the Red Hill Avenue Specific Plan and the City of Tustin Guidelines for Determining Sign Location Visual Clearance and Public Safety Areas. City shall reimburse applicant 50% of the cost of the work, pursuant to the process established in Section 4.1.2 of this Agreement. 2) Traffic Signal a) San Juan traffic signal modifications The applicant shall submit project proportionate share of the traffic signal modifications (i.e. left -turn phasing) at the intersection of Red Hill Avenue and San Juan Street in the amount of $9,000.00 to the City of Tustin Public Works Department prior to the issuance of the first Certificate of Occupancy of the Project. b) New traffic signal at entry, including lighting, signage, etc., based on project traffic analysis. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 The applicant shall be responsible for design and construction of a traffic signal at the intersection of Red Hill Avenue and the main project entrance (project name TBD) including traffic signal installations; signing and striping modifications; installation of radar detection system; and construction of ADA curb ramp and driveway apron on east side of Red Hill Avenue per City Standards. A 24" x 36" reproducible traffic signal plan prepared by a California Registered Civil Engineer shall be submitted prior to the issuance of any building permits on the project. Improvements shall be constructed prior to the issuance of any Certificate of Occupancy Work shall include any surface improvements associated with the new signalized intersection along the southeasterly side of Red Hill Ave. The applicant shall be responsible for the fair share cost (50%), and City shall responsible for the remaining 50% of the fair share cost, and City shall process this reimbursement pursuant to the process established in Section 4.1.2 of this Agreement. 3) Alley work, including new drainage, conversion of existing overhead utility owned electric, telephone and CATV facilities to underground, repaving and striping of alley. The applicant shall design and reconstruct the full width of the existing public alley, including the undergrounding of all existing and proposed utility distribution facilities within the public right-of-way along Red Hill Avenue along the project frontage, and within the alley adjacent to the Project. The alley shall be constructed with Portland Cement Concrete (PCC), and City shall maintain this public alley. The applicant's fair share percentage for the alley reconstruction work is 50%. The applicant shall be entitled to receive reimbursement from the City if the City collects fair share payments from other property owners or developers (collectively, "Benefitted Property Owners") whose properties benefit from this work. Upon future redevelopment of properties adjacent to the alley, City shall impose and collect such fair share payments from Benefitted Property Owners, and shall disburse such fair share payments to the applicant after it collects any fair share payments from a Benefitted Property Owner, and then applicant and City shall process the reimbursement pursuant to Section 4.1.2 of this Agreement. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT D POTENTIAL CHANGE OF WORK FORM [See attached] 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 CITY OF TUSTIN DATE INITIATED IN FIELD: POTENTIAL CHANGE OF WORK ("PCOW") ACKNOWLEDGEMENT & VALUE The purpose of this form is to acknowledge a change in work that may impact the Actual Costs and/or Construction Schedule for an Improvement constructed per the Infrastructure Construction & Reimbursement Agreement between the City of Tustin and Irvine Asset Group LLC ("Developer"). Upon acceptance, a Change Order will be issued. City of Tustin Reference No.: PCOW NO: No. — CO No.) Subcontractor/Consultant Name: Project: Improveme nt: Contractor Developer 'S Constr. Mgr: Design Firm: Developer POTENTIAL CHANGE OF WORK: ❑ Work Description: ❑ What Caused the Change: (Developer Original PO (CO PO No.) If PCOW is for Consultant services during construction, fill in the following information otherwise leave blank: Consultant's Contract No: Consultant's Name: ❑ Why is this Change Outside the Original Contract Scope and Previous Change Orders: ❑ Plan Revision ❑ Y ❑ N If yes, Delta Revision Date Required? No. Approved: D-2 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 ❑ Change in Contract Time? ❑ Change in Contract Price? ❑ Y ❑ N If yes: +/- Days ❑ Y ❑ N If yes: +/- Working I. City Developer's Construction Manager has discussed this potential change of Inspector: work with me. (Print Name) 2. Developer: Reviewed by: (Signature) Date Owner Representative / Date 3. City of In the City of Tustin's opinion the aforementioned work Tustin: a. Does Does NOT Qualify as a potential change of work. 11 Qualify 11 b. City of Tustin's comments (required if representative does not concur with the potential change): c. CHANGE OF WORK VALUE (with detailed backup $ attached): d. Recommended by: City of Tustin Representative / Date D-2 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT E FORM OF CONCURRENCE LETTER 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 [Developer Letterhead] [Date] City of Tustin 300 Centennial Way Tustin, CA 92780 Please find enclosed the following Bid/Proposal documents for the [Improvement] to be constructed by Irvine Asset Group LLC ("Developer") pursuant to the Infrastructure Construction and Reimbursement Agreement between the City of Tustin and Developer dated ("Reimbursement Agreement"). 1. Bid Summary for Construction 2. One (1) copy of Subcontractor Bid Submittal 3. One (1) copy of Professional Proposal Developer recommends award of contracts as follows: CITY PORTION WORK/ PURCHASE VENDOR NAME AMOUNT SERVICE ORDER Construction [cmbVendor] [txtPONo] [txtAmount] N/A [cmbVendorl] [txtPONol] [txtAmountl] Award Total: Please indicate your concurrence of the City's acceptance of the above bid and cost of work/services and that the above-described work is eligible for reimbursement under the Reimbursement Agreement by signing below and returning to me. If you have any questions, please contact me directly at [ J. Sincerely, [insert authorized developer signature] CITY OF TUSTIN CONCURRENCE By: Matthew West 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 City Manager Date: Copy: Bid File (Task/PC ID: [cmbTaskID].) Finance, Jason Al -Imam. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT F FORM OF ASSIGNMENT AGREEMENT [See attached] 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Assignment Agreement This ASSIGNMENT AGREEMENT is made as of , 20, by and between IRVINE ASSET GROUP LLC, a California limited liability company ("Assignor"), to the CITY OF TUSTIN, a California municipal corporation ("Assignee") based upon the following recitals: A. Assignor has previously entered into that certain construction contract relating to construction of ("Improvement") by and between Assignor and ("Subcontractor"), a copy of which contract is attached hereto as Attachment 1 ("Construction Contract"). B. Assignee desires to acquire (i) Assignor's right, title and interest in and to the Improvement constructed under the Construction Contract, and (ii) the warranty rights of Assignor as to the Improvement under the Construction Contract, and Assignor desires to assign such rights to Assignee. NOW, THEREFORE, in consideration of the foregoing, the covenants and agreements contained herein and other valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. ASSIGNMENT. Effective upon the date specified in Section 2 hereof ("Assignment Date"), Assignor assigns and transfers to Assignee all of Assignor's right, title, claim and interest in and to (a) the Improvement constructed pursuant to the Construction Contract, and (b) the warranties and guarantees of Subcontractor as to the Improvement constructed pursuant to the Construction Contract. This Assignment is made by Assignor pursuant to the provisions of Section 2.7 of the Infrastructure Construction and Reimbursement Agreement between Irvine Asset Group LLC and the City of Tustin dated as of ("Reimbursement Agreement"). 2. ASSIGNMENT EFFECTIVE DATE. The Assignment Date shall be , 20, which is the date that the City has entered as the "Acceptance Date" on the Request for Acceptance referenced in Section 3.2 of the Reimbursement Agreement [, or if the assignment is made by reason of default of Assignor under the terms of the Reimbursement Agreement, , 20 ]. IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment Agreement as of the day and year first hereinabove written. ASSIGNOR: IRVINE ASSET GROUP LLC, a California limited liability company F-2 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Name: Title: By: _ Name: Title: {signatures continued from previous page) ACCEPTED BY ASSIGNEE: CITY OF TUSTIN, a California municipal corporation By: Name: Title: Subcontractor Acknowledgment: By its signature below, Subcontractor acknowledges receipt of notice of this Assignment Agreement, and agrees that all Warranties provided by Subcontractor and its Sub -subcontractors, vendors and material manufacturers and suppliers under the Construction Contract with respect to the Improvements shall be deemed transferred to, and enforceable by, the City of Tustin, effective on the Effective Date of this Assignment. "Subcontractor" By: Name: Title: Date: .20 Subcontractor Address and Contact Information: 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Telephone: Contractor's License No. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Attachment 1 to Assignment Agreement [Attach Copy of Construction Contract Being Assigned] 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT G FORM OF REOUEST FOR ACCEPTANCE [See attached] 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 REQUEST FOR ACCEPTANCE Irvine Asset Group LLC ("Developer"), hereby requests that the City of Tustin ("City') accept the Improvement or Improvements described in Attachment A attached hereto in accordance with the procedures contained in Section 3.2 of the Infrastructure Construction and Reimbursement Agreement between the City and dated ("Agreement"). Capitalized undefined terms contained in this Request shall have the meanings ascribed thereto in the Agreement. In connection with this Request for Acceptance, the undersigned hereby represents and warrants to the City as follows: I. Developer Representative. The undersigned is a Developer Representative, qualified to execute this request for payment on behalf of Developer and knowledgeable as to the matters set forth herein. 2. As -Built Plans. Developer has submitted or submits herewith to the Director as - built drawings or similar plans for the Improvements for which City Acceptance is requested, including as described in Section 3.2.1(a) of the Agreement and such drawings or plans and specifications, as applicable, are true, correct and complete. 3. Improvement Construction Per Approved Plans. Each of the Improvements described in Attachment A to this Request is "Complete," has been constructed in accordance with the Approved Plans therefor, and in compliance with all applicable City standards, and all applicable federal, State and local laws and the requirements of the Agreement, and the as -built drawings or other plans and specifications referenced in paragraph 2 above. 4. Developer Actual Cost. The true and correct Actual Cost of each Improvement for which City acceptance is requested is set forth in Attachment A. 5. Actual Cost Backup Documentation. In connection with prior Payment Requests, Developer has previously submitted to the Director invoices, receipts, worksheets and other evidence of costs that are in sufficient detail to allow the Director to verify the cost of each Improvement for which City Acceptance is requested. In addition to the maintenance costs reflected in such information, Developer estimates (based on prior maintenance costs or the quoted monthly maintenance cost charge contained in its maintenance contract for such Improvement) that the ongoing maintenance costs for the Improvement described herein will cost $ per month until the date of City's acceptance of the Improvement. Within thirty (30) days of City's acceptance of the Improvement, Developer and the City will meet and review the actual costs of maintenance incurred that were not paid by the City as part of the Final Approved Cost pursuant to Section 4.1.2 of the Agreement, after which the City shall promptly reimburse Developer for any shortfall in the cost of maintenance paid to Developer (or if the City has overpaid for any such maintenance costs when the payment pursuant to Section 4.1.2 was paid, Developer shall promptly reimburse the City for the amount of any such overpayment). 6. No Liens. There has not been filed with or served upon Developer notice of any lien, right to lien or attachment upon, or claim affecting the Improvement or the acceptance thereof by the City that has not been released or will not be released simultaneously with the payment of 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 such obligation, and all lien releases required pursuant to Exhibit M of the Agreement have been provided to the City. 7. No Event of Termination. No event listed in the Agreement that would trigger a default by Developer or a right to termination for Cause by the City has occurred and is continuing or will occur upon the making of this Request by Developer to City. 8. Accuracypresentations and Warranties. The representations and warranties of Developer set forth in Section 5.1 of the Agreement are true and correct on and as of the date hereof with the same force and effect as if made on and as of the date hereof. The foregoing is declared under penalty of perjury to be true and correct. IRVINE ASSET GROUP LLC, a California limited liability company By: _ Name: Title: Date: 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 APPROVAL BY THE CITY (Information to be completed by the City upon approval by the Director) The Final Approved Cost of each Improvement listed on Attachment C, as well as the Acceptance Date of same, is as follows: Final Approved Cost of Improvement: Acceptance Date of Improvement: Date: 1619045.3 DIRECTOR OF THE CITY OF TUSTIN MM Name: Title: DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Attachment A to Form of Request for Acceptance (Information to be completed by Developer prior to submittal to the Director) 2 1619045.3 Description of Completed Improvement: Actual Cost Incurred by Developer: $ DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT H CONSTRUCTION SCHEDULE tie numbering for each item to Exhibit C (This Exhibit H must be submitted and approved by the Director prior to issuance of any permit, excluding the demolition permit.) Improvement Improvement Work to Be Performed Start Date Completion Date No. 1. Notes: Each "Start Date" is the latest start date; earlier starts are allowed. Each "Completion Date" is latest completion date; earlier completions are allowed. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT I FORM OF PAYMENT REQUEST {See attached) 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Payment Request Form Payment Request No. To: City of Tustin From: Irvine Asset Group LLC ("Developer") Project: Improvement Name: This Payment Request is made on , 20 pursuant to Section 4.1.1 of that certain Infrastructure Construction and Reimbursement Agreement between the City of Tustin and Developer dated , 2017 ("Reimbursement Agreement") for the portion of the following Work that was performed in connection with the construction of the above Improvement: As to this Payment Request Contractor represents and certifies the following: I. The amount(s) specified in this Payment Request accurately represent the hours of labor performed, the materials supplied and the costs incurred for the portion of the Work described above and have been performed upon or furnished to for the Improvement described above. Copies of applicable invoices and other documents evidencing the total amount expended, incurred or due are attached to this Payment Request. 2. To the best of our knowledge, the quantities of units installed in the Improvement for the various items of Work described in this Payment Request are accurate. 3. There are no known mechanics' or materialmen's liens outstanding, and all due and payable bills with respect to the Work have been paid or are included in the amount requested in this Payment Request, and all lien releases required pursuant to Exhibit M to the Reimbursement Agreement have been provided. 4. That Work for which payment is requested has passed all inspections and approvals required by any applicable Governmental Authority. 5. Out of the funds received by Developer under this Payment Request, Developer agrees to pay all due and payable bills with respect to the Work and to make all contributions or 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 payments required under any labor agreement applicable to Developer's Subcontractor and Sub - subcontractors. 6. All Work to date has been performed in accordance with the Approved Plans except as expressly approved by the City of Tustin under an Approved PCOW. 7. There have been no changes in the Work or the Construction Schedule, and no extra Work, labor or materials has been ordered or contracted for, except as expressly approved by the City of Tustin in accordance with the Reimbursement Agreement. 8. All conditions to the payment of this Payment Request as required by the Reimbursement Agreement, including, without limitation, the delivery of all supporting documentation required by the Reimbursement Agreement, have been fulfilled. Exceptions to the above representations by Developer: Dated: Irvine Asset Group LLC Name: Title: [Attach Exhibit I-] (Invoice & Payment Summary)] 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT J CONSTRUCTION CONTRACT TERMS Developer shall include the following provisions into any Construction Contract it enters with a Subcontractor for performance of Work in connection with the construction of any Improvement: Notwithstanding anything in this Contract to the contrary, the parties to this Contract agree as follows: (a) Construction Guidelines. Subcontractor and all of its employees, representative, contractors, suppliers and other invitees (collectively, the "Subcontractor Parties") shall comply with the construction guidelines and any other rules and regulations of Developer and the City of Tustin ("City") applicable to the site where the Work is to be performed (copies of which guidelines, rules and regulations will be provided by Contractor to Subcontractor). (b) Insurance. Prior to any entry onto the Site, Subcontractor shall obtain, and maintain in full force and effect during the term of this Subcontract, insurance coverage as set forth in the Insurance Requirements Exhibit attached to the Contract, and shall require all the Subcontractor Parties (i.e., Sub -subcontractors) to obtain and maintain the coverages specified in Section 5 of said Insurance Requirements Exhibit. (c) Bonds. Subcontractor shall provide payment and performance bonds in the full amount of the Contract Price that guarantee the payment of all Sub -subcontractors, laborers, suppliers and materialmen and that guarantee the performance and completion of the Work on the Improvement, which bonds shall be issued by a licensed surety in the State of California acceptable to Developer. The bonds shall be in the form provided by Developer, which shall be the same bond forms as Developer uses in connection with its Reimbursement Agreement with the City. Developer and the City of Tustin shall each be named as co -obligees under each bond provided by Subcontractor. (d) Indemnification. Subcontractor agrees to indemnify, defend, protect and hold harmless Developer, [add entity executing agreement if different from Developer] and the City ("Indemnified Parties") (with counsel reasonably acceptable to the affected Indemnified Party or Parties) and the City's elected and appointed officials, employees, consultants, contractors and agents and all the other indemnified parties identified in the Contract harmless from and against any 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, whether incurred by or made against or recovered or obtained from any of such parties ("Claim") , that arise as a result of or by reason of or as a consequence of (i) the construction, installation or maintenance of the Work on the Improvement or any portion thereof by Subcontractor and the other Subcontractor Parties; (ii) all other activities on and use of the Site by Subcontractor and the other Subcontractor Parties; (iii) any breach by Subcontractor of any of its representations, warranties, covenants or obligations set forth in the Contract; and (iv) any act or omission of the Subcontractor or the Subcontractor Parties in connection with the construction, installation or maintenance of the Work or any portion thereof. If Subcontractor fails to defend any Claim pursuant to its obligations hereunder, the City shall have the right, but not the obligation, to defend the same and charge all of the direct or incidental costs of such defense, 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 including any third party fees or costs paid for by the City (including but not limited to bills from the City's contract City Attorney related to this Agreement), to and recover the same from Subcontractor. (e) Repair of Damage. Subcontractor shall repair any damage to the property of the Indemnified Parties or any other Person caused by Subcontractor or the Subcontractor Parties during the course of Subcontractor's performance of the Work and any other activities and operations on the work site. (f) Assignment. Subcontractor agrees that if the Reimbursement Agreement between Developer and the City is terminated and Developer assigns its rights under the Contract to the City and such assignment is accepted by the City, Subcontractor shall continue to perform its obligations under the Contract if the City is substituted in place of Developer; provided, however, that the City shall not be responsible for any breaches or defaults of Developer under the Contract that occurred prior to the date of such assignment to the City. Upon such assignment and acceptance by the City, Developer will be relieved of all of its obligations under the Contract arising after the date of such assignment. (g) Third Party Beneficiaries. Subcontractor acknowledges and agrees that (i) the City, Developer and the other indemnitees identified in the indemnification provision of the Contract shall be third party beneficiaries of this Subcontract as to all obligations owed by Subcontractor as described in this Addendum, as well as any express or implied warranties of Subcontractor under this Contract, (ii) neither Developer nor the City shall be deemed to be a guarantor of Subcontractor's obligations under this Contract, and (iii) except for obligations arising after the assignment to the City of the Contract pursuant to subsection (f) above, the City shall not be bound by any obligations owed by Developer to Subcontractor under this Contract. (h) Compliance with Law. Subcontractor shall be required to comply with all applicable laws, ordinances and regulations in its performance of Work on any Improvement, including but not limited to applicable provisions of the California Labor Code regarding public works contracts and payment of prevailing wages. (i) Independent Contractor. Subcontractor shall be deemed to be an independent contractor retained by Developer to perform the Work, and nothing contained in this Contract shall create any contractual relationship between the City and Subcontractor, Sub -subcontractor, vendor, material supplier or laborer or any other Person retained by Subcontractor or by any of the foregoing, at any tier, or their respective officers, employees or agents. 0) Warranties. Subcontractor represents and warrants to Developer that any materials, supplies, products and equipment furnished under this Contract will be new unless otherwise specified, and that any of the Work will be of good workmanship and quality, free from faults and defects and in strict conformance with the Contract Documents, the standards in the industry, all applicable laws, ordinances and regulation, including without limitation the Uniform Building Code, and any manufacturer's recommendations. Any of the Work not conforming to same may be considered defective. If required by Developer, in Developer's sole discretion, Subcontractor shall furnish satisfactory evidence as to the kind and quality of such materials, supplies, products and equipment. If any manufacturer or supplier of any such materials, supplies, products or equipment furnishes a guarantee or warranty for a period in excess of one year from final completion, then Subcontractor's warranty pursuant to this Article shall be deemed to extend to it for a like period. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Prior to final completion of the Work, Subcontractor shall deliver to Developer copies of any guarantees and warranties relating to the Project, together with duly executed instruments properly assigning same to Developer. Subcontractor shall bind copies of the guarantees and warranties together in a single volume, grouped by trade and properly indexed. Subcontractor shall assign to Developer or any purchaser from or assignee of Developer the guarantees and warranties of Subcontractor's Sub -subcontractors, suppliers and representatives and any other rights of any kind against any Persons. Such assignment will not relieve Subcontractor of any of its other obligations contained in the Contract Documents. No Final Acceptance by Developer or the City shall operate as a waiver or release with respect to any warranties applicable to the Work or the Improvements or any rights or remedies pertaining thereto. Subcontractor warrants that any and all portions of the Work will be free from any defects in material and workmanship for a period of one year from the Date of Acceptance of the Improvement by the City, which warranty shall survive the expiration or earlier termination of this Contract. As part of the warranty, Subcontractor agrees to commence the repair or replacement of any defective material or equipment and the performance of related labor necessary to correct any such defect in the Work within three days after receipt of notice of the defect and thereafter to diligently prosecute any corrective work to completion, all at Subcontractor's sole cost and expense. Upon failure of Subcontractor to do so, Developer may, in Developer's reasonable discretion, furnish or secure any materials and labor necessary to correct any defect. Any loss caused by said failure of Subcontractor, including without limitation compensation for additional professional services, shall be at Subcontractor's sole cost and expense. Nothing in the Contract Documents shall in any way limit the right of Developer to assert claims for patent or latent defects in the Work or loss caused by them for the longest applicable period of limitations prescribed by California law. Nothing in the Contract Documents shall be construed to establish a period of limitation with respect to any other obligation of Subcontractor or claim of Developer under the Contract Documents. Subcontractor acknowledges and agrees that prior to Final Acceptance of any Improvement by Developer, that Developer shall assign to the City any and all warranties or guarantees which Subcontractor is required to provide or obtain pursuant to the Construction Contract, including, but not limited to, Sub -subcontractors and manufacturers, and Contractor agrees to perform the Work in such a manner so as to preserve any and all such warranties. The above warranties and guarantees shall remain in effect for a period of one (1) year commencing from the date of Final Acceptance of the Work by the City. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT K SUBCONTRACTOR INSURANCE REQUIREMENTS Prior to commencement of any Work under this Contract, Subcontractor shall, at Subcontractor's sole cost, comply with the following insurance requirements: 1. General Requirements. a. Carrier Requirements. All insurance to be carried by Subcontractor will be maintained by Subcontractor at its cost with insurance carriers approved to do business in California, having a general policyholders rating of not less than an "A" and financial rating of not less than "VIII" as currently rated by A.M. Best Company, or such other ratings as agreed upon in writing by Developer in Developer's Discretion. b. Insurance Limits; No Limitation of Liability. Subcontractor may provide the required insurance in whole or in part through a policy or policies covering other liabilities and projects of Subcontractor; provided, however, that any such policy or policies shall satisfy all of the requirements set forth in this Exhibit, including the endorsements described below. The required insurance limits stated in this Insurance Exhibit are minimum limits. Nothing contained in this Exhibit is to be construed as limiting the type, quality or quantity of insurance Subcontractor should maintain for its own protection. The carrying of insurance as specified herein shall not be construed to limit Subcontractor's liability under the Construction Contract or as a matter of Law. Nothing in this Insurance Exhibit shall be deemed to place any responsibility on Developer for ensuring that the required coverages are sufficient for the conduct of Subcontractor's business. C. Evidence of Insurance. As evidence of the insurance required by this Insurance Exhibit, and except as otherwise provided below, Developer will accept certificates of insurance from Subcontractor's insurance broker (and, where required below, endorsements from Subcontractor's insurance carrier) and other evidence of insurance acceptable to Developer, in Developer's sole discretion, showing the required coverages for the applicable insurance required of Subcontractor and Subcontractor's officers, employees, agents, representatives, as well as any Sub -subcontractor performing any portion of the Work for or on behalf of Subcontractor (collectively, "Subcontractor's Representatives") in force for the specified periods. Developer has the right to obtain certified policies from Subcontractor and Subcontractor's Representatives and their insurance carriers as Developer in its sole discretion deems necessary. Such evidence shall be delivered to Developer promptly upon execution of this Contract, or prior to commencement of Work, whichever earliest occurs, and show specifically the amount of the deductible or SIR under each policy. Each policy, certificate and endorsement shall be subject to approval by Developer in its sole discretion. d. Changes in Coverage. In no event will any insurance required hereunder be amended or reformed or rescinded or terminated or otherwise changed or allowed to lapse prior to the earlier of the completion of the Work pursuant to the provisions of this Contract or termination of the Contract or such longer period as may be specified in this Exhibit. Insurer endorsements (or a copy of the policy binder, if applicable) shall specifically identify this Contract and shall provide: that said insurance shall not be cancelled except if Subcontractor is given at least thirty (30) days advance written notice of any cancellation or termination of insurance. The foregoing requirement may also be satisfied upon provision of evidence by the insurer that Subcontractor has paid for its premium in 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 full for any policy that is currently in place. In the event (i) any policy expires or is canceled before the expiration of this Contract, or (ii) any policy is amended so that the required coverages are reduced or otherwise changed to the detriment of Developer or any named insured, Subcontractor shall immediately bring such insurance into compliance with the requirements of this Contract and deliver new certificates and endorsements (and policies, if requested by Developer) to Developer upon the renewal, replacement or modification of such policy(ies). If Subcontractor fails to comply with the foregoing requirements, then Developer reserves the right, but shall have no obligation, to procure such policy(ies) and to deduct the cost thereof from any sum due Subcontractor under this Contract, and Subcontractor shall fully cooperate in the purchase of such insurance. e. SIRS and Deductibles. Developer shall be given the opportunity to approve and, in Developer's Discretion, disapprove, the amount of any proposed self-insured retention ("SIR") or deductible. If Subcontractor, with Developer's approval, elects to maintain an SIR or deductible with respect to the insurance required by this Insurance Exhibit, it shall not apply to the additional insureds listed below and no such additional insured shall be obligated to reimburse such SIR or deductible or to pay Subcontractor as a reimbursable cost, any actual or imputed cost of maintaining such SIR or deductible. Notwithstanding the foregoing, any additional insured may satisfy the SIR or deductible on behalf of the Subcontractor or Subcontractor's Representative if the additional insured elects to do so. 2. Required Coverages. Subcontractor shall maintain the following insurance for the times provided herein: a. Workers' Compensation Insurance. Workers' Compensation Insurance, including Employer's Liability, with a minimum limit of $1,000,000 or the current limit carried by Subcontractor or the amount required to be carried by California law, whichever is greater, for all individuals whom Subcontractor employs in carrying out the Work. This insurance shall be in strict accordance with the requirements of the most current and applicable Workers' Compensation Insurance Laws in effect from time to time in California. Prior to the commencement of the Work, Subcontractor shall cause a waiver of subrogation endorsement from Subcontractor's insurance carrier to be delivered to Developer in form satisfactory to Developer in its sole discretion. b. Commercial General Liability Insurance. Commercial General Liability Insurance on an "occurrence" basis, with a minimum combined single limit for bodily injury, property damage and personal and advertising injury of Five Million Dollars ($5,000,000) or the current limited carried by Subcontractor, whichever is greater, unless other limits are agreed to in writing in Developer's sole discretion, covering operations, independent contractors, products and completed operations, blanket contractual liability, broad form property damage, severability of interest and cross liability clauses, personal injury and explosion, collapse and underground hazards (X,C,U). The limits of liability specified in this Exhibit may be provided by any combination of primary and umbrella/excess liability insurance policies. Such policies shall be renewed annually for at least ten (10) years after final acceptance and completion of the Work or shall provide tail coverage through the expiration of the statute of limitations. An endorsement to such policy satisfactory to Developer in its sole discretion and meeting the requirements set forth in the "Additional Insured Endorsement" section below shall be delivered to Developer as required in the Contract. In addition, this Commercial General Liability Insurance shall comply with the following: 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 (i) There shall be no limitation of coverage to vicarious liability and coverage shall extend to any independent liability of the additional insureds; (ii) There shall be no exclusionary language or limitations of coverage relating to soils subsidence or earth movement of any kind regardless of cause; (iii) There shall be no exclusionary language or limitations of coverage relating to residential construction, condominiums, multi -family or multi -unit dwellings, if applicable to the Work; (iv) There shall be no exclusionary language or limitations that are applicable to the additional insured that are not also applicable to the named insured; (v) There shall be no exclusionary language or limitations of coverage relating to property damage relating to mold or fungus; and (vi) There shall be a provision that defense costs are paid in addition to and do not deplete any policy limits. C. Automobile Liability Insurance. Automobile liability insurance (including but not limited to owned and non -owned automobiles, as applicable) on an occurrence basis, covering all automobiles, trucks and other vehicles and trailers used by Subcontractor in connection with the Work, with a minimum combined single limit for bodily injury and property damage of not less than Two Million Dollars ($2,000,000) and uninsured motorists coverage of $2,000,000, or, in each case, the current limited carried by Subcontractor, whichever is greater. e. Transit Insurance. Subcontractor shall maintain "all risk" insurance, on a replacement cost basis covering loss or damage to property (for which it has title or risk of loss) which will become a final part of the Project, during its off -Project site transit and while stored or worked upon away from the Project. Developer shall be included as a loss payee under such policy as its interests may appear. Said insurance shall have a self-insured retention or deductible. f. Rental Equipment. In the event that rental of equipment is undertaken to complete or perform the Work, Subcontractor shall be solely responsible for such rental equipment. Such responsibility shall include, but not be limited to, theft, fire, vandalism and use by unauthorized Persons. In addition to the other insurance coverage that Subcontractor is required to maintain under this Contract, Subcontractor may elect to obtain a "rental cost reimbursement endorsement" to provide coverage for any equipment it rents in connection with the Work. 3. Additional Insured Endorsement. Developer and the parties described in this Section shall be included as additional insureds under the Commercial General Liability Insurance. The endorsement shall list the following parties as additional insureds: "Irvine Asset Group LLC and all persons and entities controlling, controlled by or under common control with such entities, together with their respective owners, shareholders, partners, members, divisions, officers, directors, employees, representatives and agents, and all of their respective successors and assigns; and the City of Tustin, and its elected and appointed boards, officers, agents and employees. " The policy coverage shall not contain any exclusionary language or limitations that are applicable to any additional insured that are not applicable to the named insured. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 In addition to the listing of additional insureds, the endorsement shall also provide: "This insurance is primary and any other insurance maintained by such additional insureds is excess and shall not be required to contribute with this insurance as respects claims or liability caused by, arising out of or resulting from the acts or omissions or work of the named insured, or of others who performed work on behalf of the named insured. Any of such additional insureds may, at his/her/its election, pay any self-insured retention or deductible amount in connection with any claim or liability for which coverage is or may be provided by such insurance notwithstanding any other provision of the policy." 4. Waiver of Subrogation. Subcontractor's release and waiver as set forth in the Contract is intended to be binding upon the insurers of Subcontractor and shall preclude any such insurer from subrogating to any rights or Claims of Subcontractor against Developer and the City. 5. Subcontractor's Representatives' Insurance. Subcontractor will not permit any of Subcontractor's Representatives to commence Work on the Project until each such Subcontractor's Representative, as applicable, has complied with all applicable insurance requirements stated in this Exhibit. In each of its Subcontracts, Subcontractor shall make Developer and the other additional insureds listed above express third party beneficiaries to such Subcontract. Each such Subcontract shall also require Subcontractor's Representative to comply with each and every requirement of this Exhibit applicable to Subcontractor, except with respect to the limits of such insurance which, instead, shall be as follows, unless such Subcontractor's Representative currently maintains higher limits, in which case such Subcontractor's Representative shall be required to maintain such higher limits: a. Workers' Compensation: Statutory Workers' Compensation and Employer's Liability with the following limits: (i) bodily injury by accident: $1,000,000 each accident; (ii) bodily injury by disease: $1,000,000 each employee; and (iii) bodily injury by disease: $1,000,000 policy limit. b. Commercial General Liabilitv: $2,000,000 General Aggregate, $1,000,000 Products and Completed Operations Aggregate; $1,000,000 Personal and Advertising Injury Liability; $1,000,000. Any Sub -subcontractor responsible for Work involving mass grading or trenching or other Work over five feet in depth shall carry $5,000,000 per occurrence and aggregate liability coverages; C. Automobile Liability: $1,000,000 each occurrence. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT L PROFESSIONAL INSURANCE REQUIREMENTS Professional shall not enter on any Site or begin any portion of the Services under any Professional Services Agreement until it obtains all required insurance. Professional shall not permit any of its subconsultants to begin any portion of the Services until such subconsultants have complied with all applicable insurance requirements stated in this Exhibit. 1. General Requirements. a. Carrier Requirements. All insurance to be carried by Professional shall be maintained by Professional at its expense with insurance carriers authorized to do business in California, having a general policyholders rating of not less than an "A" and financial rating of not less than "VIII' in the most current Best's Key Rating Guide or other such ratings. b. Insurance Limits, No Limitation of Liability. Professional may provide the insurance described herein in whole or in part through a policy or policies covering other liabilities and projects of Professional; provided, however, that any such policy or policies shall satisfy all of the requirements set forth in this Exhibit, including without limitation the endorsements described below ("Insurance Requirements"). The required coverage limits amounts stated in these Insurance Requirements are minimum coverage limit amounts. Nothing contained in these Insurance Requirements is to be construed as limiting the type, quality or quantity of insurance Professional should maintain for its protection or the extent of Professional's responsibility for payment of damages resulting from its operations under this Professional Services Agreement, nor shall anything contained herein be deemed to place any responsibility on Developer for ensuring that the insurance required hereunder is sufficient for the conduct of Professional's business. C. Evidence of Insurance. As evidence of specified insurance coverage, and except as otherwise provided below, Developer will accept certificates of insurance from Professional's insurance broker (and, where required below, endorsements issued by Professional's insurance carrier) showing such policies in force for the specified periods. Developer has the right to obtain certified policies as reasonably necessary. Such evidence shall be delivered to Developer within five (5) Business Days of execution of the Professional Services Agreement or prior to commencement of any Services, whichever earliest occurs, and show specifically the amount of the deductible or SIR under each policy. Each policy, endorsement and certificate shall be subject to approval by Developer in Developer's sole discretion. Professional shall also allow Developer to inspect and obtain such evidence of insurance that Professional obtains from any of its subconsultants. d. Changes in Coverage. In no event shall any insurance required under these Insurance Requirements be amended, reformed, rescinded or otherwise changed or allowed to lapse prior to termination of this Professional Services Agreement or any Project Agreement with Professional or such longer period as may be specified herein. Insurer endorsements (or a copy of the policy binder, if applicable) shall specifically identify this Professional Services Contract and shall provide that said insurance shall not be cancelled except if Professional is given at least thirty (30) days advance written notice of any cancellation or termination of insurance. The foregoing requirement may also be satisfied upon provision of evidence by the insurer that Professional has paid for its premium in full for any policy that is currently in place. In the event (i) any policy expires or is canceled before the 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 expiration of this Professional Services Agreement or any Project Agreement, or (ii) any policy of insurance is altered so that the coverage required by this Professional Services Agreement is reduced or otherwise changed to the detriment of Developer or any named insured, Professional shall immediately bring such insurance into compliance with the requirements of this Professional Services Agreement and deliver new certificates and endorsements (and policies if requested by Developer) to Developer upon the renewal, replacement or modification of such policy(ies). If Professional fails to comply with the foregoing requirements, then Developer reserves the right, but shall have no obligation, to procure such insurance and to deduct the cost thereof from any sum due Professional under this Professional Services Agreement or any Project Agreement. e. Levels of Coverage; Deductibles. Where a coverage limit amount specified in these Requirements is less than the current coverage limit generally carried by Professional for such insurance, Professional shall provide coverage at the higher coverage limit. Developer, in Developer's sole discretion, may approve commercially reasonable deductibles for the coverage limit amounts specified in these Insurance Requirements. If Professional, with Developer's approval, elects to maintain a deductible with respect to insurance required hereunder, Developer shall not be obligated to reimburse such deductible or pay Professional as a reimbursable cost any actual or imputed cost of maintaining the deductible. 2. Required Coverage. Professional shall maintain the following insurance for the periods provided herein: a. Workers' Compensation Insurance. Workers' Compensation Insurance, including without limitation Employer's Liability, at a minimum limit of $1,000,000 or the amount required to be carried by California law, whichever is greater, for all persons whom it employs in performing Services under this Professional Services Agreement or any Project Agreement. The foregoing insurance shall be in strict accordance with the requirements of the most current and applicable Worker's Compensation Insurance Laws in effect from time to time in California. Prior to the commencement of any portion of the Services, Professional shall deliver to Developer a waiver of subrogation endorsement from the insurer in form and substance satisfactory to Developer in Developer's sole discretion and precluding any such insurer from subrogating to any rights or claims of Professional against Developer and the City of Tustin ("City"). b. Commercial General Liability Insurance. Commercial General Liability Insurance on an "occurrence" basis, with deductibles reasonably acceptable to Developer, with a combined single limit for bodily injury and property damage of $1,000,000, or current limit carried, whichever is greater, covering Ongoing Operations, Independent Contractors, Blanket Contractual Liability, Broad Form Property Damage, Severability of Interest and Cross Liability clauses, and Personal Injury. An endorsement to such policy satisfactory to Developer in Developer's sole discretion and meeting the requirements set forth in the "Additional Insured Endorsement" section below shall be delivered to Developer within five (5) Business Days of entering into this Professional Services Agreement. C. Automobile Liability Insurance. Automobile Liability Insurance (including but not limited to owned and non -owned automobiles, as applicable) on an occurrence basis, covering all automobiles, trucks and other motor vehicles used by Professional in connection with the performance of the Services under this Professional Services Agreement and any Project Agreement, with a combined single limit for bodily injury and property damage of not less than $1,000,000, or current 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 limit carried, whichever is greater, and uninsured motorists coverage of $1,000,000 or limit carried, whichever is greater. d. Professional Errors and Omissions Liability Insurance. Professional shall maintain Professional Errors and Omissions Liability Insurance on a "claims made" basis, including but not limited to contractual and prior acts coverage, sufficient to cover the Services under each Project Agreement, with a coverage limit of not less than $1,000,000 per claim or current limit carried, whichever is greater, and with a deductible amount not greater than Fifty Thousand Dollars ($50,000.00). Such insurance shall be maintained during the term of this Professional Services Agreement and renewed annually for at least ten years thereafter, so long as such renewable coverage is available at commercially reasonable rates. Such insurance shall not contain any limitation or exclusion based upon the type or use of the structure or building, or for bodily injury or property damage based on subsidence, soil or earth movement, or mold. 3. Other Requirements. The following requirements shall also apply to the Services performed under this Professional Services Agreement and any Project Agreement: a. Additional Insured Endorsement. Developer and the parties described in this Section shall be included as additional insureds under the Commercial General Liability Insurance and, if such insurance is required to be maintained by Professional under this Exhibit, the Pollution Liability Insurance described above, pursuant to (and Consultant shall provide) an endorsement to such policy(ies) in form approved by Developer in Developer's sole discretion. The endorsement shall list the following parties as additional insureds: "Irvine Asset Group LLC and all persons and entities controlling, controlled by or under common control with any of such entities, together with their respective owners, shareholders, partners, members, divisions, officers, directors, employees, representatives and agents, and all of their respective successors and assigns; and the City of Tustin and its elected and appointed boards, officers, agents and employees." The policy coverage and endorsement shall not contain any exclusionary language or limitations that are applicable to any additional insured that are not applicable to the named insured. In addition to the listing of additional insureds, the endorsement shall also provide: "This insurance is primary and any other insurance maintained by such additional insureds is excess and shall not be required to contribute with this insurance as respects claims or liability caused by, arising out of or resulting from the acts or omissions or work of the named insured, or of others who performed work on behalf of the named insured. Any of such additional insureds may, at his/her/its election, pay any self-insured retention or deductible amount in connection with any claim or liability for which coverage is or may be provided by such insurance notwithstanding any other provision of the policy." b. Waiver of Subrogation. Any release and waiver of Professional contained in the Professional Services Agreement is intended to be binding upon the insurers of Professional and shall preclude any such insurer from subrogating to any Losses of Professional against Developer or the City. C. Professional's Subconsultants' Insurance. Professional shall require by contract that each and every subconsultant shall obtain and maintain insurance equal to that required to be carried by Professional. Such agreement to provide insurance between Professional and Professional's 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 subconsultants shall make Developer an express third party beneficiary to Professional's agreement with Professional's subconsultants. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT M LIEN RELEASE REQUIREMENTS A. Progress Payment Applications to City With each Progress Payment Application, Developer (the general contractor) will submit to the City: Conditional and Unconditional Lien Releases from Developer as to the work performed during the prior period; 2. Conditional and/or Unconditional Lien Releases from all subcontractors and suppliers in accordance with the "Progress Billing" requirements on page 2 of this Exhibit. B. Final Payment Applications to City With each Final Payment Application, Developer (the general contractor) will submit to the City: 1. Conditional Lien Release from Developer as to the completed work. (Unconditional lien release from Developer to be given to City within 15 Business Days of Developer's receipt of final payment from City.) 2. Conditional and Unconditional Lien Releases from all Subcontractors (other than from subcontractors for which an unconditional lien release has previously been given to City) in accordance with the "Final Retention Billings" requirements on page 2 of this Exhibit. Developer acknowledges that the City will not provide a final payment to Developer until unconditional lien releases from all Subcontractors and Sub -subcontractors have been provided by Developer. Note: Original (wet signature) or fax copies of releases are acceptable for Progress Payment and Final Payment Applications. N-1 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 IRVINE ASSET GROUP LLC — Lien Release Requirements for Bonded Construction Contracts A. Progress Billings: 1. Developer shall obtain conditional and unconditional releases from Subcontractor, plus conditional and unconditional lien releases for all Sub -subcontractors as requested by Developer. 2. Sub -subcontractor releases will generally be required as follows: a. Conditional lien releases from all Sub -subcontractors performing 5% or more of the work as designated on the Exhibits to the Construction Contract; and b. Conditional lien releases from any Sub -subcontractors performing less than 5% of the work as requested by Developer. 3. Conditional Lien Releases are required from any Sub -subcontractors listed on the Subcontractor's current (PC -4) billing form that have unpaid invoices at the time the progress billing is submitted by Subcontractor. If one or more of the listed Sub -subcontractors have no unpaid invoices, Subcontractor shall submit with its progress billing package either: a. A $0 release from such Sub-subcontractor(s); or b. A letter from Subcontractor attesting that such Sub-subcontractor(s) have no unpaid invoices for the current billing period. B. Final Retention Payment Billings: 1. In addition to its own conditional and unconditional releases, Subcontractor must provide conditional releases for any Sub -subcontractors noted on the PC -4 billing form and others who have filed a California Preliminary Notice. A list of Sub -subcontractors who have filed a Preliminary Notice can be obtained from the Developer Finance Department. 2. In order for the Final Payment request to be considered complete, all requested lien releases must be provided. 3. Joint checks will be cut for any Sub -subcontractors whose lien releases show a balance due, unless Subcontractor notifies Developer in writing that there is a dispute between Subcontractor and a Sub -subcontractor, in which event no check will be issued with respect to such Sub -subcontractor. If Subcontractor is able to resolve the dispute within 10 Business Days, Developer will issue the joint check to Subcontractor and the applicable Sub - subcontractor; otherwise, Subcontractor must submit the payment request again in the next billing cycle. N-2 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT N PAYMENT REOUEST SUBNHTTAL PROCEDURES In connection with Payment Requests submitted by Developer to the City for progress payments under the Reimbursement Agreement, Developer shall provide the following: ❑ A billing report that identifies subcontractor and supplier invoices paid by Developer for each Improvement and not previously reimbursed by the City ❑ Copies of subcontractor and supplier invoices from scanned images (invoice package includes Subcontractor's/Supplier's invoice, Developer billing form (PC -4), and Lien Releases in accordance with Developer's policy) ❑ Copies of all fully -executed consultant contracts, construction contracts and related change orders ❑ A check register showing proof of payment for all cleared checks ❑ Copies of fully -executed Concurrence Letter and/or Potential Change of Work (PLOW) forms as attached to respective contracts and change orders ❑ Billing backup by contract (contract with Concurrence Letter, change orders with PCOW, invoice packages) ❑ Once a contract or change order has been submitted in a Payment Request the first time, it does not have to be provided on subsequent Payment Requests (only invoice backup is provided) ❑ Invoice & Payment Summary per Exhibit I-1 ❑ Completed Payment Request form (note: the Payment may be submitted electronically by PDF copy to the City (Developer shall retain a hard copy for Developer files) 0-1 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT O FORM OF PAYMENT BOND [See attached) P-1 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Bond No. Amount Premium CITY OF TUSTIN PUBLIC CONTRACT LABOR AND MATERIALS PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS: That Irvine Asset Group LLC, a California limited liability company and its successors and assigns, as and hereinafter referred to collectively as "Principal', and a corporation organized and existing under the laws of the State of , and duly authorized to transact surety business in the State of California, as and hereinafter referred to as, "Surety", are held and firmly bound unto the City of Tustin hereinafter referred to as the "City', in the sum of $ for payment of which Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and severally as follows: THE CONDITION OF THE ABOVE OBLIGATION IS THAT: WHEREAS, Principal has entered into that certain Infrastructure Construction and Reimbursement Agreement by and between City and Developer dated , with the City to do and perform the following, generally described work, which is more particularly described in said contract for the construction of: WHEREAS, Principal shall commence and complete the construction and installation of such improvements provided in said contract; and NOW THEREFORE, if Principal shall pay the Contractor, his subcontractor, and all persons renting equipment or furnishing labor or materials to them for such improvements, for the full cost of such improvements and submit amounts due under the State Unemployment Insurance Act with respect to such labor, then this obligation shall be null and void. PROVIDED, HOWEVER, if Principal shall not pay the subcontractor and all persons renting equipment or furnishing labor or materials to them for such improvements for the full cost of such improvements, or if Principal fails to submit amounts due under the State Unemployment Insurance Act with respect to such labor, then Surety will pay for the same in an amount not exceeding the sum set forth above, which amount shall inure to the benefit of all persons named in Civil Code Section 9100. PROVIDED FURTHER, HOWEVER, that Surety stipulates and agrees that no change, extension of time, alteration or modification of the contract documents or of the work to be performed there under shall in any way affect its obligation on this bond and it does hereby waive notice of any such change, extension of time, alteration or modification of the contract documents or of the work to be performed there under; and P-2 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 PROVIDED FURTHER, that in case suit is brought upon this bond by the City or any other person named in Civil Code Section 9100 who may bring an action on this bond, a reasonable attorney's fee, to be fixed by the Court, shall be paid by Principal and Surety. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 IN WITNESS WHEREOF, Principal and Surety have caused these presents to be duly signed and sealed day of ,20 . SURETY: (SEAL) APPROVED AS TO FORM: City Attorney (Name) Attorney -in -Fact C Address of Surety: PRINCIPAL: (SEAL) TITLE: APPROVED AS TO CONTENT: Date City Engineer 1619045.3 (Name) Address of Principal: DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Note: Attach proper acknowledgments for both Surety & Principal. 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT P FORM OF PERFORMANCE BOND [See attached) 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Bond No. Amount. Premium CITY OF TUSTIN PUBLIC CONTRACT FAITHFUL PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That , as and hereinafter referred to collectively as "Principal' and a corporation organized and existing under the laws of the State of , and duly authorized to transact surety business in the State of California, as, and hereinafter referred to as, "Surety", are held and firmly bound unto the City of Tustin, a California municipal corporation ("City") and Irvine Asset Group LLC, a California limited liability company" ("Developer"), as and hereinafter referred to collectively as "Obligees", in the sum of $ for payment of which Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and severally as follows: THE CONDITION OF THE ABOVE OBLIGATION IS THAT: WHEREAS, Principal has entered into a contract dated , 20 , with Developer to do and perform the following, generally described work, which is more particularly described in said contract for the construction of: which work is performed pursuant to that certain Infrastructure Construction and Reimbursement Agreement by and between City and Developer dated , WHEREAS, all of such improvements are to be constructed and installed in accordance with the plans and specifications described, referred to and incorporated in said contract; and WHEREAS, Principal shall commence and complete the construction and installation of such improvements as provided in said contract; and NOW, THEREFORE, if Principal shall faithfully perform all agreements contained in the aforesaid contract, then this obligation shall be null and void. PROVIDED, HOWEVER, if Principal shall not faithfully perform all agreements contained in the hereinabove described contract and all obligations, then this obligation shall remain in full force and effect. PROVIDED FURTHER HOWEVER, that Surety hereby stipulates and agrees that no change, extension of time, alteration or modification of the contract documents or of the work to be performed there under shall in any way affect its obligation on this bond and it does hereby waive notice of any such change, extension of time, alteration or modification of the contract documents or of the work to be performed there under; and 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 PROVIDED FURTHER, that in case suit is brought upon this bond by the Obligees or any other person who may bring an action on this bond, a reasonable attorney's fee, to be fixed by the Court, shall be paid by Principal and Surety. Q-3 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 IN WITNESS WHEREOF, Principal and Surety have caused these presents to be duly signed and sealed this _ day of , 20_ (SEAL) APPROVED AS TO FORM: City Attorney SURETY: IM • PRINCIPAL: N (SEAL) TITLE: APPROVED AS TO CONTENT: Date City Engineer (Name) Attorney -in -Fact Address of Surety: (Name) Address of Principal: Note: Attach proper acknowledgment for both Surety & Principal. Q-3 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT Q DEVELOPER BID AND AWARD PROCEDURES Developer shall use the following procedures in connection with the award of contracts for each Improvement: 1. Competitive Process. Any award of contracts related to the Improvements must be let through a competitive process. Developer shall solicit and secure no less than three competitive bids for any construction or consultant services provided in connection with the Improvements. 2. Bid Coordination Meeting. Developer shall hold a bid coordination meeting to scope and strategize on contract set-up, bsid schedule and contractor and consultant selection. 3. Bid Package. Developer shall prepare a formal bid package. 4. Pre -Bid Meeting Invitees. Developer shall invite the City, Engineers of Record and a minimum of 3 contractors and, if applicable, consultants to a pre-bid meeting. 5. Pre -Bid Meeting. Developer shall convene a formal pre-bid meeting with the parties identified in step 3 in attendance, each of whom shall receive a path to the bid package. Developer shall chair the pre-bid meeting, and shall have a printed agenda and have all attendees sign -in. Developer shall provide the consultants in attendance with a Request for Proposal (RFP) for their construction support services. The Engineer of Record shall present a high level overview of the project. Developer provides an overview of the administration of the bid process including the bid schedule (e.g., the date for bidders' questions, date for bid addendum, and date and time for bid opening) insurance and bonding requirements and prevailing wage requirements. 6. Bidders Questions. Contractors and Consultants submit bidders' questions to Developer formally via email in Word format. Developer shall forward questions to Engineer of Record, who shall type a bid addendum and email to Developer for issuance to the Contractors and Consultants. 7. Public Bid Opening. Developer shall conduct a public bid opening at in a specified conference room. Contractors and Consultants submit their bids / proposals to Developer (either via electronic bid submittal of pricing, or by hard copy pricing. If a bidder submits both electronic and hard copy pricing, then in event of conflict between the information submitted, the electronic copy shall prevail). The City shall be invited to the public bid opening, at which time the bids are opened, read out loud and recorded by hand onto a summary sheet. 8. Bid Summary. Developer's Contract Administrator shall review the bids and prepare a bid summary identifying the lowest responsible contractor and consultant bids. 9. Notification of Low Bidder. Developer's Contract Administrator shall call the low bidder (whether contractors or consultants) to let them know that they are the low bidder.* 10. Notification of Contractors/Consultants. Developer's Contract Administrator shall send an email to all contractors and consultants with low bid/proposal results.* R-1 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 11. Notification of City. Developer's Contract Administrator shall email the City the bid summary for initial concurrence. 12. Concurrence Letter. Developer's Contract Administrator shall prepare the Concurrence Letter for delivery to the City and shall assemble copies of bids and bid summary and submit to the City for formal approval/concurrence. 13. Notice to Proceed. After receipt of City approval or concurrence, Developer's Contract Administrator shall prepare Authorizations to Proceed, Notice to Proceed and Contracts for contractor and all consultants. *If requested by the City, this notification shall be delayed until after steps 12 and 13 have been completed. R-2 1619045.3 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 ORDINANCE NO. 1515 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING DEVELOPMENT AGREEMENT (DA) 2021- 0001 BETWEEN THE CITY OF TUSTIN AND IRVINE ASSET GROUP, LLC TO FACILITATE THE DEVELOPMENT OF A MIXED-USE DEVELOPMENT CONSISTING OF 137 RESIDENTIAL APARTMENT UNITS AND 7,000 SQUARE FEET OF COMMERCIAL SPACE ON AN APPROXIMATE 3.38 ACRE SITE LOCATED WITHIN THE RED HILL AVENUE SPECIFIC PLAN (RHASP) AT 13751 AND 13841 RED HILL AVENUE (APN 500-141-09 and 500-141-10). The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council finds and determines as follows: A. The Red Hill Avenue Specific Plan (RHASP) provides for the allocation of 500 additional residential units within the Specific Plan area. Of this total, 395 dwelling units are eligible for development within the Specific Plan area north of the 1-5. B. In July 2020, Craig Swanson, on behalf of Irvine Asset Group, LLC ("Applicant"), submitted a Residential Allocation Reservation (RAR) application to the City, requesting an allocation of 114 base residential units (does not include density bonus units) for the development of a mixed-use project containing 137 residential units, including a twenty (20) percent density bonus based upon the provision of six (6) very -low income rental units, and 7,000 square feet of retail commercial space at 13751 and 13841 Red Hill Avenue, consisting of two lots containing approximately 3.38 acres ("Project"). C. On November 12, 2020, the Community Development Director conducted a preliminary review and, in accordance with the RHASP, approved the 114 RAR, pending the timely submittal of an application for the Project Entitlements. D. That the proper application has been submitted by Applicant for the development of the Project. E. That Development Agreement (DA) 2021-0001 serves to strengthen the public planning process and provide for the orderly implementation of the General Plan and the RHASP, and certain assurances to the Developer and the City. DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Ordinance 1515 Page 2 of 5 F. That Section 65864 et seq. of the Government Code and Sections 9600 to 9619 of the Tustin City Code authorize the Tustin City Council to enter into a Development Agreement. In compliance with Tustin City Code Section 9611, the Tustin Planning Commission must make a recommendation on the proposed Development Agreement to the City Council. G. That a public hearing was duly called, noticed, and held on said application on July 27, 2021, by the Planning Commission. The Planning Commission adopted Resolution Nos. 4435 and 4436 recommending that the City Council adopt Ordinance 1515 and approve the Project. H. That a public hearing was duly called, noticed, and held on said application on August 17, 2021, by the City Council. That on October 16, 2018, the City Council certified the Final Program Environmental Impact Report SCH No. 2017041031 (FPEIR), including a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program for the RHASP in accordance with the requirements of the California Environmental Quality Act. The Project proposes the development of a site with uses that are consistent with the uses approved in the RHASP, General Plan, and zoning designations for the site and are also within the density and development assumptions that were evaluated in the RHASP FEIR for the site. As a result, the City of Tustin, as the Lead Agency, has prepared an Addendum to the RHASP Program EIR pursuant to the requirements of the California Environmental Quality Act (CEQA, Public Resources Code §§ 2100, et seq.) the regulations promulgated thereunder (14 California Code of Regulations §§ 15000, et seq., CEQA Guidelines). J. That the DA is supported by the following findings: 1. The Project is consistent with the objectives, policies, land uses and programs specified in the General Plan and the RHASP in that mixed- use developments that include a combination of commercial retail and/or office on the ground floor and residential uses on the upper floors in a vertical mixed-use format are permitted uses within the RHASP area and promotes citywide goals of encouraging economic development, business attraction and development within the RHASP. 2. That the Project is compatible with the uses authorized in the RHASP in that mixed-use urban development is envisioned in the area and similar and compatible uses exist and are envisioned within close proximity of the project site. 3. The Project is in conformity with the public necessity, public convenience, general welfare and good land use practices in that the development DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Ordinance 1515 Page 3 of 5 agreement incorporates public benefits in the form of two (2) pedestrian plazas, off-site parking on Red Hill Avenue, gateway signage at the southwest corner of San Juan Street and Red Hill Avenue, public art, and payment of park impact fees to fund park improvements within the RHASP and will provide options for housing to the City's housing stock. 4. That the project will not be detrimental to the health, safety, and general welfare. The project will comply with the RHASP, TCC and other regulations to ensure that the project will not be detrimental in any way. 5. That the project will have a positive fiscal impact on the City in that the provisions of the proposed DA and conditions of approval will ensure that the project will have a positive fiscal impact on the City 6. That the project will not adversely affect the orderly development of property in that the proposed project is orderly, well designed, and equipped with the necessary infrastructure and amenities to support future residents and businesses in the RHASP. SECTION 2. The City Council hereby approves Development Agreement 2021-0001 attached hereto as Exhibit A and subject to final approval of the City Attorney. SECTION 3. The City Manager is hereby authorized to take such actions, and execute such documents and instruments as deemed necessary or desirable to implement the terms of the DA and other documents as necessary. SECTION 4. Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this 7th day of September, 2021. LETITIA CLARK Mayor DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Ordinance 1515 Page 4 of 5 ERICA N. YASUDA City Clerk APPROVED AS TO FORM: DAVID E. KENDIG City Attorney STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) I, Erica N. Yasuda, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1515 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the 17th day of August, 2021, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the 7th day of September, 2021, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: ERICA N. YASUDA City Clerk DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 Ordinance 1515 Page 5 of 5 EXHIBIT A Development Agreement 2021-0001 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Clerk (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Tustin and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT (2021-_) between CITY OF TUSTIN and Irvine Asset Group, LLC 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 TABLE OF CONTENTS DRAFT 8127121 Page 1. Definitions............................................................................................................................3 2. General Provisions...............................................................................................................6 2.1 Binding Effect of Agreement; Authorized Use of Property....................................6 2.2 Developer Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement...................................6 2.3 Term.........................................................................................................................7 3. Development of Project.......................................................................................................8 3.1 Utilization of Residential Allocation Reservation: Pulling Permits and Commencement of Construction..........................................................8 3.2 Development Regulations; Developer's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals................................................................................................................. 8 3.3 Other Governmental or Quasi -Governmental Permits............................................9 3.4 No Conflicting Enactments......................................................................................9 3.5 Reservations of Authority......................................................................................10 4. Public Benefits...................................................................................................................12 4.1 Provision of Public Benefits..................................................................................12 4.2 Effect of Public Benefits Default...........................................................................12 5. Enforcement.......................................................................................................................13 6. Annual Review of Developer's Compliance With Agreement..........................................13 6.1 General...................................................................................................................13 6.2 Developer Obligation to Demonstrate Good Faith Compliance ............................13 6.3 Procedure...............................................................................................................13 6.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Developer's Default..................................................................................13 7. Events of Default...............................................................................................................13 7.1 General Provisions.................................................................................................13 7.2 City's Remedies......................................................................................................14 7.3 Developer's Remedies............................................................................................14 7.4 Waiver....................................................................................................................15 7.5 Additional City Remedy for Developer's Default.................................................15 7.6 No Personal Liability of City Officials, Employees, or Agents ............................15 7.7 Recovery of Legal Expenses by Prevailing Party in Any Action ..........................15 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 TABLE OF CONTENTS DRAFT 8127121 Page 8. Force Majeure....................................................................................................................15 9. Indemnity Obligations of Developer.................................................................................16 9.1 Indemnity Arising From Acts or Omissions of Developer....................................16 9.2 Third Party Litigation............................................................................................16 9.3 Environmental Indemnity......................................................................................17 9.4 Labor Laws............................................................................................................17 10. Assignment........................................................................................................................17 10.1 Permitted Transfers................................................................................................17 10.2 City Approval of Transferee..................................................................................18 10.3 Ongoing Liability of Transferor.............................................................................18 11. Mortgagee Rights...............................................................................................................19 11.1 Encumbrances on Property....................................................................................19 11.2 Mortgagee Protection.............................................................................................19 11.3 Mortgagee Not Obligated......................................................................................19 11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure...............................19 12. Miscellaneous Terms.........................................................................................................20 12.1 Notices...................................................................................................................20 12.2 Project as Private Undertaking...............................................................................20 12.3 Cooperation............................................................................................................21 12.4 Estoppel Certificates..............................................................................................21 12.5 Rules of Construction............................................................................................21 12.6 Time Is of the Essence...........................................................................................21 12.7 Waiver....................................................................................................................21 12.8 Counterparts...........................................................................................................21 12.9 Entire Agreement...................................................................................................22 12.10 Severability............................................................................................................22 12.11 Developer Deposit.................................................................................................22 12.12 Construction...........................................................................................................23 12.13 Successors and Assigns; Constructive Notice and Acceptance .............................23 12.14 No Third Party Beneficiaries.................................................................................23 12.15 Applicable Law and Venue....................................................................................23 12.16 Section Headings...................................................................................................24 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 TABLE OF CONTENTS DRAFT 8127121 Page 12.17 Incorporation of Recitals and Exhibits..................................................................24 12.18 Recordation............................................................................................................24 12.19 Authority to Execute..............................................................................................24 Exhibit A Legal Description of Property Exhibit B Site Plan Exhibit C On Street Parking Plan Exhibit D Gateway Sign 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DEVELOPMENT AGREEMENT (2021-) (Pursuant to California Government Code sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the "Agreement') is dated for reference purposes as of the day of , 2021, and is being entered into by and between the CITY OF TUSTIN ("City") Irvine Asset Group, LLC, a California limited liability company ("Developer"). City and Developer are sometimes collectively referred to in this Agreement as the "Parties" and individually as a " Pte." All terms defined in the Agreement shall have the same meaning when used herein. RECITALS A. Developer has an equitable interest in real property constituting 3.389 aces located in the City of Tustin, County of Orange, State of California, located at 13751/13841 Red Hill Avenue in the Red Hill Avenue Specific Plan (RHASP) (APN 9 500-141-09 & 500-141-10 ) as legally described on Exhibit A and depicted on Exhibit B attached to this Agreement (the "Property'). The Property is owned by WASL Tustin Investors, LLC ("WASL"), and Developer is in escrow to acquire the Property from WASL. B. Developer is proposing to develop the Property as a mixed -used development with 137 residential units (including density bonus units) and 7,000 square feet of commercial uses (as further defined in Section 1 below, the "Project'). C. In order to encourage investment in, and commitment to, comprehensive planning and strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864- 65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. D. On December 3, 1984, the City Council adopted Ordinance No. 923, codified at Section 9600 et seq. of the Tustin Code Regarding Development Agreements (the "Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance. E. Developer shall provide public benefits as provided in this Agreement as consideration for this Agreement. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 F. The following land use entitlements and agreements for the Project are being adopted and approved by the City Council concurrently with its approval of this Agreement ("Applicable Approvals"): (1) Final Approval of Residential Allocation Reservation (RAR) 2020- 0001, (114 base residential units). (2) Design Review (DR) 2021-0002_ (3) Development Agreement 2021-0001_. (4) Subdivision (SUB) 2021-0001_/ Vesting Tentative Tract Map (TTM) No. _17822_ (5) Density Bonus and Voluntary Workforce Housing Incentive Agreement. G. City has determined that this Agreement and the Project are consistent with the City's General Plan and that the Development Agreement complies with the findings established by the Development Agreement Ordinance, in that the Agreement: 1. Is consistent with the objectives, policies, general land uses and programs specified in the General Plan. 2. Is compatible with the uses authorized in the district in which the real property is located. 3. Is in conformity with the public necessity, public convenience, general welfare, and good land use practices. 4. Will not be detrimental to the health, safety, and general welfare. 5. Will not adversely affect the orderly development of Property. 6. Will have a positive fiscal impact on the City. H. On , 2021 City's Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. I. On , 2021, the City Council held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Developer, and members of the public. On , 2021, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. (the "Adopting Ordinance"), finding this Agreement to be consistent with the City of Tustin General Plan and approving this Agreement. and authorizing its execution. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 AGREEMENT NOW, THEREFORE, City and Developer agree as follows: Definitions. In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 7.7 of this Agreement. "Adopting Ordinance" shall have the meaning ascribed in Recital I of this Agreement. "Agreement" shall mean this Development Agreement. "Agreement Date" shall mean the date this Agreement is recorded in the Office of the Orange County Recorder. "Applicable Approvals' shall have the meaning ascribed in Recital F of this Agreement. " CEQA" shall mean the California Environmental Quality Act (California Public Resources Code sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 et seq.), as the same may be amended from time to time. "City" shall mean the City of Tustin, a California city, and any successor or assignee of the rights and obligations of the City of Tustin hereunder. "City Council" shall mean the governing body of the City of Tustin. "City's Affiliated Parties" shall have the meaning ascribed in Section 9.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 9.1 of this Agreement. "Cure Period" shall have the meaning ascribed in Section 7.1 of this Agreement. "Damages" shall have the meaning ascribed in Section 7.3 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 7.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Developer" shall mean Irvine Asset Group, LLC, a California limited liability company, and any successor or assignee to all or any portion of the right, title, and interest of the Project in and to ownership of all or a portion of the Property. "Development Agreement Ordinance" shall mean the Chapter 6, Part 1, Section 9600 et seq. of the Tustin City Code. "Development Agreement Statute" shall mean California Government Code sections 65864-65869.5, inclusive, as the same may be amended from time to time. "Development Exactions" shall mean the requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of development of the Project on the environment or other public interests, except as specifically excluded from such definition pursuant to Section 3.5.4. "Development Limitation" shall have the meaning ascribed in Section 2.3.3. "Development Plan" shall mean all of the land use entitlements, approvals and permits approved by the City for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such land use entitlements, approvals and permits include, without limitation, the Development Regulations, to the extent provided under this Agreement, the Applicable Approvals and all conditions of approval and all mitigation measures approved for the Project on or before the Agreement Date. "Development Regulations' shall mean the following regulations as they are in effect as of the Effective Date and to the extent they govern or regulate the development of the Property: the General Plan; the Development Plan; and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to development of the Project on the Property during the Term of this Agreement that are set forth in the Red Hill Avenue Specific Plan and the Tustin City Code dealing with buildings and construction, subdivisions and inclusionary housing, and planning, zoning and density bonus. Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the date that is thirty (30) days after the date the Adopting Ordinance is approved by the City Council. Promptly after the Effective Date occurs, the Parties 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Effective Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et SeMc ., as amended ("CERCLA'); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et SeMc ., as amended ("RCRA'); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et SeMC ., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et SeMC ., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et SeMC . "General Plan" shall mean City's General Plan in effect on the Effective Date. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 7.1 of this Agreement. "P�M" or "Parties" shall mean either City or Developer or both, as determined by the context. "Project" shall mean all on-site and off-site improvements that Developer is authorized and/or required to construct with respect to the Property, as provided in this Agreement, the Applicable Approvals, and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law in order to carry out the Development Plan. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 "Property" shall have the meaning ascribed in Recital A of this Agreement. "Public Benefits" means those public benefits to be provided by the Developer and the Project as described in Section 4 of this Agreement that comprise enforceable additional consideration to City for this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Developer is required to obtain to Develop the Project on and with respect to the Property after the Effective Date consistent with the Development Regulations and this Agreement, with the understanding that except as expressly set forth herein City shall not have the right subsequent to the Agreement Date and during the Term of this Agreement to adopt or impose requirements for any such Subsequent Development Approvals that do not exist as of the Agreement Date. "Term" shall have the meaning ascribed in Section 2.3.1 of this Agreement. "Termination Date" shall have the meaning ascribed in Section 2.3.2 of this Agreement. "Transfer" shall have the meaning ascribed in Section 10.1 of this Agreement. 2. General Provisions. 2.1 Binding Effect of Agreement; Authorized Use of Property. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement and the Development Regulations and the Applicable Approvals, which establish the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings on the Property and provisions for reservation and dedication of land for public purposes. For avoidance of doubt, the permitted uses on the Property are mixed use commercial and residential development in connection with such uses as described by the Applicable Approvals. 2.2 Developer Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. Developer and each person executing this Agreement on behalf of Developer hereby represents and warrants to City as follows: (i) that Developer has an equitable interest to acquire fee simple title to the Property as of the Effective Date; (ii) if Developer or any co-owner comprising Developer is a legal entity that such entity is duly formed and existing and is authorized to do business in the State of California; (iii) if Developer or any co-owner comprising Developer is a natural person that such natural person has the legal right and capacity to execute this Agreement; (iv) that all actions required to be taken by all persons and entities comprising Developer to enter into this Agreement have been taken and that Developer has the legal authority to enter into this Agreement; (v) that Developer's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Developer or any person or entity comprising Developer has to any third party; (vi) that neither Developer nor any co-owner comprising Developer is the subject of any voluntary or involuntary bankruptcy or insolvency petition; and (vii) that Developer has no actual knowledge of any 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 pending or threatened claims of any person or entity affecting the validity of any of the representations and warranties set forth in clauses (i) -(vi), inclusive, or affecting Developer's authority or ability to enter into or perform any of its obligations set forth in this Agreement. 2.3 Term. 2.3.1 The term of this Agreement (the "Term") shall commence on the Effective Date and shall extend until the Termination Date (as defined below). Following the Termination Date, this Agreement shall be deemed terminated and of no further force and effect; provided however, that said termination of the Agreement shall not affect any right or duty emanating from the Applicable Approvals or any Subsequent Development Approvals. 2.3.2 The "Termination Date" shall be the earliest of the following dates: (i) the fifth (5th) anniversary of the Effective Date, which may be extended pursuant to Sections 2.3.3 or 2.3.4 (ii); (ii) the date of termination of this Agreement by the City in accordance with any of Articles 6, 7 and/or 8 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; (iii) the date upon which Developer completes the Project and the Public Benefits in accordance with the terms of this Agreement, the Applicable Approvals and the Development Regulations, including Developer's complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final occupancy permits for residential units on the Property, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required public improvements; (iv) the date of entry of a final court judgment not subject to further appeal setting aside, voiding or annulling the adoption of the Adopting Ordinance or any of the Applicable Approvals; or (v) the date of adoption of a referendum measure overriding or repealing the City ordinance approving this Agreement. 2.3.3 Notwithstanding the Parties' expectation that there will be no limit or moratorium upon the Project's development or the issuance of building or other development related permits ("Development Limitation") during the Term, the Parties understand and agree that various third parties may take action causing a de facto Development Limitation. Consequently, the Term and the obligations imposed pursuant to this Agreement and the expiration date of all Applicable Approvals shall be extended day for day for any delay arising from or related to a timely filed lawsuit challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Applicable Approvals, until the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, and/or the Applicable Approvals, whether such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement. Each Party shall promptly notify the other Party to this Agreement upon learning of any Development Limitation. 2.3.4 Unless otherwise agreed by the City Council in its sole discretion, the maximum Term of this Agreement shall be five (5) years from the Effective Date, subject to (i) any tolling(s) of the Term, pursuant to Section 2.3.3 of the Agreement; or (ii) the issuance of one two (2) year mandatory automatic extension of the Term, if Developer has pulled the fiftieth (50th) building permit for the Project prior to the expiration of the Term. 2.3.5 Notwithstanding any provision to the contrary herein, in the event that, for any reason whatsoever, Developer fails to acquire fee simple title to the Property ("Fee Title") 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 within 180 days following the Effective Date ("Fee Title Deadline"), Developer or City may elect, in each Party's sole and absolute discretion, and upon written notice to the other Party within sixty (60) days following the Fee Title Deadline, to terminate this Agreement and the Applicable Approvals. Effective upon such termination by either Party, this Agreement and the Applicable Approvals shall be of no further force or effect. 3. Development of Project. 3.1 Utilization of Residential Allocation Reservation: Pulling Permits and Commencement of Construction. Following final approval of RAR 2020-0001 and the Applicable Approvals, i.e., Effective Date, all construction related permits for the Project, including demolition, grading, and building permits, must be obtained within 180 days ("First Post Entitlement Period"). Following building permit issuance, construction must commence within 180 days. Time extensions may be considered at the discretion of the City of Tustin Community Development Director ("Director"). Notwithstanding the foregoing, the Director hereby agrees to automatically extend the time frame of the First Post Entitlement Period an additional 360 days if Developer pulls a demolition and precise grading permit prior to the expiration of the First Post Entitlement Period. Developer's precise grading permit application shall comply with all requirements specified in Tustin Municipal Code section 8909. City shall act in good faith to issue the precise grading permit within 90 days of Developer's precise grading application, provided Developer submits a complete application and is responsive to corrections. If the application is incomplete and requires corrections, the Director will notify Developer in writing of the remaining items or corrections and specify a timeline for Developer to respond to outstanding corrections ("Correction Notice"). Concurrently with the Correction Notice, and any subsequent Correction Notice(s), the First Post Entitlement Period deadline shall be automatically extended by thirty (30) days. The allocation of the 114 base residential units to the Project shall expire and the units redeposited into the Residential Allocation Bank for use by other projects if the construction related permits are not obtained within the required time limits or approved for extension; or the permits are not utilized, as evidenced by the commencement of construction, within 180 days following issuance of the permits. 3.2 Development Regulations, Developer's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals. 3.2.1 Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Developer shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations, the Applicable Approvals, the Workforce Plan and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals that are required for Development of the Project as of the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 the Project, and in this regard, as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Developer's rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the date on which the City Council approves the Adopting Ordinance. Concerning any denials of any Subsequent Development Approvals, the City shall base such denials solely upon an application of the Development Regulations, the Applicable Approvals or this Agreement. 3.2.2 Developer has expended and will continue to expend substantial amounts of time and money planning and preparing for Development of the Project. Developer represents and City acknowledges that Developer would not make these expenditures without this Agreement, and that Developer is and will be making these expenditures in reasonable reliance upon its vested rights to Develop the Project as set forth in this Agreement. 3.2.3 Developer may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, provided that the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic and, in addition, Developer may apply to City for approval of minor amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with the Tustin City Code. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 3.3 Other Governmental or Quasi -Governmental Permits. Developer shall apply for such other permits and approvals as may be required by non -City governmental or quasi -governmental agencies having regulatory jurisdiction over the Project (such as public utilities or special districts, or other federal or state resource agencies) to the extent required for the development of, or provision of, services and facilities to the Project as set forth in the Development Plan. The City shall cooperate with and assist Developer in obtaining such permits and approvals, and, where necessary in making application for such approvals or permits. Developer shall be solely responsible for all costs and shall be responsible for the processing of all such permits. 3.4 No Conflicting Enactments. Except to the extent City reserves its discretion as expressly set forth in this Agreement (including, without limitation, as set forth in Section 3.5 and Article 4 of this Agreement), during the Term of this Agreement, the City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Agreement Date to the extent it conflicts with this Agreement. In 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Developer shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Developer deems appropriate within the exercise of Developer's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement, the Applicable Approvals and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Agreement Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Developer's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 3.5 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 3.5 shall apply to and govern the Development of the Project on and with respect to the Property. 3.5.1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City-wide or to all other properties similarly situated in City. 3.5.2 Processing and Permit Fees. City shall have the right to charge and Developer shall be required to pay (a) all applicable processing and permit fees to cover the reasonable cost to City of (i) processing and reviewing applications and plans for any Applicable Approvals, Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, plan checking, site review and approval, administrative review, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting Project applications, plans and specifications, (ii) inspecting the work constructed or installed by or on behalf of Developer, and (iii) monitoring compliance with any requirements applicable to Development of the Project, in each case at the rates in effect at the time fees are due and (b) all costs incurred by the City performance of necessary studies and reports in connection with the foregoing and its obligations under this Agreement (collectively, the "City Processing Fees"). 3.5.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Developer has consented in writing to the regulations, shall apply to the Property. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 3.5.4 Development Exactions Applicable to Property. During the Term of this Agreement, unless otherwise prohibited or limited under state law, Developer shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Developer and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction for the Project has been established and fixed by City in this Agreement or the conditions of approval for any of the Applicable Approvals or Development Regulations approved on or before the Effective Date, the City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Developer's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 3.5.5 hereinbelow). Notwithstanding any other provision of this Agreement, nothing in this Agreement is intended or shall be deemed to vest Developer against the obligation to pay any of the following (which are specifically excluded from the definition of "Development Exactions") in the full amount that would apply in the absence of this Agreement: (i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, park fees and the New Construction Tax (as described in Section 2601 of the Tustin City Code.) 3.5.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Developer's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Developer does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Developer shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Developer shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of Developer as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Developer. City also agrees to process in a prompt manner Developer's proposed changes to the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 of such changes by City shall be subject to the sole discretion of City, consistent with this Agreement. 3.5.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Developer's vested rights under this Agreement. 3.5.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted by City and any local amendments to those codes adopted by the City, including without limitation building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 3.5.8 Public Works Improvements. To the extent Developer constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 3.5.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that City undertakes to provide such services to other similarly situated new developments in the City of Tustin as and when service connections are provided and service commences). 4. Public Benefits 4.1 Provision of Public Benefits. Developer shall provide the following public benefits which shall constitute additional consideration for this Agreement for the benefit of the City ("Public Benefits"): 4.1.1 Public Amenities. Installation of two pedestrian plazas; one at the main entryway/drive aisle that flanks either side of the main drive aisle and a secondary plaza at the southwest corner of San Juan Avenue and Red Hill Avenue. 4.1.2 Off-site Parking. Provision of twelve (12) on -street vehicular parking spaces immediately adjacent to Red Hill Avenue in front of the proposed project. If the City opts 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 to widen the Red Hill Avenue roadway at a future date, Developer will be required to remove these twelve (12) parking spaces at its sole cost and expense and to the reasonable satisfaction of the City. 4.1.3 Gateway Signage. Construction and installation of gateway signage designating the corridor as the beginning of the Red Hill Avenue Specific Plan area at the southwest corner of San Juan Street and Red Hill Avenue. Said signage shall be subject to the review and approval by the Community Development Department. 4.1.4 Public Art. As addressed in Section 5.6.3 of the RHASP, Developer shall agree to provide an art program that may consist of a wall mural located on the south elevation of the Red Hill architectural tower of the Project facing the 55 Freeway ("Mural"), or other public art, as described herein. The Mural and other public art is collectively the "Public Art". An art consultant, shall be responsible for selecting the Public Art for the Project ("Art Program Consultant"). The Art Program Consultant may use other consultants to perform portions of the Mural or other Public Art. Developer and the Art Program Consultant shall use reasonable efforts to solicit input from the City regarding the selection of the Public Art. Per Tustin City Code section 9404(b)(4), if a Mural is chosen as the Public Art, the Mural will require approval of a Conditional Use Permit. Other Public Art shall be subject to review and approval by the Director. Developer shall provide the Public Art application/submission to the City within 270 days of the issuance of the Project's first building permit, The Parties agree to act in good faith to agree upon the Public Art. If the Director does not approve the Public Art within 90 days of submission by Developer, then Developer, at its sole option, may choose to pay the City $100,000 to be used by the City to provide public art outside the Project site. Such payment shall constitute complete compliance with this Section 4.14. If the Parties agree upon the Public Art, the Public Art shall be completed prior to issuance of the Project's final certificate of occupancy. 4.1.5 Park Impact Fees. Pursuant to the provisions of the Tustin Municipal Code, Developer is obligated to pay park impact fees. City agrees that it shall use good faith efforts to invest the park fees paid by Developer to fund improvements to Pine Tree Park, Frontier Park and/or other park improvements within the Red Hill Avenue Specific Plan area. In addition, as specified in the Density Bonus and Voluntary Workforce Housing Incentive Agreement between the Parties, City agrees that it shall not collect park fees from Developer for the 6 Very Low income housing units of the Project. 4.2 Effect of Public Benefits Default. Notwithstanding any other provision of this Agreement to the contrary, if any payment under this Article 4 is not made or any obligation requiring performance is not timely performed by Developer. Subject to the provisions of Section 7.1 of this Agreement, the City may withhold further issuance of building permits or other approvals, including final maps, for the Project and the Property, until such time as Developer has made the required payment or undertaken the required performance. 5. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code Section 65869.5, this Agreement shall be enforceable 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property. 6. Annual Review of Developer's Compliance With Agreement. 6.1 General. City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code Section 65865.1 and Tustin City Code Section 9617, as the same may be amended from time to time. Developer (including any successor to the owner executing this Agreement on or before the date the Effective Date) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 6.2 Developer Obligation to Demonstrate Good Faith Compliance. During each annual review by City, Developer is required to demonstrate good faith compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term. 6.3 Procedure. The City shall conduct its annual review of the Agreement in accordance with Tustin City Code Section 9617, as the same may be amended from time to time. 6.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Developer's Default. The annual review procedures set forth in this Article 6 shall not be the exclusive means for City to identify a Default by Developer or limit City's rights or remedies for any such Default. 7. Events of Default. 7.1 General Provisions. In the event of any default, breach, or violation of the terms of this Agreement ("Default'), the Party alleging a Default shall have the right to deliver a written notice (each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the Default relates to the failure to timely make a monetary payment due hereunder and thirty (30) days in the event of non -monetary Defaults) in which the Default must be cured (the "Cure Period"). Developer or City, as applicable, shall have the ability to contest the validity of the Default for a period of five (5) days after Developer or City receives the written Notice of Default. The Parties shall meet and confer in good faith for fifteen (15) days to attempt to resolve the validity of the Notice of Default. If the Parties are unable to resolve the validity of the Notice of Default after this meet and confer 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 period, the Cure Period timeframes specified in this Section 7.1 shall apply During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If however, a non -monetary Default cannot be cured within such thirty (30) day period, as long as the defaulting Party does each of the following: i. notifies the non -defaulting Party in writing with a reasonable explanation as to the reasons the asserted Default is not curable within the thirty (30) day period; ii. notifies the non -defaulting Party in writing of the defaulting Party's proposed course of action to cure the Default; iii. promptly commences to cure the Default within the thirty (30) day period; iv. makes periodic written reports to the non -defaulting Party as to the progress of the program of cure; and V. diligently prosecutes such cure to completion, then the non -defaulting Party shall grant in writing the defaulting Party such additional time as determined by the non -defaulting party as reasonably necessary to cure such Default. 7.2 City's Remedies. In the event of a Default by Developer under this Agreement that is not cured during the Cure Period, City shall be entitled to any or all of the following remedies: (1) Seeking mandamus or special writs, injunctive relief, or specific performance of this Agreement; (2) Modifications or termination of this Agreement; or (3) Seeking any other remedy available at law or in equity, provided, however, except as provided in Section 7.7 below with respect to recovery of legal expenses, City agrees and covenants on behalf of itself and it successors and assigns, not to sue Developer for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application or effect of this Agreement, or for general, special, compensatory, expectation, anticipation, indirect, consequential, exemplary or punitive damages ("Damages") arising out of or connected with any dispute, controversy, or issues regarding the application or effect of this Agreement, the Applicable Approvals, the Development Plan, the Development Regulations, any Subsequent Development Approvals, or any permits or entitlements sought in connection with development or use of the Property or Project, or any portion thereof. City acknowledges that Developer would not have entered into this Agreement if Developer could be held liable for Damages for any default or breach arising out of this Agreement and that City has adequate remedies other than Damages, to secure Developer's compliance with its obligations under this Agreement. Therefore, City agrees that Developer, its officers, employees and agents shall not be liable for any Damages and that this Section shall apply to any successor, assignee or transferee of the Developer. The limitation of Damages specified in this Section 7.3 does not preclude City from recovering from Developer all costs and expenses, including attorneys' fees, specified in Section 7.7 of this Agreement. Furthermore, City, in addition to or as an alternative to exercising the remedies in this Section 7.2, 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 in the event of a material default by Developer, may give notice of its intent to terminate or modify this Agreement pursuant to Tustin City Code Section 9618, in which event the matter shall be scheduled for consideration and review by the City Council. The decision of the City Council shall be final, subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b). 7.3 Developer's Remedies. In the event of a Default by that City under this Agreement that is not cured during the Cure Period, Developer shall be entitled to any or all of the following remedies: (1) Seeking mandamus or special writs, injunctive relief, or specific performance of this Agreement; (2) Modifications or termination of this Agreement; or (3) Seeking any other remedy available at law or in equity, provided, however, except as provided in Section 7.7 below with respect to recovery of legal expenses, Developer agrees and covenants on behalf of itself and it successors and assigns, not to sue City for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application or effect of this Agreement, or for general, special, compensatory, expectation, anticipation, indirect, consequential, exemplary or punitive damages ("Damages") arising out of or connected with any dispute, controversy, or issues regarding the application or effect of this Agreement, the Applicable Approvals, the Development Plan, the Development Regulations, any Subsequent Development Approvals, or any permits or entitlements sought in connection with development or use of the Property or Project, or any portion thereof. Developer acknowledges that City would not have entered into this Agreement if City could be held liable for Damages for any default or breach arising out of this Agreement and that Developer has adequate remedies other than Damages, to secure City's compliance with its obligations under this Agreement. Therefore, Developer agrees that City, its officers, employees and agents shall not be liable for any Damages and that this Section shall apply to any successor, assignee or transferee of the Developer. The limitation of Damages specified in this Section 7.3 does not preclude Developer from City all costs and expenses, including attorneys' fees, specified in Section 7.7 of this Agreement. 7.4 Waiver. Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default. 7.5 Additional City Remedy for Developer's Default. In the event of any Default by Developer, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Developer's Default without recourse from Developer or its successors or assigns. 7.6 No Personal Liability of City or Developer Officials, Employees, or Agents. No City or Developer official, employee, or agent shall have any personal liability hereunder for a Default by City or Developer of any of its obligations set forth in this Agreement. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 7.7 Recovery of Legal Expenses by Prevailing Pa . in Any Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure Section 1033.5 or California Civil Code Section 1717 in the absence of this Agreement. These costs and expenses include court costs, expert witness fees, attorneys' fees, and costs of investigation and preparation before initiation of the Action. The right to recover these costs and expenses shall accrue upon initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. The maximum hourly rate for attorneys which are recoverable under this Section 7.7 is $200/hour. 8. Force Majeure. Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. Performance by any Party of its obligations hereunder shall be excused and the required date for performance thereof shall be extended day for day during any period of "Permitted Delay" as hereinafter defined. For purposes hereof, Permitted Delay shall mean delay beyond the reasonable control and without the fault of the Party claiming the delay (and despite the good faith efforts of such Party). Any Party claiming a Permitted Delay shall notify the other Party (or Parties) in writing of such delay within 30 days after the commencement of the delay, which notice shall specify the nature and estimated length of the Permitted Delay ("Permitted Delay Notice"). An extension of time hereunder for any Permitted Delay shall be for the period of the Permitted Delay and shall be deemed granted if the Party receiving the Permitted Delay Notice does not object to such extension in writing, as not complying with the provisions of this Section, within 15 days after receiving the Permitted Delay Notice. Upon such an objection, the Parties shall meet and confer within 30 days after the date of the objection in a good faith effort to resolve their disagreement as to the existence and length of the Permitted Delay. 9. Indemnity Obligations of Developer. 9.1 Indemnity Arising From Acts or Omissions of Developer. Except to the extent caused by the intentional misconduct or actively negligent acts, errors or omissions of City or one or more of City's officials, employees, agents, attorneys and contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorneys' fees, expert witness fees and court costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts, omissions, or operations of Developer or Developer's officers, agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Developer relating to the Property or pursuant to this Agreement. City shall have the right to select and retain counsel to defend any Claim filed against City and/or 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 any of City's Affiliated Parties, and Developer shall pay the reasonable cost for defense of any Claim. The indemnity provisions in this Section 9.1 shall be effective on the date on which the Adopting Ordinance is approved by the City Council and shall survive the Termination Date. Notwithstanding the foregoing, Developer's indemnity obligations specified in this Section 9.1 regarding Developer's design, construction or dedication of public improvements shall terminate one (1) year after City accepts Developer's offer of dedication of public improvements. 9.2 Third Pa . Litigation. In addition to its indemnity obligations set forth in Section 9. 1, Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, the Development Plan, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit or entitlement granted pursuant to this Agreement. Said indemnity obligation shall include, without limitation, payment of attorney's fees, expert witness fees, and court costs. City shall promptly notify Developer of any such Claim and City shall cooperate with Developer in the defense of such Claim. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in Developer's indemnity obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to minimize the total litigation expenses incurred by Developer. City's separate counsel's billing rates shall be identical to the rates City pays for its typical municipal litigation rates for legal challenges of the variety being defended. Provided that Developer has then paid in full all sums due to the City or its counsel incurred pursuant to this Section and otherwise fully performed its indemnity obligations hereunder, Developer shall be entitled to retain the same. The indemnity provisions in this Section 9.2 shall be effective on the date on which the Adopting Ordinance is approved by the City Council and shall survive the Termination Date. 9.3 Environmental Indemnity. In addition to its indemnity obligations set forth in Section 9. 1, from and after the date on which the Adopting Ordinance is approved by the City Council, Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation attorney's fees, expert witness fees, and court costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Developer in connection with Developer's Development of the Project. The aforementioned indemnity shall not apply (i) to any pre-existing Hazardous Substance which may have existed prior to Developer's acquiring fee simple title to the Property; (ii) if City was responsible for the creation of the Hazardous Substance; or (iii) if the City had prior actual knowledge of the existence of the Hazardous Substance as of the date of the Effective Date. The indemnity provisions in this Section 9.3 shall be effective on 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 the date on which the Adopting Ordinance is approved by the City Council and shall survive one (1) year beyond the Termination Date. 9.4 Labor Laws. Developer shall carry out the construction of the Project, including all improvements, in conformity with all Development Regulations including all applicable federal and state labor laws and regulations and shall investigate the applicability of and, if and to the extent applicable, pay prevailing wages meeting the requirements of such laws and regulations; provided that Developer reserves the right to reasonably contest such laws and regulations. Developer hereby agrees that, with respect to the Project, Developer shall be fully responsible for determining whether the foregoing wage requirements are applicable and agrees to indemnify, defend and hold the City and its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns free and harmless from and against any and all Claims arising from or related to compliance 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 requirements imposed by any applicable federal and State labor law. 10. Assignment. 10.1 Permitted Transfers. Developer shall have the right, upon approval of City, which approval shall not be unreasonably withheld, to sell, transfer or assign (hereinafter, collectively, a "Transfer") Developer's interest in this Agreement and the Property, in whole or in part, to a third party acquiring an interest or estate in the Property or any portion thereof (such successor, a "Permitted Transferee") and such successor, as of the effective date of the Transfer, shall become the "Developer" under this Agreement; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and each Transfer shall be made in strict compliance with the conditions precedent set forth in Sections 10.2 and 10.3. City shall promptly consider any Transfer request submitted by Developer. Notwithstanding the foregoing, Developer shall have the right to Transfer its interest in the Agreement to a "Developer Affiliate". A "Developer Affiliate" is an entity or person that is directly or indirectly controlling, controlled by, or under common control with Developer. In the case of a Transfer to a Developer Affiliate, Developer shall provide written notification to City prior to the completion of such a Transfer. 10.2 CityApproval of Transferee. Prior to the completion of any proposed Transfer, Developer (as transferor) shall: i. notify City, in writing, of such proposed Transfer and, in order to permit the City to make an informed decision to approve or disapprove the Transfer, provide to the City such financial statements and evidence of the proposed Transferee's fitness, experience and ability (or that of its senior managerial personnel) to comply with the obligations assumed; and 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 ii. deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Developer and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Developer assigns to the successor Developer and the successor Developer assumes from the transferring Developer all of the rights and obligations of the transferring Developer with respect to the Property, or interest in the Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed outside of the Property so Transferred that are a condition precedent to the successor Developer's right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property, or interest in the Property, no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Developer with respect to the balance of the Property. 10.3 Ongoing Liability of Transferor. Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and severally liable to City, together with the successor Developer, to perform all of the transferred obligations set forth in or arising under this Agreement unless there is full satisfaction of all of the following conditions, in which event the transferring Developer shall be automatically released from any and all obligations with respect to the portion of the Property so Transferred: (i) the transferring Developer no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Developer is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Developer has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in Section 10.2(b); and (iv) the successor Developer either (A) provides City with substitute security equivalent to any security previously provided by the transferring Developer to City to secure performance of the successor Developer's obligations hereunder with respect to the Property, or interest in the Property, or the portion of the Property so Transferred or (B) if the transferred obligation in question is not a secured obligation, the successor Developer either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor Developer has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. In the case of partial Transfers, a default under this Agreement by Developer shall not be considered or acted upon by the City as a default by the Permitted Transferee and shall not affect the Permitted Transferee's rights or obligations hereunder. Likewise, a default by a Permitted Transferee shall not be considered or acted upon by the City as a default by Developer and shall not affect Developer's retained rights and obligations hereunder. Notwithstanding the foregoing, if a breach of this Agreement involves an obligation jointly held by both Developer and a Permitted Transferee, the City may avail itself of the remedies specified in Sections 7.1 and 7.2 against both the Developer and Permitted Transferee. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 11. Mortgagee Rights. 11.1 Encumbrances on Property. The Parties agree that this Agreement shall not prevent or limit Developer in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 11.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 11.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 11.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Developer or other affirmative covenants of Developer, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance. 11.4 Notice of Default to Mortgagee, Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 6 of this Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and within sixty (60) days after receiving a Notice of Default with respect to a non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -monetary Default within sixty (60) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the sixty (60) -day period. In the case of a non -monetary Default that cannot with diligence be remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non - monetary Default within sixty (60) days and diligently prosecutes the cure to completion. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 12. Miscellaneous Terms. 12.1 Notices. Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited in the United States mail, certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Manager With a copy to: Woodruff, Spradlin Smart 555 Anton Boulevard, Ste 1200 Costa Mesa, CA 92626 Attn: David E. Kendig, Esq. TO DEVELOPER: Irvine Asset Group, LLC 4000 MacArthur Boulevard, East Tower, Suite 600 Newport Beach, CA 92660 Attn: Craig Swanson With a copy to: Allen Matkins, LLP 1900 Main Street, 5th Floor Irvine, CA 92614 Attn: John Condas, Esq. Either Party may change the address stated in this Section 12.1 by delivering notice to the other Party in the manner provided in this Section 12. 1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above. 12.2 Project as Private Undertaking. The Development of the Project is a private undertaking. Neither Party is acting as the agent of the other in any respect, and each Party is an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner of the property. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 12.3 Cooperation. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 12.4 Estoppel Certificates. At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. 12.5 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 12.6 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 12.7 Waiver. The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 12.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 12.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement. 12.10 Severability. The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of the benefits of this Agreement if any of Developer's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Developer shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Developer's obligations under this Agreement. The provisions of this Section 12.10 shall be effective on the date on which the Adopting Ordinance is approved by the City Council and shall survive the Termination Date. 12.11 Developer Deposit. Developer shall, within ten (10) business days following approval by the City of this Agreement, and as a condition to the effectiveness of this Agreement, deliver to the City in cash or cash equivalent funds, a deposit in the amount requested by the City based on the City's estimated City Processing Fees including staff time required to complete plan check and perform inspections (the "City Costs Deposit"), which amount shall be deposited by City in an account in a bank or trust company selected by the City and with no requirement that such account be interest bearing. If any interest is paid on such account, such interest shall accrue to any balances in the account for the benefit of the City. If at any time prior to the issuance of the final certificate of occupancy for a residential unit on the Property, the amount of funds in the City Costs Deposit account is depleted below Ten Thousand Dollars ($10,000), Developer shall be required to pay to the City each time an additional Twenty Thousand Dollars ($20,000) or such other amount as the City may specify as required in City's estimation to cover the cost of City Processing Fees, including as required to complete plan check and perform inspections, which shall be credited to the City Costs Deposit. Each such payment shall be deposited by the City into the City Costs Deposit account and shall be applied to City Processing Fees. The City Costs Deposit has been established to fund the City Processing Fees and may be used by the City for such purpose, and shall be depleted accordingly. Immediately upon incurring any City Processing Fees or costs or receipt of an invoice from third parties for same, the City shall have the right to deduct the amounts due it on account thereof from the City Costs Deposit The City Costs Deposit shall be retained by the City until the date of issuance of the final certificate of occupancy for a residential unit on the Property and the remaining amount of the City Costs Deposit then held by the City, if any, shall be promptly returned by the City to Developer thereafter, provided that the return of such funds 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 shall not terminate the obligations of Developer to pay all City Processing Fees arising or incurred prior to issuance of the final certificate of occupancy for the final residential unit on the Property. Developer shall pay any outstanding amounts due with respect to City Processing Fees to the City within thirty (30) calendar days following receipt of an invoice from the City therefor, provided that the City shall first apply the amount of the City Costs Deposit, if any, then held by it in satisfaction of such invoice, and shall reflect the amount of such credit on the invoice. 12.12 Construction. This Agreement has been drafted after extensive negotiation and revision. Both City and Developer are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Developer had the opportunity to be so represented and voluntarily chose to not be so represented. City and Developer each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning, and no principle or presumption of contract construction or interpretation shall be used to construe the whole or any part of this Agreement in favor of or against either Party. 12.13 Successors and Assigns; Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof, and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 12.13 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Article 10 or is a Permitted Transferee under this Agreement. 12.14 No Third Party Beneficiaries. The only Parties to this Agreement are City and Developer. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 12.15 Applicable Law and Venue. This Agreement shall be construed and enforced consistent with the internal laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 12.16 Section Headings. All Section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 12.17 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A, B C, and D are attached to this Agreement and incorporated by this reference as follows: [*** to be updated* * *] EXHIBIT DESIGNATION DESCRIPTION A Legal Description of Property B Site Plan C On Street Parking Plan D Gateway Sign 12.18 Recordation. The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code Section 65868.5. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. 12.19 Authority to Execute. The person or persons executing this Agreement on behalf of each Party warrants and represents that he or she/they have the authority to execute this Agreement on behalf of such Party and warrants and represents that he or she/they has/have the authority to bind such Party to the performance of its obligations hereunder. 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 12.20 Administrative Amendments. Any amendment to this Agreement which does not relate to the Term, permitted uses of the Project, provisions for the utilization of Residential Allocation Reservation, Development Exactions, the conditions, terms, restrictions and requirements relating to the Applicable Approvals or Public Benefits shall be considered an "Administrative Amendment". The City Manager or his/her assignee is authorized to execute Administrative Amendments on behalf of City and no action by the Planning Commission or the City Council (and no noticed public hearing) shall be required before the Parties may enter into an Administrative Amendment. However, if in the judgment of the City Manager it is determined that a proposal is not an Administrative Amendment or that the proposed Administrative Amendment should be considered by the approval bodies of the City, the City's Planning Commission shall conduct a noticed public hearing to consider whether the Administrative Amendment should be approved or denied, and shall make a recommendation to the City Council on the matter. The City Council shall conduct a noticed public hearing to consider the request and the Planning Commission's recommendation on the matter. At the conclusion of the public hearing, the City Council may approve, deny, or conditionally approve the amendment. [Signature page follows] 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT ATTEST: Erica N. Yasuda, City Clerk APPROVED AS TO FORM: David E. Kendig, City Attorney 1596301.2 "DEVELOPER" Irvine Asset Group, LLC, a California limited liability company By: Craig Swanson, [insert title] "CITY" CITY OF TUSTIN By: Letitia Clark, Mayor DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT 8127121 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Orange ) On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Orange ) On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [Need to Insert] APN: 1596301.2 DRAFT 8127121 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT B SITE PLAN [Need to Insert] 1596301.2 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 EXHIBIT C STREET PARKING PLAN 1596301.2 DRAFT 8127121 DocuSign Envelope ID: F2494AF3-FB2B-434F-8DE1-77BBE27CEC67 DRAFT EXHIBIT D 8/27/21 GATEWAY SIGN 1596301.2