HomeMy WebLinkAboutORD 1520 (2022) DocuSign Envelope ID:6251569E-BD8C-4EDF-90A4-29FB3B46EC1 C
ORDINANCE NO. 1520
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING
DEVELOPMENT AGREEMENT (DA) 2021-0003 BETWEEN THE CITY OF TUSTIN
AND FLIGHT PHASE I OWNER, LLC. TO ALLOW AN AMENDMENT TO THE TUSTIN
LEGACY CORNERSTONE DEVELOPMENT AGREEMENT (DA 2016-0001) FOR THE
CREATIVE OFFICE CAMPUS DEVELOPMENT KNOWN AS "THE FLIGHT AT TUSTIN
LEGACY" LOCATED WITHIN A PORTION OF PLANNING AREA 9-12 OF THE TUSTIN
LEGACY SPECIFIC PLAN (SP-1).
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. That proper application has been submitted by Flight Phase I Owner,
LLC. requesting an amendment to the Tustin Legacy Cornerstone
Development Agreement (DA 2016-0001) for "The Flight at Tustin
Legacy", a creative office campus development location within the Tustin
Legacy Specific Plan area (SP-1).
B. That Phase I of the project was completed by the applicant in 2019 and
the City issued a Certificate of Compliance for this phase signifying that
the applicant has completed all obligations under the Disposition and
Development Agreement (DDA) for the project. As a result, the DDA for
Phase I is terminated.
C. That Tustin Legacy Specific Plan Section 4.2.7 requires all private
development at MCAS Tustin to obtain a Development Agreement in
accordance with Section 65864 et seq. of the Government Code and
Sections 9600 to 9619 of the Tustin City Code. In compliance with TCC
Section 9611 , approval of a Development Agreement (DA) and any
amendments thereto are subject to a public hearing before the Planning
Commission. Pursuant to TCC Sections 9612-9614, following a
recommendation by the Planning Commission, the DA must be approved
by the City Council by the adoption of an ordinance at a separate noticed
public hearing.
D. That a public hearing was duly called, noticed, and held on said
application on December 14, 2021, by the Planning Commission. The
Planning Commission adopted Resolution No. 4443 recommending that
the City Council adopt Ordinance No. 1520.
E. That a public hearing was duly called, noticed, and held on said
application on February 1 , 2022, by the City Council.
Ordinance No. 1520
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F. Per CEQA Section 15061(b)(3), an environmental analysis is not
necessary given the nature of the DA amendment, which is changes to
the text within the document. The DA amendment includes no
construction and has no possibility for causing a significant effect on the
environment; therefore, the project is not subject to CEQA.
G. That the amendment to the Development Agreement can be supported by
the following findings:
1 . DA 2021-0003 as an amendment to the TLCDA, is consistent
with the objectives, policies, general land uses, and programs
specified in the General Plan and TLSP in that the project is
consistent with Tustin General Plan Land Use Element
Policies 14.1, 14.2, and 14.4 and would further the goals and
objectives of the City within this portion of Planning Area 9-12
of the TLSP by continuing to provide for orderly development
envisioned at the project site, as follows:
Policy 14.1: Promote new uses and design which will
peacefully coexist with surrounding residences and
businesses in Tustin and adjacent cities, minimizing impacts
on noise, air quality, traffic, and other environmental features
wherever possible.
Policy 14.2: Encourage a development pattern that offers a
connectedness between buildings and uses, and has a strong
sense of place through architectural style and creative
landscape design.
Policy 14.4: Implement a balanced reuse plans that responds
to community needs but does not drain City resources.
Wherever possible, tax revenues generated by uses on the
site should offset the costs of public services.
2. DA 2021-0003 as an amendment to the TLCDA, is consistent
with the TLSP. While no project or construction is proposed at
this time, any future development and uses within the Specific
Plan area (i.e. Phase II) will be further analyzed at the time of
development proposals for consistency with the TLSP.
3. DA 2021-0003 as an amendment to the TLCDA, is in
conformance with the public necessity, public convenience,
general welfare, good land use practices, and the orderly
development of property, in that the modifications to certain
provisions of text contained within the Original DA are minor in
nature and would provide further clarity regarding Phase I of
Ordinance No. 1520
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the project and future development for Phase 2. There is no
construction planned in conjunction with this amendment.
4. In addition, DA 2021-0003 (as an amendment to the TLCDA),
complies with all applicable Federal, State, and Local rules and
regulations.
5. DA 2021-0003, an amendment to the TLCDA, will have a
positive fiscal impact on the City in that it will provide further
clarity in language that would allow for potential development
of Phase 2 of the project.
SECTION 2. The City Council hereby approves Development Agreement 2021-0003
attached hereto as Exhibit A and subject to final approval of the City
Attorney.
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or
portion of this ordinance is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council of the City of Tustin hereby declares that it
would have adopted this ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof irrespective of the fact that
any one or more sections, subsections, sentences, clauses, phrases, or
portions be declared invalid or unconstitutional.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin
on this 15th day of February, 2022.
_5 DocuSigned by:
tu, inn bar
AU TiIDLBARD,
Mayor
FDOCUSIgned by:
IU"'S'J.a.
ERIC m,yAwIDA,
City Clerk
Ordinance No. 1520
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APPROVED AS TO FORM:
DocuSigned by:
� uP
DA\Y)iDBE—KEN IG,
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. 1520
was duly and regularly introduced at a regular meeting of the Tustin City Council, held
on the 1 st day of February, 2022, and was given its second reading, passed, and
adopted at a regular meeting of the City Council held on the 15th day of February, 2022,
by the following vote:
COUNCILMEMBER AYES: Lumbard, Cooper, Clark Gallagher, Gomez (5)
COUNCILMEMBER NOES: (0)
COUNCILMEMBER ABSTAINED: (0)
COUNCILMEMBER ABSENT: (0)
FDocuSigned by:
u,"S'JI
E R I&A-4476YA4SUPDA,
City Clerk
Ordinance No. 1520
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EXHIBIT A
Development Agreement 2021-0003
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CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT BE RECORDED
AND BE EXEMPT FROM PAYMENT OF
A RECORDING FEE PER
GOVERNMENT CODE 6103 AND 27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attn: City Clerk
Space Above This Line Reserved for Recorder's Use Only
FIRST AMENDMENT TO TUSTIN LEGACY CORNERSTONE I
DEVELOPMENT AGREEMENT
This FIRST AMENDMENT TO TUSTIN LEGACY CORNERSTONE I
DEVELOPMENT AGREEMENT ("First Amendment")is entered into as of[•], 2021,by and
between the CITY OF TUSTIN, a California municipal corporation ("City"), and FLIGHT
PHASE I OWNER LLC, a Delaware limited liability company ("Developer"). The City and
Developer are collectively referred to herein as the "Parties" and individually as a"Party."
RECITALS
A. City and Flight Venture LLC, a Delaware limited liability company ("Original
Developer"), as predecessor-in-interest to Developer, previously entered into that certain Tustin
Legacy Cornerstone I Development Agreement (Ordinance No. 1471), with an "Effective Date"
(as defined in Section 1.1.31 of the Original DA) as of December 15, 2016 (the "Original DA").
The Original DA was recorded in the Official Records of Orange County, California ("Official
Records")on March 30, 2017 as Instrument No. 2017000128365. The Original DA and this First
Amendment are collectively referred to herein as the "Agreement."
B. The Original DA was timely executed and accordingly did not terminate pursuant
to Section 2.3.2 of the Original DA.
C. Original Developer assigned the Original DA to Developer, and Developer
assumed the Original DA from Original Developer, pursuant to that certain Assignment and
Assumption Agreement (Cornerstone I) dated as of June 29, 2017 (the "DA Assignment"). The
DA Assignment was recorded in the Official Records on June 29, 2017 as Instrument No.
2017000270813.
D. As of the Effective Date, (1)the Original DA, as modified by the DA Assignment,
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remains in effect, and (2) Developer is not in default.
E. City and Developer are also parties to that certain Tustin Legacy Disposition and
Development Agreement Cornerstone I dated as of November 15, 2016, as amended by (1) that
certain First Amendment to Tustin Legacy Disposition and Development Agreement Cornerstone
I dated as of June 20, 2017, (2)that certain Second Amendment to Tustin Legacy Disposition and
Development Agreement Cornerstone I dated as of October 1, 2019, and (3)that certain Third
Amendment to Tustin Legacy Disposition and Development Agreement Cornerstone I dated as of
December 1,2020 (collectively, and as the same may be amended from time to time,the"DDA").
A Memorandum of the Second and Third Amendments to the DDA was recorded in the Official
Records on December 22, 2020 as Instrument No. 2020000759139.
F. The Phase 1 Parcel was conveyed to Developer on June 29, 2017, and a Certificate
of Compliance for the Phase 1 Project dated March 26, 2020 was recorded in the Official Records
on March 26, 2020 as Instrument No. 2020000137939 (the "Recorded Phase 1 Certificate of
Compliance"). Accordingly,the DDA has terminated as to the Phase 1 Parcel and is of no further
force and effect with respect to Phase 1 or the Phase 1 Parcel.
G. The Parties now desire to modify certain provisions of the Original DA as more
particularly set forth herein. Any capitalized word or term used in the Agreement and not defined
in this First Amendment shall have the definition or meaning ascribed to such word or term as
provided in the Original DA, and where a capitalized word or term is not defined herein or in the
Original DA, it shall have the meaning set forth in the DDA.
AGREEMENT
NOW,THEREFORE,in consideration of the above recitals,which are incorporated herein
by this reference, and for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
The definition of"Option Year" in Section 1.1.55 of the Original DA is hereby deleted in
its entirety and replaced with the following:
""Option Year" means the First Option Year and each succeeding twelve month
period following the First Option Year through the fifth(5th)Option Year for which
Developer obtains an extension of the Option pursuant to Section 4.3.3(b) of the
DDA and with respect to the sixth (6th) Option Year shall mean the period from
June 29, 2022 to December 30, 2022."
2. TERM.
2.1 Phase 1. All pre-conditions for the partial termination of the Original DA as to
Phase 1 set forth in Section 2.5.4(a)(vi) of the Original DA have been satisfied,
including without limitation the City's issuance of the Recorded Phase 1 Certificate
of Compliance. Accordingly,the City and Developer hereby agree that the Original
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DA is terminated as to Phase 1 and the Phase 1 Parcel. From and after the effective
date of this First Amendment, neither the approval nor the signature of the owner
of Phase 1 or any Phase 1 Developer shall be required to terminate, extend,modify,
or amend this Agreement.
2.2 Phase 2. Section 2.3.1(b) of the Original DA is hereby deleted in its entirety and
replaced with the following:
"(b) with respect to Phase 2,the term (the"Phase 2 Term") shall terminate upon
the occurrence of the earlier to occur of the following dates, provided that in no
event, after taking into account Force Majeure Delay, shall the Phase 2 Term be
extended beyond the fifteenth (15th) anniversary of the Effective Date:
i. the date upon which the Option terminates
without exercise thereof, or
ii. four (4) years from the Phase 2
Commencement of Construction (as defined in the DDA); or
iii. December 15, 2029, as such date may be
automatically extended during the period of any Force Majeure Delay
established pursuant to Section 9.11 for a maximum of two (2) additional
years."
3. WITHHOLDING OF PHASE 2 GRADING, FOUNDATION AND/OR BUILDING
PERMITS.
The Parties acknowledge and agree that the City shall have the right(but not the obligation)
to withhold the issuance of any grading, foundation and/or building permits with respect to
construction on the Phase 2 Parcel until such time that the City has issued a Satisfaction Date
Notice pursuant to the terms of the DDA. Developer hereby waives its right to challenge such
withholding by the City of such grading, foundation and/or building permits with respect to the
Phase 2 Parcel in accordance with this Section 3; provided, however, that the foregoing waiver
shall not be interpreted to limit Developer's ability pursuant to the terms of the DDA to contest in
good faith City's determination that the Phase 2 Construction Commencement Conditions have
been satisfied in accordance with the terms of the DDA.
4. MISCELLANEOUS.
4.1 The Recitals set forth in this First Amendment are affirmed by the Parties to be true
and correct and are incorporated into the Agreement by this reference.
4.2 This First Amendment may be executed by the Parties in counterparts, which
counterparts shall be construed together and have the same effect as if all of the Parties had
executed one original.
4.3 Each person executing this First Amendment on behalf of each Party warrants and
represents that he, she, or they have the authority to execute this First Amendment on behalf of
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such Party and warrants and represents that he, she, or they has/have the authority to bind such
Party to the performance of its obligations hereunder.
4.4 The Parties intend hereby to amend the Original DA only as set forth herein, and
the Parties hereby agree that, except as expressly amended hereby, all other terms and conditions
of the Original DA are hereby confirmed and shall remain in full force and effect.
4.5 This instrument shall be interpreted and construed in accordance with the laws of
the State of California.
(remainder of page is blank;signatures commence on the following page)
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SIGNATURE PAGE
TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
IN WITNESS WHEREOF,the Parties hereto have executed this First Amendment on the
day and year set forth below.
"City"
CITY OF TUSTIN, CALIFORNIA
By:
Austin Lumbard,
Mayor
ATTEST:
By:
Erica N. Yasuda,
City Clerk
Dated:
APPROVED AS TO FORM:
Office of the City Attorney
By:
David E. Kendig, Esq.
[Signatures continued on next page]
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"Developer"
FLIGHT PHASE I OWNER LLC,
a Delaware limited liability company
By:
Name:
Title:
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CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On before me,
Date (Insert Name and Title of the Officer)
personally appeared
Name(s)of Signer(s)
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.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin Cornerstone First Amendment to DA S-3 City of Tustin/Cornerstone I
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CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
State of California
County of
On before me,
Date (Insert Name and Title of the Officer)
personally appeared
Name(s)of Signer(s)
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.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
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