HomeMy WebLinkAboutORD 1538 (2023) ______________________
Ordinance No. 1538
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ORDINANCE NO. 1538
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING
DEVELOPMENT AGREEMENT (DA) 2023-0002 BETWEEN THE CITY OF TUSTIN AND
CITY VENTURES HOMEBUILDING, LLC TO ACCEPT THE VOLUNTARY PROVISION
OF COMMUNITY PUBLIC BENEFITS, BY INCLUDING TWO (2) AFFORDABLE
HOUSING UNITS FOR VERY-LOW INCOME HOUSEHOLDS, PAYMENT OF
VOLUNTARY WORKFORCE HOUSING INCENTIVE PROGRAM IN-LIEU FEE, AND A
1,392 SQUARE FOOT PUBLIC AMENITY SPACE FOR A NEW, LIVE/WORK AND
RESIDENTIAL CONDOMINIUM DEVELOPMENT PROJECT THAT WOULD INCLUDE
THIRY-FIVE (35) RESIDENTIAL CONDOMINIUM UNITS AND SEVEN (7) LIVE/WORK
UNITS, FOR A TOTAL OF FORTY TWO (42) UNITS IN SIX BUILDINGS, INCLUDING
TWO (2) AFFORDABLE UNITS, ON APPROXIMATELY TWO (2) ACRES AT 14042
NEWPORT AVENUE
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 a proper application has been submitted to the City of Tustin (the City)
Community Development Department by City Ventures Homebuilding, LLC
for a Subdivision Map (SUB 2023-0003) / Vesting Tentative Tract Map
(VTTM No. 19164), Design Review (DR) 2023-0019, Final Approval of RAR,
Density Bonus requests for one (1) concession to remove the requirement
for full replacement of frontage improvements along El Camino Real; two
(2) waivers to reduce the minimum required ground floor commercial
development standards within the live/work units that include the interior
depth from 45 feet to 13 feet-8 inches (13’-8”) and first (1st) floor plate height
of the live/work units from sixteen (16) feet to 10’1” feet; and use of State
Density Bonus Law parking standards, which allow tandem parking; and
Development Agreement (DA) 2023-0002 to construct a new, live/work and
residential condominium development project that would include thirty-five
(35) residential condominium units and seven (7) live/work units, for a total
of forty-two (42) units in six (6) buildings, including two (2) affordable units,
on approximately two (2) acres. The project would also include an enclosed,
two-car garage and private open space for each dwelling unit, a total of
seventeen (17) guest surface parking spaces, common open space areas,
landscaping, and a 1,392 square foot (SF) public amenity space fronting El
Camino Real. The project is located at 14042 Newport Avenue within
Downtown Commercial Core Specific Plan (DCCSP; SP12).
B.That Section 6.1.3.1 of DCCSP requires that approval of a Development
Agreement shall be required for approval of a Subdivision Map. Applications
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Ordinance No. 1538
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for Development Agreements shall be processed in accordance with Section
6.1.4, Approval Authority of DCCSP and Article 9, Chapter 6, Development
Agreements, of the Tustin City Code (TCC).
C. That TCC Section 9611 requires the applicant and the City to enter into a DA
for the voluntary provision of community public benefits, by including two (2)
affordable housing units for very-low income households, payment of voluntary
workforce housing incentive program in-lieu fee, and a 1,392 square foot public
amenity space.
D. That the proposed voluntary provision of community public benefits, by
including two (2) affordable housing units for very-low income households,
payment of affordable housing in-lieu fee, and a 1,392 public amenity space is
in the best interest of the public in that it increases the diversity in available
housing for existing and new residents in the City of Tustin.
E. That Section 65864 et seq. of the Government Code and Sections 9600 to
9619 of the TCC authorize the Tustin City Council to enter into a Development
Agreement. In compliance with TCC Section 9611, the Tustin Planning
Commission must make a recommendation on the proposed Development
Agreement (DA) 2023-0002 to the City Council.
F. That a public hearing was duly called, noticed, and held on said application
on October 10, 2023, by the Planning Commission. The Planning
Commission adopted Resolution No. 4479 recommending that the City
Council approve the DA.
G. That a public hearing was duly called, noticed, and held on said application
on November 7, 2023, by the City Council.
H. That the DA is supported by the following findings:
1. That the DA is consistent with the General Plan and Zoning and the
project will be consistent with the objectives, policies, general land
uses and programs specified in the General Plan in that residential
uses are permitted uses within the Downtown Commercial Core
Specific Plan (DCCSP) land use designation and the Downtown
Commercial Core Specific Plan (DCCSP, SP-12) zoning district.
2. That the project is compatible with the uses authorized in the district in
which the property is located.
3. That the project is in conformity with the public necessity, public
convenience, general welfare and good land use practices in that the
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Ordinance No. 1538
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project would provide forty (40) market-rate for sale units and two (2)
affordable housing units for very-low income households for new and
existing Tustin residents thereby providing additional options of
housing types to the City’s house stock.
4. The project will not be detrimental to the health, safety and general
welfare. The project will comply with the DCCSP, TCC, mitigation
measures and conditions of approval and other regulations to ensure
that the project will not be detrimental to the community.
5. 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
existing and future residents and businesses in the City.
6. That the approval of the DA will provide for two (2) Very Low Income
units and payment of affordable housing in-lieu fee.
7. A Fiscal Impact Statement was prepared and submitted along with the
DA which verifies that the project would have a positive fiscal impact
on the City over and above that of the currently vacant site.
I. That the provisions of DA 2023-0002 are consistent with DCCSP and the
policies of the General Plan, as evidenced by the following findings:
1. That the project is adjacent to and surrounded by other commercial
promoting pedestrian-oriented development and walkability
community while maintaining a commercial emphasis of the project
area.
2. That a mix of live/work and residential uses are more beneficial to
adjacent uses consistent with the overall vision, goals and intent of
the DCCSP.
J. That the proposed project is consistent with the General Plan Housing
Element Goal 1 in that the project would facilitate the provision of an
adequate supply of housing to meet the need for a variety of housing types
and the diverse socio-economic needs of all community residents and
supports State Housing Law as implemented by the Regional Housing
Needs Assessment (RHNA). The project provides for forty (40) market-rate
for sale units and two (2) affordable units.
In furtherance of Goal 1 of the Tustin General Plan Housing Element, the
applicant will provide two (2) Very Low Income units on site and pay an in-
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Ordinance No. 1538
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lieu affordable housing fee which will be used for development of affordable
housing in another location within the City.
K.That on June 19, 2018, the Tustin City Council adopted Resolution No. 18-
24 adopting and certifying the Final Environmental Impact Report (EIR) and
Mitigation Monitoring and Report Program (MMRP) for the Downtown
Commercial Core Specific Plan (DCCSP).
L.That the project meets the criteria for statutory exemption from CEQA
pursuant to State CEQA Guidelines Section 15182(c). The Section
15182(c) statutory exemption allows residential projects implementing a
Specific Plan if a public agency has adopted an Environmental Impact
Report (EIR) on a specific plan after January 1, 1980, and no subsequent
EIR has been completed. The Downtown Core Commercial Specific Plan
EIR was certified in 2018 and none of the conditions described in CEQA
Section 15162 calling for the preparation of a subsequent EIR/Notice of
Determination have occurred. Therefore, the Planning Commission
recommends that the City Council find the project exempt from CEQA
pursuant to CEQA Guidelines Section 15182(c).
SECTION 2. The City Council hereby approves DA 2023-0002 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 day of 2023.
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21st November
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Ordinance No. 1538
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_________________________________
AUSTIN LUMBARD,
Mayor
____________________ _____
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. 1538 was duly and
regularly introduced at a regular meeting of the Tustin City Council, held on the 7th day of
November, 2023 and was given its second reading, passed, and adopted at a regular
meeting of the City Council held on the ___ day of ________, 2023 by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
COUNCILMEMBER RECUSED:
ERICA N. YASUDA,
City Clerk
Exhibit A – Development Agreement 2023-0002
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November21st
Lumbard, Clark, Gallagher, Gomez, Schnell (5)
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(0)
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DEVELOPMENT AGREEMENT
(DA-2023-0002)
(Pursuant to California Government Code sections 65864-65869.5)
This DEVELOPMENT AGREEMENT (the “Agreement”) is dated for reference purposes
as of the ____ day of _______________, 202_ (“Effective Date”), and is being entered into by
and between the CITY OF TUSTIN (“City”) and CITY VENTURES HOMEBUILDING, 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 “Party.” 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 approximately two
(2) acres in the City of Tustin, County of Orange, State of California, located at 14042 Newport
Avenue in the Downtown Commercial Core Specific Plan (“DCCSP”) (APNs # 432-074-07, 432-
074-08, 432-074-09) as legally described on Exhibit A and depicted on Exhibit B attached to this
Agreement (the “Property”), and therefore is authorized to enter into this Agreement pursuant to
Government Code Section 65865.
B. Developer is proposing to develop the Property with thirty-five (35) residential
condominium units and seven (7) live/work units, for a total of forty-two (42) units in six (6)
buildings, with associated landscaping, public amenity space, and parking (“Project”). Five (5)
percent of the base units (thirty-five (35) units) would be affordable to very low-income
households, making the Project eligible for a twenty (20) percent density bonus, unlimited waivers,
one concession/incentive, and State Density Bonus Law parking standards under State Density
Bonus Law.
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.
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F. The following land use entitlements for the Project are being adopted and
approved by the City Council concurrently with its approval of this Agreement (“Project
Approvals”):
(1) Subdivision (SUB) 2023-0003/Vesting Tentative Tract Map (VTTM) No.
19164 to subdivide the existing three (3) parcels to one (1) lot for condominium
purposes, within multiple Phases (Exhibit C);
(2) Design Review (DR) 2023-0019 for thirty-five (35) residential units and
seven (7) Live/work units for a total of forty-two (42) attached residential
condominium townhomes within six (6) buildings to include 40 market rate and 2
affordable (50% AMI) units, common and private open space and landscaping, and
a public amenity space;
(3) Final Approval of Residential Allocation Reservation (RAR) 2023-0001;
(4) Density Bonus request with five (5) percent of units identified as very-low
income housing with a request for density bonus of twenty percent (35 base units,
plus seven density bonus units); one (1) concession to remove the requirement for
full replacement of frontage improvements along El Camino Real; two (2) waivers
to reduce the minimum required ground floor commercial development standards
within the Live/work units that include the interior depth from 45 feet to 13 feet-8
inches (13’-8”) and first (1st) floor plate height from sixteen (16) feet to 10’1” feet;
and use of State Density Bonus Law parking standards, which allow tandem
parking;
(5) Development Agreement 2023-0002, consistent with the requirements of
the DCCSP.
G. On June 19, 2018, the Tustin City Council adopted Resolution No. 18-24 adopting
and certifying the Final Environmental Impact Report for the DCCSP.
H. The Project Approvals have been evaluated pursuant to the California
Environmental Quality Act (“ CEQA”) and determined to be exempt pursuant to Section 15182(c)
of the State CEQA Guidelines (Cal. Code of Regs., title 14, Section 15182) and Government Code
Section 65457 for Residential Projects Implementing a Specific Plan because none of the factors
listed in Public Resources Code Section 21166 have occurred.
I. City has determined that the Project, including this Agreement, is 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.
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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.
J. City has determined that this Agreement satisfies Developer’s obligation pursuant
to the DCCSP to enter into a Development Agreement for a Subdivision Map approval.
K. On October ____, 2023, City’s Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to the Project Approvals, including
this Agreement, and recommended to the City Council that the City Council approve this
Agreement and the other Project Approvals.
L. On November 7, 2023, 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, and approved the Project
Approvals other than this Agreement, adopting Resolution Nos. ___________. On December 5,
2023, consistent with applicable provisions of the Development Agreement Statute and
Development Agreement Ordinance, the City Council adopted 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.
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
1. 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 6.6 of this Agreement.
“Adopting Ordinance” shall have the meaning ascribed in Recital L of this Agreement.
“Agreement” shall mean this Development Agreement.
“Applicable Approvals” shall include the Project Approvals described in Recital F of this
Agreement and Subsequent Approvals.
“Approval Date” means the date this Development Agreement was adopted by ordinance
of the City Council.
“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.
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“City Council” shall mean the governing body of the City of Tustin.
“City’s Affiliated Parties” shall have the meaning ascribed in Section 8.1 of this Agreement.
“Claim” shall have the meaning ascribed in Section 8.1 of this Agreement.
“Cure Period” shall have the meaning ascribed in Section 6.1 of this Agreement.
“Damages” shall have the meaning ascribed in Section 6.2 of this Agreement.
“Default” shall have the meaning ascribed to that term in Section 6.1 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,
reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the
initial construction and completion thereof.
“Developer” shall mean City Ventures Homebuilding, 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 Limitation” shall have the meaning ascribed in Section 2.3.4, and shall
include the events listed in Article 7.
“Development Plan” shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Approval 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 Approval Date.
“Development Regulations” shall mean the following regulations as they are in effect as
of the Approval 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 Downtown Commercial Core Specific Plan and the
Tustin City Code dealing with buildings and construction, subdivisions and inclusionary housing,
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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 have the meaning ascribed in Section 2.3.1.
“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 seq., 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 seq., 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 seq., 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 seq., 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 seq.
“General Plan” shall mean City’s General Plan in effect on the Approval 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 6.1 of this Agreement.
“Park Fee Credit” shall have the meaning ascribed in Section 4.1.2.
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“Party” or “Parties” shall mean either City or Developer or both, as determined by the
context.
“Phase” shall mean any Phase depicted on Exhibit C.
“Phases” shall mean all of the Phases depicted on Exhibit C, collectively.
“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 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.
“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.
“Recordation Date” shall mean the date this Agreement is recorded in the Office of the
Orange County Recorder.
“Subsequent Development Approvals” or “Subsequent 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 Approval 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 Approval 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 Approval 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 9.1 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.
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, as of the Effective Date, Developer has an
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equitable interest to acquire fee simple title to the Property; (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
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 Effective Date and Term.
2.3.1 Effective Date. The Effective Date of this Development Agreement is stated
in the first paragraph of this Development Agreement and represents the later of: (a) thirty (30)
days after the date the Ordinance approving this Development Agreement is adopted by the City
Council; or, (b) if a referendum petition is timely and duly circulated and filed, the date the election
results on the ballot measure by City voters approving this Development Agreement are certified
by the City Council in the manner provided by the Elections Code. This Agreement shall be
executed by the City within ten (10) days after the Effective Date and recorded as provided in
Government Code Section 65868.5.
2.3.2 Term. The term of this Agreement (the “Term”) shall commence on the
Recordation Date and shall continue in full force and effect until the Termination Date (as defined
below) or five (5) years, whichever occurs first, unless extended pursuant to Section 2.3.4.
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 the
Applicable Approvals.
2.3.3 Termination. The “Termination Date” shall be the earliest of the following
dates: (i) the expiration of the allocation of the 35 base residential units to the Project, and the
redeposit of the units into the Residential Allocation Bank, as set forth in Section 3.1.1 (ii) the fifth
(5th) anniversary of the Effective Date as the same may be extended pursuant to Section 2.3.4;
(iii) the date of termination of this Agreement by the City in accordance with any of Articles 5, 6
and/or 7 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement
Statute; (iv) 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 fees, 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 and offers of dedication, not to be unreasonably withheld by City;
(v) 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 (vi) the
date of adoption of a referendum measure overriding or repealing the Adopting Ordinance. The
termination or expiration of this Agreement shall not affect the validity of the Applicable Approvals
(other than this Agreement).
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2.3.4 Extensions. 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 during the Term, the Parties understand and agree that various third
parties may take action or other events outside the Parties’ control, including as listed in Article
7, may occur causing a de facto “Development Limitation.” Consequently, the Term and the
obligations imposed pursuant to this Agreement shall be extended day for day for any delay
arising from a Development Limitation, including 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.
3. Development of Project.
3.1 Development Regulations for the Project Approvals.
3.1.1 Life of the Project Approvals. Developer shall have the right but not the
obligation to develop the Project under the terms of the Project Approvals, including this
Agreement. Following final approval of RAR 2023-0001 and the Applicable Approvals all
construction related permits for the Project, including demolition, grading, and building permits,
must be obtained during the life of the Vesting Tentative Tract Map (“VTTM”). Following building
permit issuance, construction on the first building must commence within 180 days, except if this
time period is automatically extended pursuant to Article 7. Other time extensions may be
considered at the discretion of the City Community Development Director (“Director”), not to be
unreasonably withheld. Developer’s precise grading permit application shall comply with all
requirements specified in Tustin City Code section 8909. The allocation of the 35 base residential
units to the Project shall expire and the units redeposited into the Residential Allocation Bank for
use by other projects if the first construction-related permit is not obtained within the required time
limits or approved for extension, or the permit is not utilized, as evidenced by the commencement
of construction, including grading, within the time allowed pursuant to this Section 3.1.1.
Notwithstanding the foregoing, if the City alters the RAR process to provide that an RAR recipient
has more time to use an RAR than provided in this Agreement, Developer shall be provided an
equivalent extension of time to use its RAR. If the City rescinds the RAR requirement, Developer’s
RAR shall not expire.
3.1.2 Purpose. 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. For this
reason, City agrees to process all Subsequent Approvals expeditiously, and within the time
provided by Government Code section 65913.3. City shall prioritize the processing of all
Subsequent Approvals to ensure that the purpose of this Agreement is not frustrated.
3.1.3 Amendments. Developer may apply to City for permits or approvals
necessary to modify or amend the Development specified in the Project Approvals, 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
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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.
3.1.4 Vested Elements and Rights. Developer shall have the vested right to
complete development of the Property in accordance with the Development Plan. Developer’s
vested rights include all rights vested by the VTTM and rights provided by this Agreement. This
Agreement is not intended to lessen the vested rights provided by the VTTM, including the vesting
of Development Impact Fees (defined in Section 3.1.5), and in the event of a conflict between this
Agreement and the vested rights provided by the VTTM, the vested rights provided by the VTTM
control.
3.1.5 Fees. Consistent with Government Code section 66007, Development
Impact Fees shall be paid on the date of the final inspection, or the date the certificate of
occupancy is issued, whichever occurs first. Development Impact Fees shall be paid on a pro rata
basis for each dwelling when it receives its final inspection or certificate of occupancy, whichever
occurs first. The term “Development Impact Fees” means those fees imposed or levied by the
City with respect to development and/or its impacts pursuant to applicable governmental
requirements, including Government Code Sections 66000 et seq., including impact fees, fees or
charges for the construction of public improvements or facilities, park and recreation fees, linkage
fees, exactions, assessments, fair share charges, or other similar impact fees or charges imposed
on or in connection with new development. Development Impact Fees do not include (1) City
Processing Fees, as defined in Section 3.4.2, or (2) regional pass-through fees imposed by other
agencies and charged by the City.
3.2 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.
3.3 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 3.4 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 Approval Date to the extent it conflicts with this Agreement. In 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
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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 and the
Development Regulations, notwithstanding adoption by City’s electorate of an initiative to the
contrary after the Approval 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.
3.4 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 3.4 shall apply to and govern the
Development of the Project on and with respect to the Property.
3.4.1 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.
3.4.2 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”).
3.4.3 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.
3.4.4 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
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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 of such changes by City shall be subject to the sole discretion of City,
consistent with this Agreement.
3.4.5 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.
3.4.6 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.
3.4.7 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.
3.4.8 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 as
and when service connections are provided and service commences).
3.5 Applicable Approvals.
3.5.1 Subdivision Map. Pursuant to Government Code Section 66452.6 and any
other applicable provisions of the Government Code, the term of the VTTM and any other
subdivision or parcel map that is approved for all or any portion of the Property shall be extended
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to a date coincident with the Term and, where not prohibited by State law, with any extension of
the Term, unless a longer term would result under otherwise applicable State or local law.
3.5.2 Life of Other Applicable Approvals. The term of all other Applicable
Approvals shall be automatically extended such that these Applicable Approvals remain in effect
for a period of time at least as long as the term of this Agreement.
3.5.3 State Density Bonus Law. Nothing in this Agreement limits Developer’s
ability to request State Density Bonus Law benefits, including concessions, incentives, and
waivers, to the fullest extent allowed by State Density Bonus Law.
3.6 City Acceptance of Developer Improvements and Obligations
To the extent any of Developer’s performance obligations under this Agreement require
acceptance or acknowledgment from the City upon completion by Developer, City shall provide
written notice of such acceptance or acknowledgement to Developer as evidence of Developer’s
satisfaction of said obligation, City’s acceptance not to be unreasonably withheld consistent with
the terms of this Agreement. Written notice may take the form of a letter, permit, certificate of
completion, certificate of occupancy, or any other form.
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 Amenity Space. Consistent with DCCSP Section 6.6(B)(4), the
Project includes a 1,392 square foot public amenity space that is easily accessible to the public
and includes a decorative wall, seating, landscaping, and lighting, as more specifically identified
on Exhibit B and Exhibit D, or such alternative amenities as may be approved by the Director of
Community Development and the Director of Parks & Recreation (the “Public Amenity Space”).
Therefore, Developer shall construct, in conjunction with and as a part of development of the
Initial Phase of Project, as outlined in the Phasing Plan (Exhibit C), the privately owned, publicly
accessible Public Amenity Space. Developer shall maintain, or, following formation thereof, shall
cause the homeowners’ association (“HOA”) to maintain, the Public Amenity Space at the sole
cost of the Developer or HOA, as applicable, and such obligation shall be set forth in the CC&Rs
for the Project. Prior and as a condition to recording of the final map, the City shall have the right
to review and approve the CC&Rs in order to, among other things, confirm the aforesaid
maintenance obligations are set forth therein.
4.1.2 Park Fee Credit. Developer shall dedicate an easement, either on the VTTM
or by separate instrument, providing public access to the Public Amenity Space during typical City
park hours. Upon dedication of the easement and completion of the Public Amenity Space,
Developer shall receive a credit (“Park Fee Credit”) against fees owed to provide parkland, as
required by the DCCSP and Tustin City Code section 9331 on a per square foot basis for the
actual square footage of land comprising the Public Amenity Space and value of the
improvements thereon on the date that the Park Fee Credit is provided.
4.1.3 Affordable for Sale Units. In addition to paying the Affordable In Lieu Fee
described in Section 4.1.5 below, Developer shall provide two units (equal to five percent of base
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units in the Project) for initial sale to very low-income households (the “Affordable Units”). These
units shall be provided consistent with Article 9, Chapter 1 of the Tustin City Code, beginning with
Section 9111 and be subject to equity sharing requirements in accordance with Government Code
Section 65915 and as further specified in an Affordable Housing Covenant and Equity Sharing
Agreement recorded against the Affordable Units.
4.1.4 Affordable In Lieu Fee. Developer shall pay to the City a voluntary workforce
housing incentive program in-lieu fee in the amount calculated pursuant to Tustin City Code
Section B9923b1 by “… Multiplying the voluntary workforce housing incentive program in-lieu fee
by one-half (½) the number of base units provided on-site…” [(Per Program In-Lieu Fee) x (Base
Units Provided On-site/ 2)]. (the “Affordable In Lieu Fee”) The Affordable In Lieu Fee for each
residential unit shall be paid upon the certificate of occupancy for that unit. The program in-lieu
fee amount used to calculate the Affordable In Lieu Fee for the Project shall be $14,478 per unit.
5. Annual Review of Developer’s Compliance With Agreement.
5.1 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. Developer (including any successor to the
owner executing this Agreement on or before the date the Effective Date) shall pay City the
published hourly fee for planning staff and City Attorney review in effect at the time of the review,
which is deemed sufficient 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. A failure to timely request an annual review shall not constitute a breach of this Agreement
or a Default by Developer.
5.2 Developer Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Developer is required to demonstrate good faith
compliance with the material terms of the Agreement. Upon City request, which shall be issued
no later than thirty (30) days prior to the anniversary of the Effective Date during the Term,
Developer agrees to furnish such evidence of good faith compliance in a written report. The report
may be the same report prepared to show compliance with the conditions of the Project Approvals,
provided, however, that the annual review process hereunder shall review compliance by
Developer with its obligations under this Agreement only and shall not review compliance with
Project-related issues not covered by this Agreement.
5.3 Procedure.
The City shall conduct its annual review of the Agreement in accordance with Tustin City
Code Section 9617, as in effect on the Approval Date.
5.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of
Developer’s Default.
The annual review procedures set forth in this Article 5 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.
The annual review procedures set forth in Tustin City Code Section 9617 (as of the Approval
Date) and this Article 5 shall supplement and shall not replace that provision of Article 6 of this
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Agreement whereby either City or Developer may, at any time, assert matters which either Party
believes have not been undertaken in accordance with this Agreement by delivering a written
Notice of Breach and following the procedures set forth in Section 5.1.
6. Events of Default.
6.1 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 alleged 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, the Cure Period timeframes specified in this Section 6.1 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.
6.2 City's Remedies.
In the event of a Default by Developer under this Agreement that is not cured during the
Cure Period, City, at its option, may institute legal action to cure, correct or remedy such Default,
enjoining any threatened or attempted violation, enforce the terms of this Agreement by specific
performance, or pursue any other legal or equitable remedy. However, except as provided in
Section 6.6 below with respect to recovery of legal expenses, City agrees and covenants on behalf
of itself and its 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
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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, or any permits or entitlements sought in connection 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
and that this Section shall apply to any successor, assignee, or transferee of the Developer.
Furthermore, City, in addition to or as an alternative to exercising the remedies in this Section 6.2,
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).
6.3 Developer's Remedies.
In the event that City is in material default under this Agreement, 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 6.6 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 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, or any permits or entitlements sought in connection with development
or use of the Property or Project, or any portion thereof, except as may be authorized under the
Housing Accountability Act (Government Code section 65589.5). 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.
6.4 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.
6.5 No Personal Liability of City Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a Default
by City of any of its obligations set forth in this Agreement.
6.6 Recovery of Legal Expenses by Prevailing Party 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
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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.
7. 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, rain events exceeding ten (10) days,
earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor
difficulties, state or federal regulations, pandemics, 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.
8. Cooperation in the Event of Legal Challenge
8.1 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 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 any of City’s
Affiliated Parties, and Developer shall pay the reasonable cost for defense of any Claim. The
indemnity provisions in this Section 8.1 shall be effective on the date on which the Adopting
Ordinance is approved by the City Council and shall survive the Termination Date.
8.2 Third Party Litigation.
8.2.1 Cooperation in Defense. In the event of any administrative, legal or
equitable action instituted by a third party challenging the validity of any provision of this
Agreement, the procedures leading to its adoption, or the Applicable Approvals for the Project,
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Developer and City each shall have the right, in its sole discretion, to elect whether or not to
defend such action, to select its own counsel and to control its participation and conduct in the
litigation in all respects permitted by law. If both Parties elect to defend, the Parties hereby agree
to affirmatively cooperate in defending said action and to execute a joint defense and
confidentiality agreement to share and protect information, under the joint defense privilege
recognized under applicable law. As part of the cooperation in defending an action, City and
Developer shall coordinate their defense to make the most efficient use of legal counsel and to
share and protect information. Developer and City shall each have sole discretion to terminate
its defense at any time. If Developer elects not to defend any such third-party action, City retains
the option to undertake such defense, including selecting and employing independent defense
counsel at its own expense, without any Developer obligation to indemnity or defend City. If the
Parties both determine to defend the action and enter into a joint defense and confidentiality
agreement, Developer agrees to pay for defense counsel for City; provided, however, Developer
shall jointly participate in the selection of such counsel. The City shall not settle any third-party
litigation of Applicable Approvals without Developer’s consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
8.2.2 Actions Furthering the Project During Litigation. The filing of any third-party
lawsuit(s) against City or Developer relating to this Agreement, the Applicable Approvals or other
development issues affecting the Property shall not delay or stop the development, processing or
construction of the Project or approval of any Subsequent Approvals, unless the third party
obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance
of any such order. Developer understands the risk of proceeding with development during third-
party litigation and will not seek reimbursement from the City of Processing Fees or other amounts
expended on development during third-party litigation regardless of the outcome of that litigation.
8.2.3 Revision to Project After Legal Action. In the event of a court order issued
as a result of a successful legal challenge, City shall, to the extent permitted by law or court order,
in good faith seek to comply with the court order in such a manner as will maintain the integrity of
the Applicable Approvals and avoid or minimize to the greatest extent possible (i) any impact to
the development of the Project as provided for in, and contemplated by this Agreement, or (ii) any
conflict with the this Agreement or frustration of the intent or purpose of this Agreement.
8.2.4 Defense of Agreement. City shall take all actions that are necessary or
advisable to uphold the validity and enforceability of this Agreement. If this Agreement is
adjudicated or determined to be invalid or unenforceable, City agrees, subject to all legal
requirements, to consider modifications to this Agreement to render it valid and enforceable to
the extent permitted by applicable law
8.2.5 Indemnification. In addition to its indemnity obligations set forth in
Section 8.1, Developer shall indemnify, defend, and hold harmless City and City’s Affiliated
Parties from and against any third-party Claim against City or City’s Affiliated Parties seeking to
attack, set aside, void, or annul the approval of the Project, this Agreement, the Adopting
Ordinance, 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
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cooperate with Developer in an effort to minimize the total litigation expenses incurred by
Developer, as more specifically stated in Section 8.2.1. The indemnity provisions in this
Section shall be effective on the date on which the Adopting Ordinance is approved by the City
Council and shall survive expiration of the Term or earlier termination of this Agreement. This
Section 8.2.5 is intended to be interpreted consistent with Government Code section 66474.9.
8.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 8.1, 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 indemnity provisions in this Section 8.3 shall be
effective on the date on which the Adopting Ordinance is approved by the City Council or
Developer acquires the Property, whichever is later, and shall survive the Termination Date. For
purposes of this Section 8.3, “Hazardous Substance” means any Hazardous Substance as
defined in Section 1, above, that is or was used, stored, placed on the Property by Developer, or
exposed or exacerbated by Developer in conjunction with Project development.
8.4 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
laws.
9. Assignment.
9.1 Right to Transfers.
Developer shall have the right, upon approval of City, which approval shall not be
unreasonably withheld, to sell, transfer or assign (hereinafter, a “Transfer” or “Transfers”)
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
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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 9.3 and 9.4.
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.
The requirement for City consent of a Transfer relates to a Transfer to one or more entities
that will undertake some or all of the Project development or construction and does not extend to
a Transfer to Project end users, including future residents, tenants, or a homeowners’ association.
9.2 Transfers Permitted Without City Consent. Notwithstanding Section 9.1, the
following Transfers shall not require City consent: (i) the conveyance, dedication, or granting of
easements to an agency, municipality, or utility district, such as utility or public access easements,
necessary for Project development; (ii) transactions for financing purposes, including as needed
to secure funds necessary for Project construction, and (iii) transactions with a “Developer
Affiliate,” which is an entity or person that is directly or indirectly controlling, controlled by, or under
common control with Developer. In the event of a Transfer to a Developer Affiliate, Developer
shall provide notice to the City in the form of the Assignment and Assumption Agreement, as
defined in Section 9.5, within ten (10) days after the Transfer.
9.3 City Consideration of Requested Assignment. When consent of a transfer is
required, the City agrees that it will not unreasonably withhold, condition, or delay approval of a
request for approval of a Transfer made pursuant to this Article 9 that requires City approval,
provided the Developer delivers written notice to the City requesting such approval, consistent
with Section 9.4. Such notice shall be accompanied by evidence regarding the proposed
assignee’s development and/or operational qualifications and experience and its financial
commitments and resources in sufficient detail to enable the City to evaluate the proposed
assignee pursuant to the criteria set forth in this Article 9. The City may, in considering any such
request, take into consideration such factors as, without limitation, the assignee’s experience and
expertise, the assignee’s past performance as developer or operator of similar developments,
and the assignee’s current financial condition and capabilities.
9.4 City Approval of Transferee.
Prior to the effective date of any proposed Transfer requiring City consent, Developer (as
transferor) shall:
i. Notify the City, in writing, of such proposed Transfer, consistent with
Section 9.3; and
ii. Deliver to the City an Assignment and Assumption Agreement, as
defined in Section 9.5.
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Within five (5) days after the receipt of Developer’s written notice requesting City approval of a
Transfer, the City shall either approve or disapprove the proposed Transfer or shall respond in
writing by stating what further information, if any, the City reasonably requires to determine the
request complete and determine whether or not to grant the requested approval. Upon receipt of
such a response, Developer shall promptly provide to the City the requested information. Within
five (5) days after the receipt of such information, the City shall approve or disapprove the
requested Assignment. If no response is received from the City with the requisite time period set
for in this Section 9.4, the Transfer is deemed approved.
9.5 Assignment and Assumption Agreement. Prior to any Assignment (whether or not
an Assignment requiring the City’s consent), Developer shall give written notice to City of the
Assignment and satisfactory evidence that the assignee has assumed in writing through an
assignment and assumption agreement all of the Developer’s obligations set forth in this
Agreement (an “Assignment and Assumption Agreement”). The Assignment and Assumption
Agreement shall be in the form attached hereto as Exhibit E.
9.6 Liability of Transferor and Transferee.
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 Assignment and Assumption Agreement; 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 (as Transferor) 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
(as Transferor) 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 6.1 and 6.2 against both the Developer and Permitted Transferee.
10. Mortgagee Rights.
10.1 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
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with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project. Notwithstanding section 11.4, the City shall provide to any mortgagee
an estoppel certificate in form and content reasonably acceptable to the City within ten (10) days
of written request therefor.
10.2 Mortgagee Protection.
This Agreement shall not prevent or limit Developer in any manner, at Developer’s sole
discretion, from encumbering the Property or any portion thereof or any improvement thereon by
any mortgage, deed of trust or other security device securing financing with respect to the
Property (“Mortgage”). 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.
10.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 10.3, 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.
10.4 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.
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11. Miscellaneous Terms.
11.1 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; delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid; or provided by electronic mail
(“Email”). Any notice delivered by Email shall request a receipt thereof confirmed by Email or in
writing by the recipient. The notice or demand shall be addressed as follows:
TO CITY: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
Email: cityclerk@tustinca.org
With a copy to: Woodruff &Smart
555 Anton Boulevard, Ste 1200
Costa Mesa, CA 92626
Attn: David E. Kendig, Esq.
Email: cityclerk@tustinca.org
TO DEVELOPER: City Ventures Homebuilding, LLC
3121 Michelson Drive #150
Irvine, CA 92612
Attn: Karen Alves
Email: kalves@cityventures.com
With a copy to: Cox, Castle and Nicholson, LLP
50 California Street, Suite 3200
San Francisco, CA 94111
Attn: Linda C. Klein, Esq.
Email: lklein@coxcastle.com
Parties may change the address stated in this Section 11.1 by delivering notice to the
other Party in the manner provided in this Section 11.1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices other than Email 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. The effective
date of Email notices shall be the date of receipt, provided such receipt has been confirmed by
the recipient.
11.2 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
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Parties is that of a government entity regulating the Development of private property by the owner
or developer of the property.
11.3 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.
11.4 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.
11.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; “shall” is
mandatory; and “may” is permissive.
11.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
11.7 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.
11.8 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.
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11.9 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.
11.10 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 11.10 shall be effective on the date on which the Adopting Ordinance is approved by the
City Council and shall survive the Termination Date.
11.11 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.
11.12 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 11.12 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 9 or is a Permitted Transferee
under this Agreement.
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11.13 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.
11.14 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
Central District of California. The Parties waive all provisions of law providing for the removal or
change of venue to any other court.
11.15 Section Headings.
All Section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
11.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A
through E are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESIGNATION DESCRIPTION
A Legal Description of Property
B Site Plan
C Phasing Plan
D Public Amenity Conceptual Plan
E Assignment and Assumption Agreement
11.17 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 Approval Date, Effective Date, or Termination Date.
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11.18 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.
[Signature page follows]
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SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
“DEVELOPER”
CITY VENTURES HOMEBUILDING, LLC, a California
limited liability company
By:
[INSERT]
“CITY”
CITY OF TUSTIN
By:
Nicole Bernard, Acting City Manager
ATTEST:
Erica Yasuda, City Clerk
APPROVED AS TO FORM:
David E. Kendig, City Attorney
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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
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN IN THE COUNTY
OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
PARCELS 1 THROUGH 3 INCLUSIVE AS SHOWN ON PAGES 2 OF 5 AND 3 OF 5 OF EXHIBIT B
ATTACHED TO THAT CERTAIN APPLICATION FOR LOT LINE ADJUSTMENT NO. 93-3 RECORDED
MAY 24, 1993 AS
INSTRUMENT NO. 1993-0346491 AND RE-RECORDED OCTOBER 26, 1993 AS INSTRUMENT NO.
1993-0728694 OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THOSE PORTIONS INCLUDED WITHIN PARCELS 72842-1 AND 72842-3
AS DESCRIBED IN THAT CERTAIN FINAL ORDER OF CONDEMNATION, SUPERIOR COURT CASE
NO. 588620
RECORDED JANUARY 14, 1994 AS INSTRUMENT NO. 1994-0032787 OFFICIAL RECORDS.
APN: 432-074-07, 432-074-08, 432-074-09
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EXHIBIT B
SITE PLAN
Public Amenity Space
(see exhibit D for
Conceptual Plan)
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EXHIBIT C
PHASING PLAN
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EXHIBIT D
PUBLIC AMENITY CONCEPTUAL PLAN
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EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
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RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
CITY OF TUSTIN
300 Centennial Way
Tustin, CA 92780
Attn: City Attorney
(Space Above This Line For
Recorder’s Use)
[PARTIAL] ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENT
This [PARTIAL] ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT
AGREEMENT (“[Partial] Assignment”) is entered into as of ____, 20__ (the “Effective Date”), by
and between _____________________________________ (“Assignor”), and
___________________________ (“Assignee”).
RECITALS
A. CITY VENTURES HOMEBUILDING, LLC, a California limited liability
company (collectively “Original Developer” or “Assignor”), and the City of Tustin, a municipal
corporation (“City”) entered into that certain “Development Agreement”, dated _____________,
and recorded on ________________, as Document No. ___________________ of Official
Records, Riverside County (the “Development Agreement” or the “DA”), pursuant to which
Original Developer agreed to develop certain property more particularly described in the
Development Agreement subject to certain conditions and obligations set forth in the
Development Agreement.
B. Assignor is [the owner of or Original Developer’s successor-in-interest to]
the property more particularly described on Exhibit A attached hereto (the “Assignor Land”), which
is [all or a portion] of the property subject to the Development Agreement]
C. Assignee is purchasing [all or a portion] of the Assignor Land, as more
particularly described on Exhibit B attached here to (the “Property”), from Assignor, in accordance
with the terms of that certain [Purchase and Sale Agreement Description] (the “Purchase
Agreement”).
D. Pursuant to the terms of the Purchase Agreement, Assignor agreed to
assign and Assignee agreed to assume certain rights, interests and obligations and other terms
and conditions under the Development Agreement, as such right, interests and obligations relate
to the Property.
E. The purpose of this [Partial] Assignment is to set forth the terms and
provisions agreed upon between Assignor and Assignee with respect to the assignment of certain
rights and interests and the delegation of certain duties and obligations of Assignor under the
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Development Agreement, as such rights, interests, duties and obligations relate to the Property.
AGREEMENT
NOW, THEREFORE, Assignor and Assignee agree as follows:
1. Assignment. Assignor hereby assigns, conveys and transfers to Assignee all
rights and interests of Assignor, as the “Developer”, under the Development Agreement to the
extent such rights and interests relate to the Property, and Assignee hereby accepts such
assignment. [Notwithstanding the foregoing, Assignor shall retain (i) any and all rights under the
Development Agreement necessary to perform the Retained Obligations, defined below; and (ii)
those specific retained rights set forth on Exhibit C attached hereto (the “Retained Rights”).]
2. Assumption of Obligations. [Except with respect to those specific retained burdens
and obligations of Assignor set forth on Exhibit C attached hereto (the “Retained Obligations”),]
Assignee hereby assumes all of Assignor’s duties and obligations under the Development
Agreement accruing after the date hereof, to the extent such obligations relate to the Property,
regardless of whether the obligations originate in the Development Agreement itself or documents
executed in connection therewith as a means to effectuate the intent of those provisions,
including, without limitation: (a) any indemnity obligations, to the extent applicable to the Property
or to Assignee by reason of its ownership of the Property, (b) any obligation to follow and be
bound by all applicable rules, regulations and policies, (c) any obligation to pay any fees,
assessments or exactions as may be imposed by the Development Agreement, and (d) any
obligations arising under the Development Agreement by reason of a default of Assignee under
the Development Agreement (with respect to any obligations assumed by Assignee hereunder).
Assignee agrees to provide City commercially reasonable assurances of its performance of its
obligations under the Development Agreement. Notwithstanding anything to the contrary in this
[Partial] Assignment, Assignee acknowledges that the Development Agreement runs with the
land, therefore nothing in this [Partial] Assignment shall be construed to excuse Assignee from
general compliance with the Development Agreement’s prohibitions, default and cure provisions,
and other standard provisions to the extent applicable to the Property.
3. Development Agreement Transfer Provision. Assignor and Assignee understand
and agree that this Agreement is required to comply with Section 9.5 of the Development
Agreement.
4. Indemnity. Assignee agrees to indemnify, defend and hold harmless Assignor, its
affiliated entities and persons, and their respective members, managers, partners, officers,
directors, shareholders, employees and agents from any claims, demands, losses, liability,
damages, causes of action, costs or expenses (including reasonable attorneys’ fees) made
against or suffered by Assignor with regard to any failure by Assignee to perform any term or
condition of the Development Agreement, to the extent such term or condition relates to the
Property, from and after the date hereof, and Assignor shall indemnify, defend and hold harmless
Assignee, its affiliated entities and persons, and their respective members, managers, partners,
officers, directors, shareholders, employees and agents from any claims, demands, losses,
liability, damages, causes of action, costs or expenses (including reasonable attorneys’ fees)
made against or suffered by Assignee with regard to any failure by Assignor to perform any term
or condition of the Development Agreement, as it relates to the Property, before the date hereof.
5. Miscellaneous.
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5.1. Interpretation; Governing Law. This [Partial] Assignment shall be
construed according to its fair meaning and as prepared by both parties hereto. This [Partial]
Assignment shall be construed in accordance with and governed by the laws of the State of
California.
5.2. Attorneys’ and Other Fees. In the event of any dispute between the parties
hereto or institution of any action or proceeding to interpret or enforce the provisions of this
[Partial] Assignment, or arising out of the subject matter of this [Partial] Assignment or the
transaction contemplated hereby, the prevailing party shall be entitled to recover from the losing
party all of its costs and expenses incurred, including court costs and reasonable attorney’s fees
and expert witness fees.
5.3. Authority. Each of the parties hereto represents and warrants to the other
that the person or persons executing this [Partial] Assignment on behalf of such party is or are
authorized to execute and deliver this [Partial] Assignment and that this [Partial] Assignment shall
be binding upon such party.
5.4. Further Assurances. Assignor and Assignee each agree to do such further
acts and things and to execute and deliver such additional agreements and instruments as the
other may reasonably request to consummate, evidence, confirm or more fully implement the
agreements of the parties as contained herein.
5.5. Execution in Counterparts. This [Partial] Assignment may be executed in
several counterparts, and all originals so executed shall constitute one agreement between the
parties hereto.
5.6. Conflict. Nothing in this [Partial] Assignment is intended to modify or
amend the respective obligations of Assignor and Assignee under the Purchase Agreement
between Assignor and Assignee which gave rise to this [Partial] Assignment and, in the event of
any conflict between this [Partial] Assignment and the Purchase Agreement, as between Assignor
and Assignee the provisions of the Purchase Agreement shall supersede and control over this
Partial Assignment.
5.7. Recordation. The parties hereby authorize this [Partial] Assignment to be
recorded in the records of Riverside County upon the date hereof.
5.8. Successors and Assigns. This [Partial] Assignment shall be binding upon
and inure to the benefit of the respective successors, assigns, personal representatives, heirs
and legatees of Assignor and Assignee.
5.9. Notice. All notices to Assignee under the Development Agreement should
be addressed as follows:
_____________________
_____________________
_____________________
_____________________
Attn: _____________________
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With a copy to:
_____________________
_____________________
_____________________
Attn: _____________________
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this [Partial] Assignment as of the date set forth
below its name below.
“ASSIGNOR”
_____________________,
a _____________________
By: ___________________________________
Date: ___________________________________
By: ___________________________________
Date: ___________________________________
“ASSIGNEE”
_____________________,
a _____________________
By: ___________________________________
Date: ___________________________________
By: ___________________________________
Date: ___________________________________
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