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06 DISPOSITION AND DEVELOPMENT AGREEMENT WITH TUSTIN LEGACY ACQUISITION LLC (IRVINE COMPANY) FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 AT TUSTIN LEGACY
Docusign Envelope ID: 0430F470-9D70-4B51-AB19-8337C321903E �Y AGENDA REPORT S't MEETING DATE TO FROM MARCH 18, 2025 ALDO E. SCHINDLER, CITY MANAGER Agenda Item Reviewed: r_a;i City Manager Finance Director BRIAN MONCRIEF, DEPUTY CITY MANAGER — REAL PROPERTY SUBJECT: DISPOSITION AND DEVELOPMENT AGREEMENT WITH TUSTIN LEGACY ACQUISITION LLC (IRVINE COMPANY) FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 AT TUSTIN LEGACY SUMMARY: Request for authorization to approve the Disposition and Development Agreement (DDA) between Tustin Legacy Acquisition LLC (Irvine Company) and the City for the development of a residential apartment community consisting of 1,336 rental units on approximately 19.4 acres with a total of 25% of the residential units affordable to lower income households. The DDA specifies the terms and conditions under which the City owned property, known as portions of Disposition Areas 2B, 2C and 8, and bounded by Warner Avenue, Legacy Road, Tustin Ranch Road and Compass Avenue in Planning Areas 13 and 14 of Tustin Legacy, will be conveyed to and developed by Tustin Legacy Acquisition LLC. The purpose of the DDA is to implement the Reuse Plan for Marine Corps Air Station Tustin (MCAS Tustin) and the Specific Plan for Tustin Legacy through the development and maintenance of the property. RECOMMENDATION: 1. Authorize the City Manager to execute the DDA between Tustin Legacy Acquisition LLC and the City in the form attached hereto subject to any non -substantive modifications as may be recommended by the City's special real estate counsel or the City Attorney; and 2. Authorize the City Manager to take all actions and execute all other agreements necessary or appropriate to implement the DDA. FISCAL IMPACT: The property will be disposed of in a single takedown for a purchase price of $42,100,000.00. In addition to the purchase price, Tustin Legacy Acquisition LLC will also pay to the City a Project Fair Share Contribution of $9,584,714.53 to fund backbone infrastructure improvements at Tustin Legacy. A brokerage commission of 1 % of the purchase price will be paid by Tustin Legacy Acquisition LLC to the City's broker, CBRE, at the close of escrow. Upon execution of the DDA, Tustin Legacy Acquisition LLC will submit a $5,000,000.00 good Docusign Envelope ID: OB46EOB4-DD13-4DE7-AAC1-135C6B63199D City Council Agenda Report Irvine Company DDA March 18, 2025 Page 2 faith deposit into escrow, which will be applicable towards the purchase price at the close of escrow. The Tustin Unified School District (TUSD) created Community Facilities District (CFD) 15-2 for portions of Tustin Legacy to fund new facilities such as the new middle school and high school (Legacy Magnet Academy). The source of funds for constructing facilities are: 1) statutory and development fees collected when building permits are issued and 2) Community Facilities District fees collected on a project -by -project basis either at the time of conveyance to a developer or assessed to the property owners in the form of bonds. The transaction has been structured to allow the developer/owner to assume the obligation of paying special taxes associated with bonding under CFD 15-2; however, the City maintains the option, in its sole discretion, to make a prepayment of an agreed upon sum at the close of escrow to release the lien of CFD 15-2 on the subject property. Negotiation costs, such as legal, third -party consultants and staff costs incurred by the City are reimbursed by Tustin Legacy Acquisition LLC in accordance with the Exclusive Negotiation Agreement (ENA). Upon execution of the DDA, Tustin Legacy Acquisition LLC shall submit an additional City Costs Deposit to bring the deposit account balance up to $50,000.00 to pay for the City's staff costs and third -party out-of-pocket expenses incurred by the City in implementing the DDA through issuance of a final Certificate of Compliance or in the event the DDA is terminated prior to conveyance. Tustin Legacy Acquisition LLC shall replenish the City Costs Deposit as needed to cover all of the City's Transaction Expenses. This project will be annexed into a future Zone 3 of the City Community Facilities District 18-01 prior to close of escrow, which has been established to cover service costs at Tustin Legacy (police and fire; recreation program services; maintenance of parks, streets, sidewalks and drainage facilities) due to the discrepancy in property tax revenue (3% of the basic levy (1.0%) at Tustin Legacy versus approximately 10.5% City-wide). The Rate and Method of Apportionment specific to this project will require City Council consideration and approval at a later date. The negotiated rate attributable to market rate apartments will be $1,364.28 per dwelling unit with affordable dwelling units exempted. The rate will escalate annually based on a specific Consumer Price Index with a minimum annual escalation of 2% and a maximum of 3%. CORRELATION TO THE STRATEGIC PLAN: Execution of the DDA contributes to the fulfillment of Economic and Neighborhood Development. Specifically, which is to develop critical phases of Tustin Legacy. BACKGROUND AND DISCUSSION: the City's Strategic Plan Goal A: this item implements Strategy 1, On May 21, 2024, the City entered into an ENA with The Irvine Company LLC for the development of a multifamily residential rental community on approximately 19.4 acres and Docusign Envelope ID: OB46EOB4-DD13-4DE7-AAC1-135C6B63199D City Council Agenda Report Irvine Company DDA March 18, 2025 Page 3 providing a minimum of 25% of the total dwelling units restricted as affordable housing units for lower income households. The final unit count for the project is 1,336 dwelling units, of which 334 units will be restricted as affordable to lower income households. On January 14, 2025, the Planning Commission reviewed the entitlement application for the proposed project and recommended that the City Council approve the project. On February 4, 2025, the City Council reviewed the subject project considering the Planning Commission's recommendation and approved the project. The project is exempt under the California Environmental Quality Act (CEQA) pursuant to Section 15182 of the CEQA Guidelines pertaining to a residential project that is undertaken pursuant to and in conformity with a specific plan, and the specific plan's Environmental Impact Report (EIR). The DDA has been structured to allow Tustin Legacy Acquisition LLC to assign certain obligations pertaining to the construction and operation of the affordable component of the project to an affordable housing developer, USA Properties, via a ground lease. The City will enter into a direct letter agreement with USA Properties to perform the Affordable Project Provisions and other relevant provisions as outlined within the DDA as necessary and appropriate to implement the DDA. Tustin Legacy Acquisition LLC also retains the right to build and operate the affordable component of the project or assign the obligations to another affordable housing developer. Project Guaranty Tustin Legacy Acquisition LLC will guarantee the completion and all obligations under the DDA for the entirety of the project inclusive of both the market rate and affordable components of the project. Minimum asset standards will be maintained by Tustin Legacy Acquisition LLC as the Guarantor on a continual basis to ensure sufficient capital to finance the entirety of the project. In addition to the project guaranty, Tustin Legacy Acquisition LLC will be providing numerous indemnifications to the City, one of which indemnifies the City for potential claims for penalties for violation of the Surplus Land Act (SLA) Regulations. Schedule of Performance The Schedule of Performance establishes outside dates by which all steps required including design, construction and development of the project must commence or have been completed during the term of the DDA. The project schedule anticipates completing these items prior to the outside dates allowing for any unanticipated events or issues. In the event of non-performance, a DDA default is triggered. The project will be built in two phases with market rate dwelling units constructed concurrently with affordable dwelling units. The following are some of the major milestone dates contained within the Schedule of Performance: Close of Escrow (COE) April 30, 2026 Phase 1 Construction Commencement 60 days following COE Phase 1 Market Rate Completion 48 months following COE Docusign Envelope ID: OB46EOB4-DD13-4DE7-AAC1-135C6B63199D City Council Agenda Report Irvine Company DDA March 18, 2025 Page 4 Phase 1 Affordable Completion Phase 2 Construction Commencement Project Completion (Market Rate & Affordable) City Rights of Repurchase and Reversion 48 months from Ground Lease 48 months following COE 8 years following COE One of the City's goals for Tustin Legacy is to ensure that development occurs in a timely manner. To that end, the City has negotiated milestone requirements within the Schedule of Performance and preserved the Right of Repurchase and the Right of Reversion for the City. These rights can only be exercised by the City if there is a Material Default by Irvine Co. and they fail to cure the default. Conclusion The Irvine Company is a proven developer of multifamily apartment communities both locally and throughout California with a portfolio of 125 apartment communities consisting of over 65,000 dwelling units. A number of these high -quality apartment communities exist within Tustin, the most notable across Legacy Road from the subject property where The Irvine Company owns and operates the Amalfi apartment community. The Irvine Company has continually demonstrated its expertise, experience and financial capability to execute on apartment communities within the City and provides exceptionally maintained and operated apartment communities which deliver a first-class experience for both residents and surrounding neighbors. The project will provide needed housing opportunities for the City and region across a wide variety of income levels. In compliance with the SLA, the project will provide 25% of the total units as affordable to lower income households and utilizes a density bonus under state law. Further, the 1,336 dwelling units provided by the project will contribute substantially towards meeting the housing goals identified within the City's Housing Element and Regional Housing Needs Allocation requirements. Development of the project will further build -out of Neighborhood D South at Tustin Legacy and will fill in the vacant property gap between The Landing community and the Amalfi apartment community. Project architecture is of a modern classical design, which serves as a transition from the more contemporary Landing development and the classically inspired Amalfi community. The project will include neighborhood serving amenities such as a cafe, park space and paseos, which will all be publicly accessible. Conveyance of the property to The Irvine Company will be a fair market value transaction and The Irvine Company will also pay the associated Project Fair Share Contribution to further implementation of infrastructure improvements at Tustin Legacy. City CFD 18-01 Zone 3 will be established for the property prior to the close of escrow to ensure adequate funding for City services at Tustin Legacy. In addition, obligations under TUSD CFD 15-2 will be met to ensure that TUSD has adequate resources to serve Tustin Legacy. Docusign Envelope ID: OB46EOB4-DD13-4DE7-AAC1-135C6B63199D City Council Agenda Report Irvine Company DDA March 18, 2025 Page 5 ;&V" ned by: IALOvt,(, Lf Brian oncrlef Deputy City Manager — Real Property Signed by: f i�+cCr. Kenne Iguee Real Property Manager Signed by: Ryan Swiontek Deputy Director of Real Property Attachments: 1. Location Map 2. DDA between City of Tustin and Tustin Legacy Acquisition LLC ATTACHMENT 1 - LOCATION MAP EDINGER AVE �J G MOFFET DR Z Q W VICTORY RD �� o Ld TTM 17404 a lNgRNeR A �F LOCATION OF THE Z PROPERTY � QQ BARRANCA PKWY a SCALE: T 1 " = 350' � fik, A FISK-= E N G I N E E R I N G PAGE 1 OF 2 E T T d TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 1 - LOCATION MAP T DFIB(= -� i N G I N E E R l N G ERTY LINE TION OF 'ROPERTY vi SCALE: 1"=250' PAGE 2OF2 E T T LR TUSTIN LEGACY APARTMENT HOMES DISPOSITION AND DEVELOPMENT AGREEMENT FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 (TUSTIN LEGACY) BY AND BETWEEN THE CITY OF TUSTIN AND TUSTIN LEGACY ACQUISITION LLC, A DELAWARE LIMITED LIABILITY COMPANY DATED: 92025 1 3 M 5 TABLE OF CONTENTS Subject and Purpose of Agreement; Parties; Applicable Requirements ........................... I 1.1 Background Regarding MCAS Tustin..................................................................1 1.2 Description of Development Parcels and Real Property .......................................3 1.3 Description of the Market Rate Project and the Affordable Project.....................4 1.4 Parties to the Agreement; Lot 13 PDA.................................................................6 1.5 Federal Requirements Applicable to Tustin Legacy ............................................. 8 1.6 Governmental Requirements Applicable to Tustin Legacy..................................9 1.7 Benefits...............................................................................................................10 1.8 DDA Transaction Expenses and Independent Contract Consideration..............10 1.9 Definitions; Attachments....................................................................................12 Prohibition Against Transfers and Transfer of Control..................................................13 2.1 Importance of Developer Qualifications.............................................................13 2.2 Restrictions on Transfers and Transfers of Control and Releases Following Transfer...............................................................................................................13 2.3 Effect of and Remedies for Improper Transfers or Transfers of Control . .......... 19 2.4 Changes...............................................................................................................20 2.5 Affordable Housing Credits................................................................................20 Representations and Warranties......................................................................................20 3.1 Developer's Representations and Warranties.....................................................20 3.2 Developer Covenants Regarding Representations and Warranties ....................24 3.3 City Representations and Warranties..................................................................24 3.4 City Covenants Regarding Representations and Warranties..............................26 Conveyance of Property from City to Developer...........................................................26 4.1 Conveyance of Property......................................................................................26 4.2 Purchase Price and Project Fair Share Contribution...........................................27 4.3 Payment of Purchase Price..................................................................................27 4.4 Escrow and Joint Escrow Instructions................................................................28 4.5 Property Conveyed"As-Is"................................................................................29 4.6 Developer Covenants; Preconditions to Close of Escrow .................................. 36 4.7 Lot 13 Transfer...................................................................................................42 4.8 Developer Election to Develop Affordable Project Pursuant to an Alternative Affordable Project Development Plan.............................................47 Developer's License, Access to Records and Communications.....................................49 5.1 Limited License..................................................................................................49 5.2 Indemnity............................................................................................................ 50 5.3 Communications with City and Third Parties ..................................................... 51 Tustin TIC DDA 03.11.25 (HM)(3) FINAL i City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 6. Title; Survey....................................................................................................................51 6.1 Survey by Developer........................................................................................... 51 6.2 Permitted Exceptions.......................................................................................... 52 6.3 Supplemental Title Reports................................................................................. 52 6.4 ALTA Policy; Endorsements; Close of Escrow ................................................. 53 6.5 City Title Policy.................................................................................................. 54 7. Closing............................................................................................................................54 7.1 Time and Place of Closing.................................................................................. 54 7.2 Conditions Precedent to Close of Escrow........................................................... 55 7.3 Additional Close of Escrow Conditions............................................................. 61 7.4 Procedures for Conveyance................................................................................61 8. Development of the Property and Additional Covenants of Developer and City........... 64 8.1 Scope of Development........................................................................................ 64 8.2 Development Costs.............................................................................................65 8.3 Schedule of Performance; Completion of Project..............................................66 8.4 Land Use Matters................................................................................................ 67 8.5 Design Approval.................................................................................................69 8.6 Financial Capability and Budget Statement........................................................71 8.7 District Fees and Other Fees and Exactions.......................................................72 8.8 Grading Work; Design and Construction of Improvements...............................78 8.9 Guaranty and Guarantor......................................................................................79 8.10 Replacement of Equity Investor.......................................................................... 80 8.11 Development Covenants.....................................................................................80 8.12 City Rights of Access.......................................................................................... 82 8.13 Disclaimer of Responsibility by City and Exculpation ....................................... 83 8.14 Local, State and Federal Laws............................................................................ 84 8.15 Liens, Taxes and Assessments............................................................................ 85 8.16 Duration of Article 8 Indemnities; Post -Certificate of Compliance Affiliate Responsibilities................................................................................................... 86 9. Certificate of Compliance............................................................................................... 86 9.1 Completion; Schedule of Performance............................................................... 86 9.2 Certificates of Compliance Defined.................................................................... 87 9.3 Market Rate Project Certificate of Compliance Conditions Precedent..............87 9.4 Affordable Project Conditions Precedent...........................................................89 9.5 Conclusive Presumption.....................................................................................91 9.6 Not Evidence.......................................................................................................91 9.7 City Obligations..................................................................................................91 9.8 Effect of Certificate of Compliance; Termination of Agreement ....................... 91 Tustin TIC DDA 03.11.25 (HM)(3) FINAL ii City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 10 11 12 13 14. 15 16. Indemnification and Environmental Provisions.............................................................. 93 10.1 Developer's Indemnification for Non -Environmental Matters ........................... 93 10.2 Environmental Indemnity...................................................................................95 10.3 Effect of Recording of Special Restrictions........................................................ 97 10.4 Claim Response..................................................................................................97 10.5 Release Notification and Remedial Actions.......................................................98 10.6 Conflict with Section 330 and Other Federal Government Obligations.............99 10.7 Insurance and Indemnification..........................................................................100 10.8 Selection of Counsel and Defense Obligations.................................................101 10.9 Settlement Procedures.......................................................................................101 Insurance.......................................................................................................................101 11.1 Required Insurance...........................................................................................101 11.2 General Insurance Requirements......................................................................105 Covenants and Restrictions...........................................................................................107 12.1 Covenants Run With the Land..........................................................................107 12.2 Obligation to Refrain from Discrimination.......................................................107 12.3 Use Covenant....................................................................................................107 12.4 Public Access Covenant....................................................................................107 Affordable Project Requirements.................................................................................108 13.1 Lot 13 PDA, Ground Lease Option, Approved Ground Lease Form and Approved Ground Lease...................................................................................108 13.2 Lot 13 PDA, Ground Lease Option and Approved Ground Lease...................108 13.3 Affordable Project Obligations of Developer...................................................111 13.4 No Cross -Default With Market Rate Project....................................................113 13.5 Exercise by Developer of Affordable Project Enforcement Obligations .......... 114 13.6 Notice of Affordable Project Default; Quarterly Reporting.............................115 Potential Defaults and Material Defaults......................................................................115 14.1 Potential Defaults..............................................................................................115 14.2 Material Defaults..............................................................................................115 14.3 Due Diligence Information; Products...............................................................117 Remedies Prior to Close of Escrow..............................................................................118 15.1 Failure of a Condition Absent a Default...........................................................118 15.2 Failure of Close of Escrow; Developer Default................................................119 15.3 Failure to Close; Default of City.......................................................................121 15.4 Remedies Exclusive..........................................................................................122 15.5 Survival.............................................................................................................123 Remedies for Defaults After The Close of Escrow......................................................123 16.1 General Remedies.............................................................................................123 Tustin TIC DDA 03.11.25 (HM)(3) FINAL iii City of Tustin/Irvine Company Por. 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Areas 213, 2C and 8 17 16.2 Lien Rights........................................................................................................123 16.3 Right of Repurchase..........................................................................................124 16.4 The Right of Reversion.....................................................................................127 16.5 Access and Inspection.......................................................................................131 16.6 Obligations and Release Following Repurchase or Reversion .........................132 16.7 Cooperation of Developer.................................................................................132 Mortgages and Mortgagee Protection for Affordable Project......................................133 17.1 Restrictions On Mortgage.................................................................................133 17.2 Restrictions on Transfer to Mortgagee.............................................................134 17.3 Acknowledgment by City of Permitted Leasehold Mortgagee .........................136 17.4 Change in Loan Documents, Special Restrictions and/or Landscape Installation and Maintenance Agreement.........................................................136 17.5 Condemnation or Insurance Proceeds...............................................................137 17.6 Constructive Notice and Acceptance................................................................137 17.7 Bankruptcy Affecting Developer......................................................................137 General Provisions........................................................................................................137 18.1 Applicable Law; Consent to Jurisdiction; Service of Process ..........................137 18.2 Legal Fees and Costs........................................................................................138 18.3 Memorandum of DDA; Modifications or Amendments...................................138 18.4 Further Assurances............................................................................................139 18.5 Rights and Remedies Are Cumulative; Limitation on Damages ......................139 18.6 Notices, Demands and Communications between the Parties ..........................140 18.7 Delay.................................................................................................................142 18.8 Conflict of Interest............................................................................................145 18.9 Non -liability of City Officials and City or Developer Employees...................145 18.10 Inspection of Books and Records.....................................................................145 18.11 Consents and Approvals...................................................................................145 18.12 Real Estate Commissions..................................................................................146 18.13 Date and Delivery of Agreement; Term of Agreement....................................147 18.14 Constructive Notice and Acceptance................................................................147 18.15 Survival of Covenants, Representation and Warranties...................................147 18.16 Construction and Interpretation of Agreement.................................................148 18.17 Time of Essence................................................................................................149 18.18 Fees and Other Expenses..................................................................................149 18.19 No Partnership..................................................................................................149 18.20 Binding Effect...................................................................................................149 18.21 No Third -Party Beneficiaries............................................................................150 18.22 Counterparts......................................................................................................150 Tustin TIC DDA 03.11.25 (HM)(3) FINAL iv City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 18.23 Duplicate Originals, Entire Agreement and Waivers ................ 18.24 Confidentiality........................................................................... 18.25 Proprietary and Governmental Roles; Actions by Parties......... 18.26 Performance of Acts on Business Days ..................................... Tustin TIC DDA 03.11.25 (HM)(3) FINAL v City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 DISPOSITION AND DEVELOPMENT AGREEMENT FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 (TUSTIN LEGACY) This DISPOSITION AND DEVELOPMENT AGREEMENT FOR PORTIONS OF DISPOSITION AREAS 213, 2C AND 8 (TUSTIN LEGACY) ("Agreement") is entered into as of , 2025 ("Effective Date") by and between the CITY OF TUSTIN (as more fully defined in Section 1.4.1, "City") and TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company (as more fully defined in Section 1.4.2, "Developer"). The City and Developer are sometimes referred to in this Agreement individually as a "Party" and collectively as the "Parties". The Parties agree as follows: 1. Subject and Purpose of Agreement, Parties, Applicable Requirements. 1.1 Background Regarding MCAS Tustin. 1.1.1 Pursuant to the Defense Base Closure and Realignment Act of 1990 (Part A of Title XXXIX of Public Law 101-510; 10 U.S.C. Section 2687 Note), as amended, the Federal Government (see Section 1.9 and Attachment 1 for definitions of initially capitalized terms in this Agreement) determined to close the Marine Corps Air Station -Tustin ("MCAS Tustin") located substantially in the City of Tustin, California. In 1992, the City was designated as the Lead Agency or Local Redevelopment Authority for preparation of a reuse plan for MCAS Tustin to facilitate the closure of MCAS Tustin and its reuse in furtherance of the economic development of the City and surrounding region. The MCAS Tustin Reuse Plan developed in accordance with this procedure was adopted by the City Council of the City of Tustin ("City Council") on October 17, 1996 and amended in September 1998 ("Reuse Plan'). 1.1.2 A Final Joint Environmental Impact Statement/Environmental Impact Report for the Disposal and Reuse of MCAS Tustin and Mitigation Monitoring and Reporting Program for the Final EIS/EIR were adopted by the City on January 16, 2001. In March 2001, a record of decision was issued by the Department of the Navy (hereinafter, "Navy") approving the Final EIS/EIR and the Reuse Plan with several subsequent supplements and addenda approved by the City (the original EIS/EIR, as so amended, "Final EIS/EIR"). 1.1.3 In May 2002, the Navy approved an "Economic Development Conveyance of Property at MCAS Tustin" and agreed to convey approximately 1,153 acres of MCAS Tustin to the City. On May 13, 2002, a total of approximately 977 acres, including the Development Parcels which are the subject of this Agreement were conveyed by the Navy to the City by quitclaim deed, as further described below, in accordance with the provisions of that certain Memorandum of Agreement by and between The United States of America (through the Secretary of the Army or designee) and the City dated May 13, 2002 ("Memorandum of Agreement"). The additional approximately 177 acres were made subject to a ground lease by the City from the Navy and portions thereof have subsequently been conveyed by the Navy to the City pursuant to subsequent quitclaim deeds. The approximately 1,153 acres of MCAS Tustin located within the City of Tustin and either conveyed by the Navy to the City or subject to ground lease between the Navy and the City are referred to in this Agreement as "Tustin Legacy". Tustin TIC DDA 03.11.25 (14M)(3) FINAL 1 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 1.1.4 On February 3, 2003, the City adopted an ordinance approving the MCAS Tustin Specific Plan/Reuse Plan setting forth the zoning and entitlement framework for future development of Tustin Legacy. Since its initial adoption, the City has approved numerous Specific Plan amendments. All references in this Agreement to the "Specific Plan" shall be deemed to refer to the MCAS Tustin Specific Plan/Reuse Plan, as the same may have been previously or may be subsequently amended. The Specific Plan conforms to and implements the Reuse Plan and the City's General Plan. 1.1.5 The City desires to effectuate development of Tustin Legacy through the sale and development of property in accordance with applicable federal and local requirements. Tustin Legacy shall be developed in accordance with all applicable City requirements, including the Specific Plan. 1.1.6 On September 15, 2021, the City initiated a competitive RFP process through a solicitation requesting proposals from residential developers and all entities identified in California Govt. Code ("Govt. Code") Section 54222(a) seeking development of a mixed use commercial and multi -family residential community with respect to approximately 19.4 acres of land located within portions of Disposition Areas 2B, 2C and 8 and bounded by Compass Avenue, Warner Avenue, Tustin Ranch Road and Legacy Road referred to in this Agreement as the Development Parcels (defined below). The Irvine Company LLC, a Delaware limited liability company ("The Irvine Company"), which is under common ownership with Initial Developer, submitted a proposal for purchase and development of the Development Parcels in response to the RFP process. 1.1.7 After consideration of the various responses to the RFP, and negotiations with a selected respondent that were unsuccessful, the City reevaluated the proposals received and determined to enter into the ENA and this Agreement with Developer for a multi- family residential community with respect to the Development Parcels, as the SLA Regulations do not require mixed use development. 1.1.8 Following the selection of The Irvine Company, the City and The Irvine Company entered into that certain Exclusive Negotiating Agreement (Tustin Legacy Portion of Disposition Areas 213, 2C and 8) dated as of May 21, 2024 as amended by that certain First Amendment to Exclusive Negotiating Agreement (Tustin Legacy Portion of Disposition Areas 2B, 2C and 8) dated as of October 1, 2024 (as thereafter amended pursuant thereto, the "ENA"). This Agreement is entered into by the Parties pursuant to the ENA. 1.1.9 Consistent with the requirements of Govt. Code Sections 54220-54234 ("Surplus Land Act"), the California Department of Housing and Community Development ("HCD" ), issued Updated Surplus Land Act Guidelines on August 1, 2024 ("SLA Guidelines", and collectively with the Surplus Land Act, and as each may be amended from time to time the "SLA Regulations"), twenty five percent (25%) of the total number of units must be Lower Income Units (defined below). To ensure compliance with the SLA Regulations, prior to approval of this Agreement, the City submitted to HCD: (i) a description of the entities invited to participate in the competitive developer solicitation as described in the ENA and (ii) Resolution 24-59 adopted Tustin TIC DDA 03.11.25 (14M)(3) FINAL 2 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 by the City Council on August 20, 2024, declaring the Development Parcels to be exempt surplus land under Govt. Code Section 54221(f)(1)(H); and HCD, by letter dated August 27, 2024, confirmed that the Development Parcels are exempt surplus land under such Govt. Code provision. 1.2 Description of Development Parcels and Real Property. 1.2.1 Definition of Development Parcels. The City is the owner of approximately 19.4 acres of land located in the City of Tustin, County of Orange, California, legally described and depicted on Attachment 2A and depicted on Attachment 2B ("Development Parcels"). As of the Effective Date, the Development Parcels are owned in fee by the City. The Development Parcels comprise a portion of the land conveyed by the Navy to the City in Navy Quitclaim Deed D and Environmental Restriction Pursuant to Civil Code Section 1471 dated May 13, 2002, and Recorded in the Orange County Clerk Recorder Office on May 14, 2002 as Instrument No. 20020404594 ("Federal Deed"). The Development Parcels are located in Specific Plan Neighborhood D, Planning Areas 13 and 14 and are referred to in the Navy Reuse Plan as portions of Parcels 8, 14, and 40 and in the Navy Quitclaim Deed as portions of Parcels I-D-3 and I-D-4. Prior to the transaction described in this Agreement, the City has Recorded pursuant to the Subdivision Map Act and the City Code, Final Tract Map No. 18197 ("City Final Map"), subdividing the Development Parcels. The Development Parcels are bounded by Warner Avenue, Legacy Road, Compass Avenue and Tustin Ranch Road. The City Final Map includes the following parcels of land as further legally described on Attachment 2A and depicted on Attachment 2B and as further depicted on the site plan attached as Attachment 3, as the same may be modified from time to time in accordance with this Agreement ("Site Plan"): (i) Lot 11 of the City Final Map, also referred to as "Lot 11", comprised of approximately 7.04 acres; (ii) Lot 12 of the City Final Map, also referred to as "Lot 12", comprised of approximately 6.93 acres; and (iii) Lot 13 of the City Final Map, also referred to as "Lot 13", comprised of approximately 5.45 acres. 1.2.2 Definition of Real Property. The term "Real Property" as used in this Agreement is the real property component of the Property to be conveyed to Developer pursuant to this Agreement and is comprised of the Market Rate Real Property and the Lot 13 Real Property (each defined below) and more specifically comprised of the Development Parcels excluding the following rights and interests of the City which shall be reserved to the City in the Quitclaim Deed: 1.2.2.1 Any and all oil, oil rights, minerals, mineral rights, natural gas, natural gas rights and other hydrocarbons by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may be within or under the Development Parcels together with the perpetual right of drilling, mining, exploring for and storing in and removing the same from the Development Parcels or any other land, including the right to whipstock or directionally drill and mine from lands other than the Development Parcels, oil or gas wells, tunnels and shafts into, through or across the subsurface of the Development Parcels Tustin TIC DDA 03.11.25 (14M)(3) FINAL 3 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to re -drill, re -tunnel, equip, maintain, repair, deepen and operate any such well or mines; but without, however, the right to enter upon or use the surface of the Development Parcels in the exercise of such rights or otherwise adversely affect the use or operation of the Development Parcels as anticipated by this Agreement or the structural integrity of any improvements on the Development Parcels; and 1.2.2.2 Any and all water, water rights or interests therein appurtenant or relating to the Development Parcels or owned or used by the City in connection with or with respect to the Development Parcels no matter how acquired by the City, whether such water rights shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the perpetual right and power to explore, drill, re -drill and remove the same from or in the Development Parcels, to store the same beneath the surface of the Development Parcels and to divert or otherwise utilize such water, rights or interests on any other property owned or leased by the City; but without, however, the right to enter upon or use the surface of the Development Parcels in the exercise of such rights or otherwise adversely affect the use or operation of the Development Parcels as anticipated by this Agreement or the structural integrity of any improvements on the Development Parcels. 1.2.2.3 Those excess development rights reserved to the City as described in Section 4.1.2. Reservation by the City of the rights and interests in Sections 1.2.2.1 and 1.2.2.2 shall not be deemed to limit Developer's right to construct foundations, utilities and other subsurface improvements for the purpose of constructing the Project and otherwise engage in subsurface construction activity in order to construct the Project. 1.2.3 Mapping. The City has approved vesting tentative tract map (Tract Map No. 19353) for the Development Parcels pursuant to the Subdivision Map Act and the City Code (as approved by the City Council as part of the Applicable Approvals, "Vesting Tentative Tract Map") and shall, when submitted by the Developer, process in its Governmental Capacity and upon approval by it and the Orange County Surveyor's office cause the Recording of the final map based upon the Vesting Tentative Tract Map ("Developer Final Tract Map"). Developer shall enter into the Subdivision Improvement Agreement with the City prior and as a condition to Recording of the Developer Final Tract Map. Phasing of the Project as described in Section 1.3.4 is conditioned on Recording of the Developer Final Tract Map. Developer shall cause the Developer Final Tract Map to be Recorded no later than when required by the Schedule of Performance. 1.3 Description of the Market Rate Project and the Affordable Project. 1.3.1 Purpose. The purpose of this Agreement is to (i) effectuate the Specific Plan (including the Reuse Plan incorporated therein), in accordance with the terms and conditions set forth therein and in the Memorandum of Agreement and the Federal Deed, through disposition and development of portions of Tustin Legacy as further described in this Agreement and (ii) to provide for the sale and conveyance of the Property, for the maintenance and use of the Property Tustin TIC DDA 03.11.25 (14M)(3) FINAL 4 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 and certain related improvements by Developer and for the construction of the Market Rate Project by Developer and the Ground Lease of the Lot 13 Property to an Affordable Housing Developer for construction of the Affordable Project on the Lot 13 Property in accordance with the terms and conditions of this Agreement. The Market Rate Project and the Affordable Project are referred to in this Agreement collectively as the "Project". 1.3.2 Market Rate Proiect and Market Rate Project Improvements Definitions. This Agreement provides for development by Developer of the Market Rate Real Property with the Market Rate Project Horizontal Improvements, the Market Rate Project Vertical Improvements (each defined below), all required on -site infrastructure and a complete accompanying set of high -quality tenant amenities (e.g., swimming pools, fitness facility and Developer managed cafe (with cafe open to public)), including Common Area Improvements on identified common open space, with a portion of such open space to be made accessible to the public pursuant to a Recorded Public Access Covenant (defined below) which shall be designed and constructed as further set forth in Article 8 and the Scope of Development attached hereto as Attachment 8. The Market Rate Project Horizontal Improvements, the Market Rate Project Vertical Improvements, including the Market Rate Units, the Common Area Improvements are referred to in this Agreement as the "Market Rate Project Improvements" and the development, construction, maintenance, leasing and use of the Market Rate Project Improvements within the boundaries of and/or relating to the Market Rate Real Property is referred to in this Agreement as the "Market Rate Project". 1.3.3 Affordable Proiect and Affordable Project Improvements Definitions. This Agreement further provides for development by Developer of the Lot 13 Real Property with the Affordable Project Horizontal Improvements, the Affordable Project Vertical Improvements (each defined below), all required on -site infrastructure and a complete accompanying set of high -quality amenities, including common open space, with a portion of such open space, including the public paseos, to be made accessible to the public pursuant to a Recorded Public Access Covenant, which shall be designed and constructed as further set forth in Article 8 and the Scope of Development attached hereto as Attachment 8. The Affordable Project Horizontal Improvements, the Affordable Project Vertical Improvements including the Lower Income Units and four (4) market rate units for managers/staff, with at least one (1) in each Building constructed on the Lot 13 Real Property, and associated Common Area Improvements are collectively referred to in this Agreement as the "Affordable Project Improvements" and the development, construction, maintenance, leasing and use of the Affordable Project Improvements on the Lot 13 Real Property is referred to in this Agreement as the "Affordable Project". 1.3.4 Phasing of Proiect. The Project may be constructed in the following phases (each a "Phase" and collectively, "Phases"), as depicted on the Phasing Plan attached hereto as Attachment 6 which Phases may be commenced and constructed in the following order or concurrently: 1.3.4.1 "Phase 1" is comprised of Building 1 and Building 2 (each as shown on the Phasing Plan) on Lot 11, to contain a maximum of 464 Market Rate Units (the final number of such Market Rate Units to be determined by the Approved Plans), and Building 5 (as Tustin TIC DDA 03.11.25 (14M)(3) FINAL 5 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 shown on the Phasing Plan) on Lot 13, to contain a maximum of 178 Lower Income Units but in no event less than twenty five percent (25%) of the total units within Phase 1 (the final number of such Lower Income Units to be determined by the Approved Plans) and between one (1) and three (3) manager/staff units (provided that the total number of manager/staff units on Lot 13 shall not exceed four (4) units) as contemplated by the Scope of Development and as further depicted on the Site Plan; and 1.3.4.2 "Phase 2" is comprised of Building 3 and Building 4 (each as shown on the Phasing Plan) on Lot 12, to contain a maximum of 534 Market Rate Units (the final number of such Market Rate Units to be determined by the Approved Plans), and Building 6 (as shown on the Phasing Plan) on Lot 13, to contain a maximum of 156 Lower Income Units but in no event shall the total amount of Lower Income Units constructed in both Phase 1 and Phase 2 be less than twenty five percent (25%) of the total Residential Units constructed on the Real Property (the final number of such Lower Income Units to be determined by the Approved Plans) and between one (1) and three (3) manager/staff units (provided that the total number of manager/staff units on Lot 13 shall not exceed four (4) units) as contemplated by the Scope of Development and as further depicted on the Site Plan. Notwithstanding any provision in this Agreement to the contrary, (i) the final number of Residential Units in any particular Building shall be as set forth in the Approved Plans and the number of Residential Units actually constructed on each Parcel shall be established in the Certificate of Compliance for such Parcel, (ii) the Market Rate Units and/or Lower Income Units in a Building in any Phase may be opened and leased to tenants at any time from and after the issuance by the City of a final certificate of occupancy or temporary certificate of occupancy (if issued in the City's Governmental Capacity) for such Building, and (iii) for purposes of calculating the number of Lower Income Units required to be constructed on Lot 13, the number of Market Rate Units on Lot 11 and Lot 12 collectively shall not exceed nine hundred ninety eight (998) Residential Units. 1.3.5 Other Agreements. At the Close of Escrow, the City intends to convey the Property to Developer, in accordance with the terms and conditions of this Agreement. As further set forth in this Agreement, at or prior to the Close of Escrow the City intends to establish Special Restrictions and an Affordable Housing Declaration and to record certain additional covenants, conditions and restrictions with respect to the Property as further described in this Agreement and the Attachments. 1.4 Parties to the Agreement; Lot 13 PDA. 1.4.1 Cam. The City is a municipal corporation of the State. The City has been recognized as the Local Redevelopment Authority by the Office of the Secretary of Defense for the former Marine Corps Air Station, Tustin, for purposes of the Base Closure Law. The term "City" as used in this Agreement shall mean the City of Tustin and each assignee or successor to the City's rights, powers and responsibilities, provided that when in this Agreement the term "City and its Governmental Successors" is used, the term "City" shall be deemed to mean solely the City of Tustin. The City Council shall have the right, in its sole discretion, to assign its rights and Tustin TIC DDA 03.11.25 (14M)(3) FINAL 6 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 obligations to any agency or instrumentality of the City. The principal office of the City and mailing address is 300 Centennial Way, Tustin, California 92780. 1.4.2 Developer; Initial Developer. The Developer as of the Effective Date is Tustin Legacy Acquisition LLC, a Delaware limited liability company, and is wholly owned by TIC Acquisition and Development LLC, a Delaware limited liability company ("TICAD") and is under common ownership with The Irvine Company. Tustin Legacy Acquisition LLC is also referred to in this Agreement as the "Initial Developer". The principal office of Developer and its mailing address is c/o The Irvine Company LLC, 550 Newport Center Drive, Newport Beach, CA 92660-7011, attention Todd Keller and Kevin Roberts. Developer shall have the right, solely in accordance with the provisions of Article 2 and the other terms and conditions set forth in this Agreement, to assign its rights and obligations under this Agreement and the Other Agreements and in such event, Initial Developer and each Transferee that is a Successor Owner with respect to all of a Transferor's interest in the Transferable Interests shall thereafter (and may concurrently with the Transferor) be "Developer" under the terms of this Agreement. 1.4.3 Responsibilities of Developer; Delegation of Affordable Project Provisions to Affordable Housing Developer. Developer shall be responsible to cause the design, development, construction and Completion of the Market Rate Project and the Affordable Project (and to cause the operation of the same to the extent required by this Agreement), but Developer may delegate its obligations with respect to the Affordable Project Provisions to an Affordable Housing Developer in accordance with the provisions of this Agreement. The City has approved (i) USA Properties Fund, Inc., a California corporation ("USA Properties"), or (ii) an assignee of USA Properties that is a limited partnership Controlled by USA Properties (or a corporation wholly owned by USA Properties), and such entities, and each Person to whom the interests of such Person under the Lot 13 PDA, if then in effect, and the interests of Ground Lessee under the Ground Lease, if then in effect, are assigned in accordance with this Agreement and an Approved Ground Lease are referred to in this Agreement as "Affordable Housing Developer". Nothing in this Agreement requires City consent to the identity of the managing general partner or limited partner of the Affordable Housing Developer or any future transfer or assignment thereof so long as USA Properties, Developer, Equity Investor or a wholly -owned affiliate of any of the foregoing or any other City -approved developer remains in Control of such Affordable Housing Developer. As of the Effective Date, Initial Developer and the City shall have approved a form of Property Development Agreement (the "Lot 13 PDA") for the purposes of this Agreement pursuant to which Developer, subject to the closing conditions contained therein and subject to the Lot 13 Transfer Conditions contained in this Agreement, would require an Affordable Housing Developer to Complete the Affordable Project and pursuant to which Developer would delegate to the Affordable Housing Developer the Affordable Project Provisions. It is anticipated that USA and Developer will execute the Lot 13 PDA and the Ground Lease Option prior to the Effective Date, however, Developer may at any time, replace USA Properties with another Affordable Housing Developer authorized by this Agreement, either (A) by directly taking responsibility for performance of the Affordable Project Provisions in accordance with the requirements of Section 4_8, referred to in this Agreement as an "Alternative Affordable Project Development Plan", (B) with an Approved Alternate Affordable Housing Developer, pursuant to Lot 13 Transfer (or following a Lot 13 Transfer, by assignment of the Affordable Housing Developer's interest in an Tustin TIC DDA 03.11.25 (14M)(3) FINAL 7 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Approved Ground Lease in accordance with Section 13.3.3), or (C) with another developer (or assignee that is a limited partnership Controlled by such entity) that constructs and operates affordable housing in California and approved in writing by the City in its sole discretion as Affordable Housing Developer. Under the terms of the Lot 13 PDA, Developer intends to grant to an Affordable Housing Developer an option (the "Ground Lease Option") to enter into a ground lease substantially in the form and substance of the ground lease attached to the Lot 13 PDA (the "Approved Ground Lease Form"). The Lot 13 PDA, the Ground Lease Option and the Approved Ground Lease Form shall have been approved by the City in its sole discretion prior and as a condition to the execution by the City of this Agreement. Notwithstanding the delegation of Developer's obligations to the Affordable Housing Developer related to the Affordable Project contained in the foregoing instruments, the Parties agree that Initial Developer and its successors and assigns that are designated as Developer pursuant to this Agreement shall not be released from the Affordable Project Obligations until issuance of the Certificate of Compliance for the applicable Parcel within the Affordable Project, whereupon, and notwithstanding any provision in this Agreement to the contrary, Developer shall be automatically released from the Affordable Project Obligations applicable to that Parcel for which the Affordable Project Certificate of Compliance has been issued. For avoidance of doubt, the City does not have any approval rights over the selection of any contractors or consultants utilized by Developer or Affordable Housing Developer to Complete the construction of the Improvements. 1.4.4 Relationship of City and Developer. The Parties acknowledge and agree that the relationship of the City and Developer is neither that of a partnership nor that of a joint venture. Notwithstanding any other provision of this Agreement, Developer is not, and shall not be deemed to be, the agent of the City for any purpose, and shall not have the power or the authority to bind the City to any contractual or other obligation. Prior to the Close of Escrow, Developer may only characterize itself to third parties as the prospective purchaser and/or developer of the Property. Developer shall not at any time hold itself out to the City or to any other third party as an agent of the City, and shall not, by any act or omission, mislead any third party into believing, or allow any third party to continue in the mistaken belief that Developer is an agent of the City or has the power or authority to bind the City to any contractual or other obligation. 1.5 Federal Requirements Applicable to Tustin Legacy. 1.5.1 Federal Economic Development Conveyance. The Parties acknowledge and agree that this Agreement is entered into as part of an economic development conveyance of Tustin Legacy to the City pursuant to the Base Closure Law, the Memorandum of Agreement and the terms and conditions of the Federal Deed, including the environmental restriction pursuant to California Civil Code Section 1471 contained therein. 1.5.2 Memorandum of Agreement and Federal Deed. This Agreement is and shall be subject to the terms and conditions of the Memorandum of Agreement and the Federal Deed and the rights, obligations and remedies of the Federal Government under the Federal Deed, and nothing contained in this Agreement shall be construed in a manner that is inconsistent with the rights, obligations and remedies of the Federal Government under the Federal Deed. Accordingly, if any provision of this Agreement contradicts, modifies or in any way changes the Tustin TIC DDA 03.11.25 (14M)(3) FINAL 8 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 terms of the Memorandum of Agreement or the Federal Deed, the terms of the Memorandum of Agreement and Federal Deed shall prevail and govern. 1.6 Governmental Requirements Applicable to Tustin Legacy. 1.6.1 Compliance with SLA Regulations. The City is required by law to comply with the SLA Regulations with respect to the development of the Real Property, including by determining that the proposed development described by this Agreement is consistent with the requirements of the Surplus Land Act exemption granted to local agencies in Govt. Code Section 5422 1 (f)(1)(H). Developer acknowledges that for the benefit of the City as a condition to the Close of Escrow, the City shall Record an Affordable Housing Declaration substantially in the form and substance of the instrument attached as Attachment 25 to this Agreement ("Affordable Housing Declaration") requiring that twenty five percent (25%) of the total number of units on the Development Parcels (in the aggregate) shall be restricted as Lower Income Units. The Affordable Housing Declaration shall comply with Govt. Code Sections 54220-54234 and 65915. The Affordable Housing Declaration shall be enforceable in accordance with its terms by the City against Developer and as those terms are defined therein any "Owner", which includes a "Successor Owner" as defined therein, and, as further set forth therein, with respect to any Ground Lessee of any portion of the Lot 13 Real Property. Nothing in this Agreement or in the Affordable Housing Declaration relieves the Parties from third party liability under the SLA Regulations. Development of the Affordable Project on Lot 13 as described in this Agreement is and shall be structured to comply with the Affordable Housing Declaration. 1.6.2 Compliance with Other Governmental Requirements. This Agreement is subject to all Governmental Requirements, including the General Plan, the Specific Plan, the City Code, the SLA Regulations and applicable to the Real Property, provided, however, that the City acknowledges and agrees that, substantially concurrently with the execution of this Agreement, the City and Developer are entering into a statutory development agreement pursuant to Govt. Code Section 65864 et seq. ("Development Agreement" or "DA")) relating to the Property and the Project and that any provisions of this Agreement with respect to the rights and obligations of Developer under any Governmental Requirements imposed by the City relating to entitlements or development of the Real Property shall be subject to the provisions of the Development Agreement and in the event of any inconsistency between such provisions under this Agreement and the DA, the Governmental Requirements required to be imposed pursuant to the DA shall control. 1.6.3 Not a Development Agreement. This Agreement is not a development agreement as provided in Govt. Code Section 65864 and, as further set forth in Section 8.4.4, is not a grant of any entitlement, permit, land use approval, or vested right in favor of Developer, the Market Rate Project, the Affordable Project or the Property. The City shall use good faith efforts, within applicable legal constraints and consistent with applicable City policies, to take such actions as may be necessary or appropriate to effectuate and carry out this Agreement in a timely and commercially reasonable manner. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 9 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 1.7 Benefits. The disposition of the Property, the development and Completion of the Market Rate Project and the Affordable Project pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the citizens of the City and the health, safety and welfare of its residents, and are in accord with the public purposes and provisions of applicable federal, State, and local laws and requirements. 1.8 DDA Transaction Expenses and Independent Contract Consideration. 1.8.1 ENA Deposits and Transaction Expenses. Pursuant to the ENA, Developer has paid to the City deposits totaling Three Hundred Twenty Thousand Dollars ($320,000.00) ("ENA Deposit") to be used by the City to pay "City Transaction Expenses" as defined in the ENA. 1.8.2 City Costs Deposit; Independent Consideration. Upon the execution of this Agreement by the Parties, the funds remaining in the ENA Deposit shall be the "City Costs Deposit", provided that Developer shall, not later than three (3) Business Days following the Effective Date, deliver to the City additional funds sufficient to bring the City Costs Deposit to $50,000.00 (the "City Costs Deposit"). The City Costs Deposit shall be deposited by the City in an account in a bank or trust company selected by the City. If any interest is paid on such account, such interest shall accrue to any balances in the account for the benefit of Developer and as additional security for Developer obligations under this Section 1.8. One Hundred Dollars ($100.00) of the City Costs Deposit shall be retained by the City as "Independent Contract Consideration". The City Costs Deposit may be used by the City to pay the City's DDA Transaction Expenses and the City Costs Deposit will be depleted accordingly. Until the earliest to occur of (i) Recording by the City of the Final Certificate of Compliance or (ii) termination of this Agreement, if at any time the amount of funds in the City Costs Deposit account (including interest accrued thereon) is depleted below Twenty Five Thousand Dollars ($25,000), Developer shall be required to pay to the City each time an additional amount, as specified by the City in writing, to replenish the City Costs Deposit to Fifty Thousand Dollars ($50,000). Each such payment shall be deposited by the City into the City Costs Deposit account to be applied to DDA Transaction Expenses in accordance with the provisions of Section 1.8.3. 1.8.3 Payment of DDA Transaction Expenses. Developer shall pay all DDA Transaction Expenses incurred by the City during the Term, whether arising with respect to matters or incurred by the City prior to or following Close of Escrow until the Recording by the City of the Final Certificate of Compliance or the earlier termination of this Agreement. The City Costs Deposit has been established to fund the DDA Transaction Expenses and may be used by the City for such purpose and shall be depleted accordingly. Immediately upon incurring any DDA Transaction Expenses or receipt of an invoice from third parties for same, the City shall have the right to deduct the amounts due it on account thereof from the City Costs Deposit. In addition, at the Close of Escrow, the City shall be entitled to deduct from the City Costs Deposit the payment of all DDA Transaction Expenses then unpaid and if such amounts are insufficient to cover all DDA Transaction Expenses incurred by the City to the Close of Escrow, Developer shall, as a Tustin TIC DDA 03.11.25 (14M)(3) FINAL 10 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 condition to the Close of Escrow, pay the full amount of DDA Transaction Expenses incurred by the City to and including the Closing Date and then remaining unpaid and such additional amount as is required to maintain a City Costs Deposit held by the City of Fifty Thousand Dollars ($50,000.00). If following Recording by the City of the Final Certificate of Compliance, there is any City Costs Deposit amount held by the City after application of such funds by the City to reduce the DDA Transaction Expenses arising or incurred by the City to such date, the City shall refund such amount to Developer. If the amount of the City Costs Deposit is not sufficient to fund all DDA Transaction Expenses arising or incurred prior to such date, Developer shall pay the outstanding amounts due with respect to DDA Transaction Expenses to the City within thirty (30) Business Days following receipt of an invoice from the City therefore, provided that the City shall first apply the amount of the City Costs Deposit, if any, then held by it in satisfaction of such invoice, and shall reflect the amount of such credit on the invoice. 1.8.4 Payment of DDA Transaction Expenses. Absent manifest error, the determination of costs, expenses, and fees constituting City Transaction Expenses shall be made by the City in its sole discretion and City shall provide to Developer, on a quarterly basis during the Term, summary written notices, including non -confidential summary invoices of third party consultants from the City setting forth the identity of the provider or cost and the amounts attributable and/or paid to each that constitute City Transaction Expenses and related non - confidential documents evidencing such expenses. Developer shall have the right to reasonably object to any City Transaction Expenses upon written notice thereof delivered to the City within fifteen (15) calendar days following Developer's receipt of such notice specifying the grounds for such objection and to request in writing to the City reasonable further non -confidential information supporting any City Transaction Expenses. 1.8.5 Exclusions from DDA Transaction Expenses. The City and Developer hereby acknowledge and agree that the DDA Transaction Expenses do not include: (i) any fees or deposits required of Developer for processing Entitlements applications; (ii) any fees or costs for complying with provisions of CEQA or its State CEQA implementing regulations or other matters identified in Section 8.4; (iii) any costs to review or approve any applications or submittals by Developer to the City in connection with the Market Rate Project and/or the Affordable Project; (iv) the Development Costs, Project Fair Share Contribution or any other development impact fees, exactions or other costs imposed as conditions of approval or pursuant to the Development Agreement or mitigation measures with respect to the Entitlements or pursuant to the Other Agreements; (v) the marketing fees set forth in Section 8.7.4; or (vi) any other matters in this Agreement that expressly require Developer to pay, at its sole cost, for expenses incurred in connection with this Agreement that are not otherwise duplicative of other fees to be paid to the City in connection with the Market Rate Project and/or the Affordable Project. The obligation of Developer to pay for the DDA Transaction Expenses pursuant to this Section 1.8 shall not diminish or limit Developer's obligation to pay for any of the costs in the preceding sentence. 1.8.6 The provisions of this Section 1.8 shall survive the termination of this Agreement until all DDA Transaction Expenses due are paid. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 11 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 1.9 Definitions, Attachments. 1.9.1 Definitions. Capitalized terms used in this Agreement, including in the Attachments attached hereto, unless otherwise defined in this Agreement, shall have the respective meanings specified in the Glossary of Defined Terms attached hereto as Attachment 1. Unless otherwise indicated, references in this Agreement to articles, sections, paragraphs, subsections, clauses, exhibits, attachments and schedules are to the same contained in or attached to this Agreement and all attachments and schedules referenced in this Agreement are incorporated in this Agreement by this reference as though fully set forth in this Section. 1.9.2 "Substantially in the Form and Substance." Wherever used in this Agreement, the term "substantially in the form and substance" shall mean that the referenced document, when compared to the applicable Attachment or previously approved form of document, (i) is consistent in all material respects, and none of the modifications in the referenced document materially diminish a Parry's rights or materially increase such Party's obligations under this Agreement, as determined by the Party for whose benefit the condition is written, in its sole discretion (unless another standard is provided with respect to the Affordable Project for the referenced documents) or (ii) is otherwise in such form and substance mutually agreed upon by the Parties in their sole discretion. In the event the Parties disagree whether or not a particular document is substantially in the form and substance of the applicable Attachment or previously approved form of document, the Parties shall promptly meet and confer in good faith to seek to resolve such disagreement. 1.9.3 Includes and Including. As used in this Agreement the words "include" and "including" mean, respectively, "include, without limitation" and "including, without limitation". 1.9.4 "Shall"; "Shall Not"; "May". When stated in connection with performance by a Parry, the word "shall" imposes a mandatory requirement on that Party to perform the stated act or requirement (and shall be synonymous with "must") and the term "shall not" imposes a mandatory requirement on that Parry not to perform the stated act or requirement (and shall be synonymous with "must not"). The word "may" is permissive and does not impose any mandatory requirement on a Party to perform the stated act. 1.9.5 "Sole". When stated in connection with the discretion of any Party (i.e., in the "sole discretion" of such Party, the word "sole" means "sole and absolute". 1.9.6 "Binding Upon Each and Every Person Claiming By, Through or Under Developer or any Successor Owner". When stated in this Agreement, the term "binding upon each and every Person claiming by, through or under Developer or any Successor Owner" shall mean and include with respect to the Affordable Project Provisions, Affordable Project, Affordable Project Improvements and Affordable Property only, each Person that is Affordable Housing Developer during any period in which such Person is the Ground Lessee under a Ground Lease and, for avoidance of doubt, includes each Successor Ground Lessee during any period in which it is the Ground Lessee under a Ground Lease. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 12 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 2. Prohibition Against Transfers and Transfer of Control. 2.1 Importance of Developer Qualifications. Developer represents and agrees that its undertakings pursuant to this Agreement are for the purpose of development of the Market Rate Project and the Affordable Project and not for speculation in land holding. Developer recognizes and agrees that the qualifications and identity of Initial Developer, its Key Employees and its Controlling Person and the fact that TICAD, an entity wholly -owned indirectly by Initial Developer's Controlling Person, will act as Guarantor and Equity Investor, as well as the restrictions on Mortgages set forth in this Agreement are of particular concern to the City and community. Developer further acknowledges the importance of the development of the Property and Tustin Legacy to the general welfare of the community and to provide affordable housing in the City and that a Transfer of Control is for practical purposes a transfer of rights and obligations under this Agreement or the Property and for the foregoing reasons, agrees to the following restrictions on Transfer and Transfer of Control during the Term. Transfers and Transfers of Control. 2.2 Restrictions on Transfers and Transfers of Control and Releases F Transfer. 2.2.1 For the reasons set forth in Section 2.1, Developer, on behalf of itself, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner (but specifically excluding any End Users), acknowledges and agrees that, prior to Recording by the City of the applicable Certificate of Compliance for the Parcel at issue, the restrictions on Transfer and Transfer of Control set forth in this Article 2 shall apply to Developer, the Property, the Market Rate Project Improvements, Developer's interest in the Affordable Project Improvements and any portion thereof or interest therein or in this Agreement, Developer's interest in the Lot 13 PDA, and, if then in effect, Developer's interest in the Ground Lease Option, the Approved Ground Lease and the Other Agreements ("Transferable Interests"), provided that following the Recording by the City of a Certificate of Compliance for any Parcel, the term "Transferable Interests" shall exclude Developer's interest in such Parcel and the Improvements constructed thereon and the restrictions on Transfer and Transfer of Control set forth in this Article 2 shall be of no force or effect with respect to such Parcel. 2.2.1.1 Except for Permitted Transfers described in Sections 2.2.2.2 through 2.2.2.6, a Lot 13 Transfer pursuant to Section 4.7, one or more Leasehold Mortgages securing Construction Loans for the construction of the Affordable Project Improvements secured by leasehold interests in Lot 13 or any Parcel thereof authorized pursuant to Article 17, until issuance of a Final Certificate of Compliance, Developer shall not Transfer less than the entirety of the Transferable Interests and any Transfer resulting in a division of ownership with respect to the Transferable Interests shall be void and of no force or effect. 2.2.1.2 For avoidance of doubt, nothing in Sections 2.2.2 through 2.2.5 shall govern or apply to the Lot 13 Transfer (which shall be governed exclusively by the provisions of Section 4.7) or to Transfers or Transfer of Control by Affordable Housing Developer of Affordable Housing Developer or Affordable Housing Developer's interests in the Lot 13 PDA, Tustin TIC DDA 03.11.25 (14M)(3) FINAL 13 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 the Ground Lease Option or the Approved Ground Lease, which shall be governed by Sections 1.4.3, 4.7 and 1.2.3 and Article 17, the provisions of the Lot 13 PDA, the Ground Lease Option and the Approved Ground Lease, and with respect to Mortgages, Article 17. Subject to the limitations set forth in Sections 1.4.3, 4.7 and 13.2.3 and Article 17, no Transfer of any portion of Affordable Housing Developer's interest in the Lot 13 Property, the Lot 13 PDA, the Ground Lease Option or the Approved Ground Lease that is permitted pursuant to the Lot 13 PDA, the Ground Lease Option or the Approved Ground Lease shall be prohibited by this Agreement. 2.2.2 Permitted Transfers. The following Transfers are "Permitted Transfers" and shall not be subject to the City's prior written consent or otherwise subject to the requirements of Section 2.2.3: 2.2.2.1 A Transfer by Responsible Developer to a Developer Affiliate of the entirety of Developer's interest in the Transferable Interests; provided that: (i) unless and until Responsible Developer is released from such obligations pursuant to Article 9 or Section 16.6, the City shall be entitled to look to both the Transferee and the Responsible Developer notwithstanding such Transfer, and the Responsible Developer shall remain fully liable under and shall not be released from this Agreement and shall cause its Developer Affiliate to fully comply with this Agreement as though there had not been a Transfer; (ii) there shall be no Transfer of Control and the Controlling Person of the Responsible Developer shall be, directly or indirectly, the Controlling Person of the Developer Affiliate that is the Transferee; (iii) neither Transferor nor the then Responsible Developer shall be in Potential Default or Material Default under this Agreement at the Transfer Date; (iv) the Responsible Developer or the Responsible Developer's Controlling Person shall provide the City with written notice of such transaction not less than thirty (30) Business Days prior to the proposed Transfer; and (v) no later than the Transfer Date, all of the applicable conditions set forth in Sections 2.2.4.4.6 and 8.9 shall have been satisfied. 2.2.2.2 Any Transfer by Developer of portions of the Property to the City and/or grants of easements affecting the Real Property to the City, to any public or quasi - public entity or to any utility, or to any Successor Owner or Affordable Housing Developer for the benefit of any portion of the Property, as necessary or desirable for the development or operation thereof. 2.2.2.3 Any temporary license or other temporary grant of access rights by Developer to any portion of the Property to the City and/or to any other third party or to Tustin TIC DDA 03.11.25 (14M)(3) FINAL 14 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 any Successor Owner or Affordable Housing Developer, as necessary or desirable for the development or operation thereof. 2.2.2.4 Any lease of Residential Unit within the Market Rate Project and/or the Affordable Project. 2.2.2.5 Any property management agreement for the management of the Buildings and Improvements on a Parcel comprising a portion of the Market Rate Project and/or the Affordable Project; provided any such property management agreement is subject to the requirements of the Other Agreements. 2.2.3 Provisions Applicable to Transfers and Transfers of Control Other than Permitted Transfers. Except as set forth in Section 2.2.2, Article 13 or Article 17, prior to Recording by the City of the Final Certificate of Compliance, Developer shall comply with the requirements of this Section 2.2.3 and Sections 2.2.4, 4.6 and 8.9 as a condition to each Transfer or Transfer of Control of the Property and shall obtain the prior written consent of the City thereto, which consent shall be granted or denied in the City's sole discretion. The City's right of consent shall include the right of the City to approve the Transferee and the Controlling Person of Transferee with respect to a Transfer, and the Controlling Person of Developer, in the case of a Transfer of Control of Developer, and the right to approve any proposed replacement Guarantor as further described in Section 8.9.2 and any replacement Equity Investor as further described in Section 8.10. In order to provide the City with information necessary to inform its right to consent as described in this Section 2.2.3, Developer shall provide to the City at least thirty (30) Business Days prior to the date of any proposed Transfer or Transfer of Control: 2.2.3.1 the name(s) of the proposed Transferee and its Key Employees and principals and the new Controlling Person, if applicable; the biographies of the principals and Key Employees of the proposed Transferee and the names and biographies of any proposed equity investor or guarantor; 2.2.3.2 all of the material proposed terms of the Transfer or Transfer of Control and draft documents in substantially the form and substance of the final forms of the documents described in Section 2.2.4 and, if applicable, red -lined to show changes from any prior drafts reviewed by the City; 2.2.3.3 if the Guaranty is not then in effect or will be replaced, current audited financial statements to the extent available without any additional cost to such Transferee or Person and current Certified Financial Statements of the proposed Transferee and new Controlling Person for each Transfer and of the new Controlling Person for each Transfer of Control; 2.2.3.4 a certificate of the proposed Transferee and new Controlling Person for each Transfer and of the new Controlling Person for each Transfer of Control describing other similar residential real estate projects developed and leased by, or sold by the proposed Transferee in California over the preceding five (5) year period, the dates of involvement by the proposed Transferee and new Controlling Person with such projects and the success of the projects, Tustin TIC DDA 03.11.25 (14M)(3) FINAL 15 City of Tustin/Irvine Company Por. 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Areas 213, 2C and 8 such certificate to be made by the manager, president or other Person with appropriate authority from the proposed Transferee and/or Controlling Person, as applicable, to do so; 2.2.3.5 an Updated Market Rate Project Financing Plan and, if prior to Lot 13 Transfers of all of Lot 13, an Updated Affordable Project Financing Plan, in each case meeting the requirements of Section 4.6.1 prepared by Transferee (provided that approval by the City of any Transfer shall not negate the right of the City to review and approve an Updated Market Rate Project Financing Plan and Updated Affordable Project Financing Plan as a condition to Close of Escrow). 2.2.3.6 with respect to each Transfer of Control, provide evidence to the City that no Mortgage other than a Leasehold Mortgage will be required with respect to the Property or the Project and either (i) (A) each previously approved Evidence of Equity, Equity Commitment and Guaranty remains in full force and effect (in which case the City's rights of review shall be as set forth in Section 4.6.1.4), (B) there are no defaults thereunder, C) there have been no modifications thereto other than modifications that have been consented to by the City in its sole discretion, or if modified that the modifications have been reviewed and approved by the City in accordance with Section 4.6.1.4, and (D) that the same will remain in full force and effect following such Transfer of Control, or (ii) if the Evidence of Equity will be replaced, if the Equity Investor is proposed to be replaced, information required for the City to approve the Equity Investor as set forth in Section 8.10 and if the Guarantor is proposed to be replaced, the information required for the City to approve the proposed Guarantor as set forth in Section 8.9.2 and such modifications to the form of the Equity Commitment and/or Evidence of Equity and Guaranty as may be required by the City in its sole discretion; 2.2.3.7 if City has not elected the TUSD Prepayment Alternative and an assignment of the TUSD Assignment is then in effect, an assignment of the same to the Transferee, or if an assignment of such TUSD Assignment is not authorized by Tustin Unified School District ("TUSD") and a new assignment of the TUSD Agreement is required, a new TUSD Assignment executed by TUSD, Transferee and Transferor, which shall be identical (other than as to names of the parties and dates) to the TUSD Assignment unless otherwise agreed by the City and Transferee, each in its sole discretion. 2.2.3.8 such other relevant information as the City may request in its reasonable discretion in connection with its consent rights under this Agreement and, following the Close of Escrow, Section 8.6, including evidence of the financial capacity of Transferee to indemnify the City Indemnified Parties as set forth in this Agreement which may include evidence that the proposed Transferee, proposed new Controlling Person, proposed Equity Investor and proposed Guarantor each has sufficient financial capacity to perform, fund or guaranty, as applicable the obligations of Developer under this Agreement and the Other Agreements, without utilizing a Mortgage (except as permitted by Article 17) and to meet the other requirements of this Agreement and the Other Agreements. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 16 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 2.2.4 Transfer Date Deliverables. No later than the Transfer Date: 2.2.4.1 With respect to each Transfer, Transferor and Transferee shall execute and deliver to each other and the City and shall have acknowledged and Recorded, an assignment and assumption agreement in substantially the form and substance of the instrument for the Transferable Interests attached hereto as Attachment 17A ("Assignment Agreement"). 2.2.4.2 Developer shall deliver to the City a certificate executed by the chief financial officer or other appropriate authorized officer of (i) if a Transfer or Control, in substantially the form and substance of the Developer Date Down and Reaffirmation Certificate attached as Attachment 19B ("Developer Date Down and Reaffirmation Certificate") or (ii) if a Transfer, substantially in the form and substance of the certificate attached as Attachment 17B ("Transferee Certificate"), in either case dated as of the Transfer Date; 2.2.4.3 If the Equity Commitment will remain in effect and Transferee is utilizing an Approved Equity Investor that has previously delivered an Equity Investor Original Certificate, a certificate in substantially the form and substance of the Equity Investor Date Down Certificate attached as Attachment 15B ("Equity Investor Date Down Certificate") otherwise, an Equity Investor Original Certificate by an Approved Equity Investor (provided that the Equity Investor is approved by the City prior to the Transfer pursuant to Section 8.10), in each case certified by the chief financial officer or other appropriate authorized officer of such Approved Equity Investor, and, if revised, Evidence of Equity and/or Equity Commitment, in either case dated as of the Closing Date; 2.2.4.4 For Transfer following the Close of Escrow, if the existing Guaranty remains in effect, Developer shall cause delivery from the Guarantor of executed originals of a Reaffirmation of Guaranty, a Guarantor Date Down Certificate in substantially the form and substance of the Guarantor Date Down Certificate attached as Attachment 14C ("Guarantor Date Down Certificate") and a Reaffirmation Legal Opinion or, if a new Guarantor is proposed, Developer shall cause such new Guarantor (provided that the proposed Guarantor and form of replacement Guaranty is approved by the City prior to the Transfer pursuant to Section 8.9.2) to deliver to the City a Guaranty executed by Guarantor, a declaration certified by the chief financial officer or other appropriate authorized officer of the applicable Guarantor substantially in the form and substance of the certificate attached as Attachment 14B ("Guarantor Original Certificate"); and a legal opinion substantially in the form and substance of the Guaranty Legal Opinion attached hereto as Attachment 14D executed by legal counsel to the Guarantor as the same may be required to be modified to reflect the state of formation of Guarantor ("Guaranty Legal Opinion"); and 2.2.4.5 all of the applicable conditions set forth in Sections 2.2.2 or 2.2.3 as applicable shall have been satisfied. 2.2.5 Effect of Transfer; Release of Transferor. 2.2.5.1 Notwithstanding any Transfer or Transfer of Control, unless specifically released by the City in writing as set forth in Section 2.2.5.2 or otherwise released by Tustin TIC DDA 03.11.25 (14M)(3) FINAL 17 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 the City (in its sole discretion) in writing, Initial Developer and each subsequent Developer shall remain fully liable for the obligations of Developer under this Agreement and the Other Agreements following a Transfer, subject to the effects of Recording by the City of a Certificate of Compliance as provided in Article 9. 2.2.5.2 Upon a Transfer (other than a Permitted Transfer) of all of the Transferable Interests to a Transferee approved by the City pursuant to Section 2.2.3 and with the satisfaction of all of the conditions to such Transfer set forth in Sections 2.2.3 and 2.2.4 and the assumption in writing by Transferee of all obligations under this Agreement and the Other Agreements pursuant to an Assignment Agreement executed and acknowledged by Transferor and Transferee, the City shall execute a consent to assignment and release of Transferor substantially in the form and substance of the consent attached to the Assignment Agreement and, thereupon, Transferor shall be released from the obligations of Developer under this Agreement and the Other Agreements arising after the date of such Transfer; provided, however, that Transferor shall not be released with respect to (w) matters or circumstances (including any payment obligations) which relate to or Accrued during the period that such Transferor was the Developer hereunder (or during such longer period for which such Transferor is liable hereunder), (x) the releases set forth in Section 4.5.3 or in the Other Agreements, and (y) Developer's indemnity obligations under this Agreement or the Other Agreements as and to the extent set forth in this Agreement. 2.2.6 Restrictions on Mortgages, Sale Leasebacks and Mezzanine Financing. Except as set forth in Article 17 with respect to certain Mortgages secured by the leasehold interest of Affordable Housing Developer in the Affordable Project, neither Developer nor Affordable Developer shall encumber the Property with any Mortgage without the prior written consent of the City as set forth in Section 2.2.1, which approval may be granted or withheld in the sole discretion of the City. In addition, Developer shall not enter into nor permit Affordable Housing Developer to enter into or convey or otherwise assign the Property or any portion thereof to a third party for purposes of a sale -leaseback transaction or utilize Mezzanine Financing. The City shall have no right to approve or disapprove a Mortgage for any Parcel and/or, with respect to Lot 13, a Mortgage secured by the leasehold interest of Affordable Housing Developer in the Affordable Project after the Recording by the City of a Certificate of Compliance for such Parcel. 2.2.7 Bankruptcy. The following shall be considered Transfers or Transfers of Control which are prohibited without consent from the City, which may be granted or withheld in the City's sole discretion (herein, a "Developer Insolvency Event"): 2.2.7.1 If Developer is or becomes bankrupt or insolvent or if any involuntary proceeding is brought against Developer (unless, in the case of a petition filed against Developer, the same is dismissed within ninety (90) calendar days), or Developer makes an assignment for the benefit of creditors, or institutes a proceeding under or otherwise seeks the protection of federal or State bankruptcy or insolvency laws, including the filing of a petition for voluntary bankruptcy or instituting a proceeding for reorganization or arrangement; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 18 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 2.2.7.2 If a writ of attachment or execution is levied on this Agreement or on the Development Parcels, or on any portion thereof, where such writ is not discharged within ninety (90) calendar days; or 2.2.7.3 If, in any proceeding or action in which Developer is a party, a receiver is appointed with authority to take possession of the Development Parcels, or any portion thereof, where possession is not restored to Developer within ninety (90) calendar days. 2.2.8 Restrictions on Sale of Units or Condominium Development; Rental of Residential Units. The Real Property is being developed with the purpose of renting Residential Units and not with the intent to sell individual residential units or with the intent to Transfer the Common Area or the Common Area Improvements to a property management association for the management of a common area development on the Real Property and the general prohibition against Transfer outlined in this Agreement shall be applicable to the sale of individual Units and the Transfer to any entity of the Common Area and Common Area Improvements separately. 2.2.9 City Estoppel. From time to time (but in no event more often than semi- annually or in connection with a Transfer or Transfer of Control proposed to or consented to by the City in accordance with this Agreement or a Lot 13 Transfer) and within twenty (20) calendar days of the City's receipt of a written request therefor, the City shall execute and deliver to Developer and any proposed or actual Transferee (and in connection with the Lot 13 Transfer or at the inception of a Permitted Leasehold Mortgage, to the Affordable Housing Developer, Bond Issuer, TCAC, CDLAC, Qualified Tax Credit Investor and any other Permitted Leasehold Mortgagee), a City Estoppel, which for a Transfer or Transfer of Control other than a Lot 13 Transfer shall be substantially in the form and substance of the City Estoppel attached hereto as Attachment 5A and for a Lot 13 Transfer shall be substantially in the form and substance of the City Estoppel attached hereto as Attachment 5B (each a "City Estoppel") but with such factual modifications thereto as necessary to ensure the accurateness of the statements made therein at such time. 2.2.10 City Costs. Developer shall promptly pay to the City all of the City's actual out of pocket third party expenses, including legal fees, and staff costs incurred with respect to the review, consideration, analysis and response to any of the matters required to be reviewed or consented to by the City pursuant to Sections 2.2, 4.6, 4.7 and Article 17 including with respect to (i) any request for consent or approval of a Guarantor, Equity Investor, Affordable Housing Developer, Transferee, Transfer or Transfer of Control, and (ii) review, consideration, preparation and delivery of each City Estoppel. 2.3 Effect of and Remedies for Improper Transfers or Transfers of Control. Without limiting the generality of the foregoing, a failure (i) by Developer to comply with the requirements of this Article 2 with respect to any Transfer or Transfer of Control or (ii) by any Transferee to execute the Assignment Agreement required by Section 2.2.2.1 or 2.2.41 as the case may be, or to execute and deliver, or cause a Transferee, its Approved Equity Investor, if applicable, and its Guarantor to execute and deliver each of the certificates and other documents required in connection with such Transfer, shall in each case be a Material Default under this Tustin TIC DDA 03.11.25 (14M)(3) FINAL 19 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Agreement, subject to the provisions of Section 14.2.3, but with no extension on account of Force Majeure Delay and, in such event, the City shall have all remedies available to it at law and in equity, including those specified in this Agreement and specifically including the right to terminate this Agreement or following Close of Escrow, to exercise the Right of Repurchase and/or the Right of Reversion, as applicable, in accordance with Article 16. 2.4 Changes. Developer shall promptly notify the City in the event that any of the following Persons cease to be involved with the development of the Market Rate Project or the Affordable Project, as applicable: (i) any of the Key Employees, (ii) AO -Architects Orange, the architect for the Market Rate Project and the Affordable Project, (iii) EPTDESIGN, the landscape architect for the Market Rate Project and Affordable Project, or (iv) Fuscoe Engineering, the engineer for the Market Rate Project and Affordable Project. Following any Transfer or Transfer of Control, Transferee shall provide the City with a list of its Key Employees and the City shall have the right to notify Developer if it considers any of such individuals unsatisfactory, in which event such individual(s) shall be removed as Key Employees. 2.5 Affordable Housing Credits. Any affordable housing credits issued or made available, attributable to or arising from the DDA, the DA or the Entitlements shall remain with the Project and the Real Property and shall not be Transferred to any other property or development. This Section is not meant to address any matters related to the allocation and receipt of federal and/or state low income housing tax credits and/or solar energy credits. 3. Representations and Warranties. 3.1 Developer's Representations and Warranties. As an inducement to the City to enter into to enter into and perform its obligations under this Agreement, Developer represents and warrants to the City as follows as of the Effective Date: 3.1.1 Developer has the necessary expertise, experience, financial experience, financial capacity, qualifications and legal status necessary to perform as Developer pursuant to this Agreement and to construct and Complete the Market Rate Project as contemplated by this Agreement, and, in the event of a Transfer of the obligations with respect to development of the Affordable Project, to oversee the development of such units and to assure that the Affordable Housing Developer has the necessary expertise, experience and financial capacity to undertake development of the Affordable Project. Without limiting the foregoing, Developer (i) is and has determined that Affordable Housing Developer is experienced in the development, management, and sale of multifamily residential rental projects of the size and type described in this Agreement and (ii) understand the process and requirements associated with projects such as the Market Rate Project and the Affordable Project. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 20 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 3.1.2 Except as set forth in this Agreement with respect to financing for construction of the Affordable Project, Developer's purchase and development of the Property is subject to no financing contingency whatsoever with respect to either private or public financing and that its acquisition of third -party financing for the Market Rate Project and/or the Affordable Project is not a condition precedent to Developer's obligation to purchase the Property or of its ability to fund construction of the Market Rate Project and/or the Affordable Project. 3.1.3 The acquisition of the Property and other undertakings of Developer pursuant to this Agreement are for the purpose of timely development of the Market Rate Project and the Affordable Project upon the Development Parcels in accordance with the Schedule of Performance attached to this Agreement and not for speculation or land holding. 3.1.4 Developer is a limited liability company duly organized, and validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business and in good standing in California and in each other jurisdiction where the operation of its business or its ownership of property or the performance of Developer's obligations under this Agreement make such qualification necessary. 3.1.5 Subject to all of the conditions set forth in this Agreement for the benefit of Developer, Developer has (or will have prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement or any Other Agreements) all requisite power and authority required to enter into this Agreement and the instruments referenced in this Agreement, to consummate the transaction contemplated hereby and to take any steps contemplated thereby or hereby, and to perform its obligations under this Agreement or the other instruments referenced in this Agreement. to which Developer is or shall be a parry and the consummation of the transactions contemplated in this Agreement. 3.1.6 Developer has obtained (or will have obtained prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement or any Other Agreements) all required consents in connection with entering into this Agreement and the instruments and documents referenced in this Agreement to which Developer is or shall be a party and the consummation of the transactions contemplated hereby. 3.1.7 The individuals executing this Agreement and the individuals that will execute the instruments referenced in this Agreement on behalf of Developer have, or will have upon execution thereof, the legal power, right and actual authority to bind Developer to the terms and conditions hereof and thereof. 3.1.8 This Agreement has been duly authorized, executed and delivered by Developer and all documents required in this Agreement to be executed by Developer pursuant to this Agreement shall be, at such time as they are required to be executed by Developer, duly authorized, executed and delivered by Developer and are or shall be, at such time as the same are required to be executed pursuant to this Agreement, valid, legally binding obligations of and Tustin TIC DDA 03.11.25 (14M)(3) FINAL 21 City of Tustin/Irvine Company Por. 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Areas 213, 2C and 8 enforceable against Developer in accordance with their terms, except as enforceability may be limited by bankruptcy laws or other similar laws affecting creditors' rights. 3.1.9 Neither the execution nor delivery of this Agreement or the documents referenced in this Agreement, nor the incurring of the obligations set forth in this Agreement and the certificates, declarations and other documents referenced in this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the terms of this Agreement and the documents referenced in this Agreement, will violate any provision of law or any order of any court or Governmental Authority to which Developer is subject or conflict with or result in the breach of any terms, conditions, or provisions of, or constitute a default under any bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreements or instruments to which Developer, one of its owners, members or partners are a party and which affect the Property or the transactions contemplated by this Agreement. 3.1.10 No attachments, execution proceedings, assignments of benefit to creditors, bankruptcy, reorganization or other insolvency proceedings are pending or, to the best of Developer's Knowledge, threatened against Developer, or any of its owners, members or partners. 3.1.11 Except for those representations and warranties of the City expressly set forth in in Sections 3.3 and 18.12.2. Developer is relying solely upon its own inspections and investigations in proceeding with this Agreement and the transactions contemplated in this Agreement, and is not relying on the accuracy or reliability of any information provided to it by the City, on any oral or written representation or on any facts or conclusions of law made by the City, or any of its elected and appointed officials, officials, employees, agents, attorneys or representatives made in connection with this Agreement. In making such investigation and assessment, Developer has been provided access to any persons, records or other sources of information which it has deemed appropriate to review and it has thereafter completed such investigation and assessment. Without limiting the generality of the foregoing, Developer acknowledges that the City has not made and will not make any representations or warranties concerning the condition of the Development Parcels, the compliance or non-compliance of the Development Parcels or any portion thereof with Environmental Laws or the existence or non- existence of Hazardous Materials in relation to the Development Parcels or any portion thereof or otherwise, except for those representations and warranties of the City set forth in Sections 3.3 and 18.12.2. 3.1.12 Except as described on Attachment 4, there are no adverse conditions or circumstances existing and no litigation or governmental action either pending or, to the knowledge of any of the Developer Representatives, threatened, to which Developer or any Controlling Person of Developer is or may be a party or to which the Development Parcels are or may become subject, which would reasonably be expected to prevent or materially impair Developer's ability to carry out its obligations under this Agreement or to develop the Development Parcels and the Market Rate Project and the Affordable Project or carry out its other Tustin TIC DDA 03.11.25 (14M)(3) FINAL 22 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 obligations under this Agreement, and upon Close of Escrow, the Other Agreements as contemplated by the terms of this Agreement. 3.1.13 Except as set forth in this Agreement, the Development Agreement and the ENA, Developer has not paid or given, and will not pay or give, any third Person any money or other consideration for obtaining this Agreement, other than the normal cost of conducting business and cost of professional services such as architects, engineers and attorneys. 3.1.14 All reports, documents, instruments, information and forms of evidence delivered by Developer to the City concerning or related to this Agreement and the transactions contemplated hereby are, to Developer's Knowledge, accurate and correct and sufficiently complete at the time of submission to give the City true and accurate knowledge of the subject matter, and do not contain any material misrepresentation or omission. 3.1.15 As of the Close of Escrow, Developer will have the equity capital and financial capacity required for Completion of the Market Rate Project without requirement of third -parry financing. 3.1.16 Developer does not have any contingent obligations or any other contracts the performance or nonperformance of which could adversely affect the ability of Developer to fund the Market Rate Project or the Affordable Project or to carry out its obligations under this Agreement. Developer has not and shall not undertake such additional projects as could reasonably be expected to jeopardize the sufficiency of such equity, capital and firm and binding commitments for the purposes expressed in the preceding sentence. 3.1.17 Developer is capable of acquiring the Property and developing the Market Rate Project and the Affordable Project without a capital partner or financing from a bank group or other institutional lender, and without utilizing the Development Parcels and/or the Market Rate Project and/or the Affordable Project or the Real Property as collateral, other than as set forth in this Agreement with respect to financing for the Affordable Project. Subject to Section 7.2.2.2(xii), Developer's representations and warranties set forth in this Section 3.1 shall be deemed to be restated at the Close of Escrow and shall survive the Close of Escrow until the earlier to occur of the following: (i) termination of this Agreement or (ii) Recording by the City of a Final Certificate of Compliance. As used in Sections 3.1 and 3.2, "Developer's Knowledge" and similar phrases means the actual present knowledge of the Developer Knowledge Parties as of the Effective Date, in each case without any duty of inquiry; provided, however, that in the event any of the Developer Knowledge Parties are unavailable at the time these representations and warranties set forth in this Section 3.1 are restated at the Close of Escrow, Developer may specifically identify different Developer's Knowledge Parties, subject to the City's reasonable approval. Notwithstanding anything to the contrary contained in this Agreement, (A) none of the Developer Knowledge Parties shall be personally liable for any inaccuracy or breach by Developer of the representations and warranties contained in this Section 3_1 or elsewhere in this Agreement and/or any of the Other Agreements, and (B) the City shall not be entitled to make a claim for a breach of Developer's representations and warranties if Developer had provided written notice to the City indicating that the applicable representation and warranty Tustin TIC DDA 03.11.25 (14M)(3) FINAL 23 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 was incorrect prior to (1) the execution of this Agreement and the City proceeded with the execution of this Agreement, or (2) the Close of Escrow and the City proceeded to Closing in spite of such inaccuracy. 3.2 Developer Covenants Re2ardin Representations and Warranties. Developer shall promptly advise the City in writing if any of the Developer Knowledge Parties becomes aware (without any duty of inquiry) that any representation or warranty made by Developer in Section 3.1 or in any Assignment Agreement is or becomes untrue in any material respect prior to the Close of Escrow. 3.3 City Representations and Warranties. As an inducement to Developer to enter into and perform its obligations under this Agreement, the City represents and warrants to Developer as follows: 3.3.1 The City is a municipal corporation incorporated within and existing pursuant to the laws of the State. 3.3.2 Subject to all of the conditions set forth in this Agreement for the benefit of the City, the City has (or will have prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement or any Other Agreements) all requisite power and authority required to enter into this Agreement and the instruments referenced in this Agreement, to consummate the transaction contemplated hereby and to take any steps contemplated thereby or hereby, and to perform its obligations under this Agreement and the instruments referenced in this Agreement. 3.3.3 The City has obtained (or will have obtained prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement or any Other Agreements) all required consents in connection with entering into this Agreement and the instruments and documents referenced in this Agreement to which the City is or shall be a party and the consummation of the transactions contemplated in this Agreement. 3.3.4 The individuals executing this Agreement and the individuals that will execute the instruments referenced in this Agreement on behalf of the City have, or will have upon execution thereof, the legal power, right and actual authority to bind the City to the terms and conditions hereof and thereof. 3.3.5 This Agreement has been duly authorized, executed and delivered by the City and all documents required in this Agreement to be executed by the City pursuant to this Agreement shall be, at such time as they are required to be executed by the City, duly authorized, executed and delivered by the City and are or shall be, at such time as the same are required to be executed under this Agreement, valid, legally binding obligations of and enforceable against the City in accordance with their terms, except as enforceability may be limited by bankruptcy laws or other similar laws affecting creditors' rights. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 24 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 3.3.6 Neither the execution or delivery of this Agreement or the documents referenced in this Agreement, nor the incurring of the obligations set forth in this Agreement, and the certificates, declarations and other documents referenced in this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the terms of this Agreement and the documents referenced in this Agreement, will violate any provision of law, any order of any court or Governmental Authority to which the City is subject or conflict with or result in the breach of any terms, conditions, or provisions of, or constitute a default under any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreements or instruments to which the City is a parry and which affect the Property, the ability of Developer to develop the Property, the Market Rate Project or the Affordable Project or to carry out the transactions contemplated by this Agreement. Notwithstanding the foregoing, development of the Property is subject to and may be limited based upon the encumbrances listed on Attachment 4. 3.3.7 Except as described in Attachment 4, there is no litigation or governmental action either pending or, to the knowledge of the City Representatives, threatened, to which the City is or may be made a party, or to which the Development Parcels are or may become subject, which has not been disclosed in the documents submitted to Developer and which would reasonably be expected to prevent or materially impair Developer's ability to develop the Property, the Market Rate Project and the Affordable Project, or to carry out its obligations under this Agreement or, and upon the Close of Escrow, the Other Agreements, as contemplated by the terms of this Agreement. Subject to Section 7.2.1.1(xi), the City's representations and warranties set forth in this Section 3.3 shall be deemed to be restated at the Close of Escrow and shall survive the Close of Escrow until the earlier to occur of the following: (i) termination of this Agreement or (ii) Recording by the City of the Final Certificate of Compliance. As used in Sections 3.3 and 3.4, "City's Knowledge" and similar phrases means the actual present knowledge of Aldo E. Schindler (or, if he is not then City Manager, the then -current City Manager), David Kendig (or, if he is not then City Attorney, the then -current City Attorney) and the then -current Deputy City Manager — Real Property, and if then working on the Project for the City, Ryan Swiontek, Ken Piguee, Jerry Craig and Minoo Ashabi (the "City Representatives") without any duty of inquiry. Notwithstanding anything to the contrary contained in this Agreement, (A) none of the City Representatives shall be personally liable for any inaccuracy or breach by the City of the representations and warranties contained in Section 3.3 or elsewhere in this Agreement or in any of the Other Agreements, and (B) neither Developer nor any other Person shall be entitled to make a claim for a breach of the City's representations and warranties if the City had disclosed in writing facts to Developer indicating that the applicable representation and warranty was incorrect prior to (1) the execution of this Agreement and Developer proceeded with the execution of this Agreement, or (2) the Close of Escrow and Developer proceeded with the Close of Escrow, in either case in spite of such inaccuracy. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 25 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 3.4 City Covenants Regarding Representations and Warranties. City shall promptly advise Developer in writing if any of the City Representatives becomes aware (without any duty of inquiry) that any representation or warranty made by the City in Section 3_3 is or becomes untrue in any material respect prior to the Close of Escrow. 4. Conveyance of Property from City to Developer. 4.1 Conveyance of Property. 4.1.1 Definition of Property. Subject to the terms and conditions set forth in this Agreement, including the satisfaction of the Closing Conditions set forth in Article 7 in this Agreement, the City agrees to sell to Developer and Developer agrees to purchase the Real Property from the City, together with (i) all existing improvements, if any, located on the Real Property as of the Effective Date; (ii) all appurtenances pertaining to the Real Property or such improvements; (iii) all permits, licenses, approvals and authorizations issued prior to the Close of Escrow by any Governmental Authority for development of the Project; and (iv) the right to construct a maximum of 1,336 Residential Units (consisting of 708 base units and 628 density bonus units) on the Real Property as further described in Section 4.1.2, and (v) all of City's right, title and interest in, to and arising out of the Intangible Property (excluding the matters described in Section 4.1.2, collectively, "Property"), subject to all Permitted Exceptions; provided, however that City's assignment of its rights to enforce the Navy Responsibilities against the Navy shall be made to Developer on a non-exclusive basis and the City and Developer may each enforce the Navy Responsibilities as their interests may appear. Notwithstanding the foregoing, nothing set forth in this Agreement shall preclude the City or any insurer, on a non-exclusive basis, from enforcing the Navy Responsibilities against the Navy with respect to Tustin Legacy other than the Property or, with respect to the Property for matters Accruing prior to Close of Escrow. At the Close of Escrow, the City shall convey to Developer by Quitclaim Deed fee title to the Property. 4.1.2 Reservation of Development Rights by City. The City hereby reserves from the definition of Property and shall reserve from the conveyance of the Property in the Quitclaim Deed all those excess development rights remaining within Specific Plan Neighborhood D, Planning Areas 8, 13 and 14 after deducting from the number of Residential Units authorized by the Specific Plan the lesser of (i) 1,336 Residential Units or (ii) the number of Residential Units authorized by the Approved Plans and actually constructed by Developer on the Real Property prior to Recording by the City of the Final Certificate of Compliance provided that the total number of Lower Income Units constructed on the Lot 13 portion of the Real Property shall not be less than twenty five percent (25%) of the total number of Residential Units constructed on the Real Property so long as the Affordable Housing Declaration remains in effect. For avoidance of doubt, except to the extent any of such rights were conveyed by the City to third parties prior to the Quitclaim Deed Effective Date, the City shall retain all Residential Units and development rights associated with Specific Plan Neighborhood D, Planning Areas 8, 13 and 14 in excess of the number of Residential Units shown on the Approved Plans for the Project and constructed prior to Recording by the City of the Final Certificate of Compliance, and the units and development rights retained by the City shall be freely transferable by the City throughout Tustin Legacy. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 26 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 4.2 Purchase Price and Proiect Fair Share Contribution. 4.2.1 Purchase Price and Proiect Fair Share Contribution. As consideration for the sale of the Property by the City to Developer, Developer shall pay to the City a total purchase price in the sum of Forty -Two Million One Hundred Thousand and 00/100 Dollars ($42,100,000.00) ("Purchase Price"). The City and Developer acknowledge that the Purchase Price is equal to or greater than the fair market value of the Development Parcels taking into account the various factors affecting the same, including the Project Fair Share Contribution, and those items described in Sections 6.2, 8.7.3 and 8.7.5. 4.2.2 Proiect Fair Share Contribution. In addition to and separate from the Purchase Price, at the Close of Escrow Developer shall pay to the City the Project's fair share of the costs of the Tustin Legacy Backbone Infrastructure Program in effect at the Closing Date ("Project Fair Share Contribution"). The Project Fair Share Contribution to be paid by Developer shall be in the total amount of Nine Million Five Hundred Eighty Four Thousand Seven Hundred Fourteen Dollars and Fifty -Three Cents ($9,584,714.53) which is equal to a rate of Four Hundred Ninety -Three Thousand Four Hundred Forty -Seven Dollars ($493,447.00) per acre of the Real Property. 4.3 Payment of Purchase Price. 4.3.1 Purchase Price Deposit. As a condition to execution of this Agreement by the City, (i) Developer shall deliver an earnest money deposit, of Five Million Dollars ($5,000,000.00) "Original Purchase Price Deposit" and as the same may be increased by addition of the Additional Purchase Price Deposit, the "Purchase Price Deposit") to Escrow Holder not later than five (5) Business Days after approval by the City Council of this Agreement and (ii) Developer and the City shall have agreed upon and memorialized in a written agreement executed by each of them, the Approved Ground Lease Form, and the form of Lot 13 PDA and Ground Lease Option. The Original Purchase Price Deposit shall be held by Escrow Holder in Escrow. Developer may elect to extend the Closing Date for the period described in Section 7.1.2 by delivering to Escrow, for the benefit of the City, concurrently with its extension notice, an additional earnest money deposit of One Million Five Hundred Thousand Dollars ($1,500,000.00) ("Additional Purchase Price Deposit"). The extension shall not be deemed to have been granted until the Additional Purchase Price Deposit is received by Escrow Holder. The Purchase Price Deposit shall constitute security to the City for the Close of Escrow and shall be credited against the Purchase Price at the Close of Escrow. If the Close of Escrow does not occur, the Purchase Price Deposit shall be disbursed in accordance with Article 15. 4.3.2 Application of Purchase Price Deposit. The Purchase Price Deposit shall be nonrefundable except as otherwise expressly provided in Article 15 and shall be applied to the applicable Purchase Price as set forth in Section 4.3.3. The Original Purchase Price Deposit shall be returned to Developer in the event of a Deposit Return Event or shall be liquidated damages to the City in the event of certain Defaults by Developer as further set forth in Article 15. The Additional Purchase Price Deposit, when deposited in Escrow, shall be retained by the City in all events other than as provided in Section 15.3.1(iv)(B) and shall be applicable to the Purchase Tustin TIC DDA 03.11.25 (14M)(3) FINAL 27 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Price. 4.3.3 Payment of the Balance of Purchase Price and Other Amounts Due at the Close of Escrow. No later than one (1) Business Day prior to the Close of Escrow, Developer shall deposit the following amounts with Escrow Holder the "Closing Payment", which shall be equal to (i) the Purchase Price less the Purchase Price Deposit (plus accrued interest, if any on such deposit), plus (ii) the Project Fair Share Contribution, plus (iii) if the City elects, in its sole discretion the TUSD Prepayment Alternative pursuant to Section 8.7.5.3, the Developer TUSD Lien Release Payment, plus (iv) such additional amount as is necessary to cover all outstanding DDA Transaction Expenses incurred by the City through the Close of Escrow and all closing costs to be paid by Developer pursuant to Sections 7.4.1.2 and 7.4.1.3 and Section 7.4.4, as adjusted for any net credits or debits to the City for closing costs and/or prorations in accordance with Sections 7.4.1.1, 7.4.1.3 and 7.4.4. 4.3.4 Payments in Immediately Available Funds. Funds delivered to the City or Escrow Holder under this Agreement shall be in the form of cash, wire transfer (to such account of the City or Escrow Holder as Escrow Holder notifies Developer in writing), or by cashier's check drawn on good and sufficient funds on a federally chartered bank and made payable to the order of City or Escrow Holder, as the case may be. 4.4 Escrow and Joint Escrow Instructions. Developer shall have delivered to the City, prior to the City Council hearing at which this Agreement is considered for adoption, three (3) fully executed counterparts of this Agreement. Within five (5) Business Days following City Council approval of this Agreement, Developer shall: (i) deliver the Original Purchase Price Deposit to Escrow Holder, and (ii) deliver to the City (A) the declarations and information required by Section 4.6.2.1 and such other information as City may reasonably request as further described in Section 4.6, (B) the City Costs Deposit and (C) the insurance binder(s) required by Section 11.2.3 with respect to coverage required by Sections 11.1.1 and 11.1.2. Upon delivery by Developer of the items described in clauses (i and (ii)(A) through (C) of this Section 4.4, the City shall deliver to Escrow Holder three (3) originals of this Agreement which have been executed in counterparts by the City and Developer and the "Opening of Escrow" shall be the date that Escrow Holder receives such executed originals from the City. Escrow Holder shall promptly sign the joinders and transmit one (1) original of this Agreement to City and one (1) original to Developer. Upon the written acceptance of the executed Agreement by Escrow Holder, this Agreement shall constitute the joint escrow instructions of Developer and the City to Escrow Holder to open an escrow ("Escrow") and Escrow Holder is thereafter authorized to act in accordance with the terms of this Agreement. Developer and the City shall execute Escrow Holder's general escrow instructions upon request, with such modifications thereto as Developer and the City may reasonably require; provided, however, if there is any conflict or inconsistency between such general escrow instructions and this Agreement, this Agreement shall control. Escrow Holder shall not prepare any further escrow instruction restating or amending this Agreement unless specifically so instructed by the City and Developer in writing. Any supplemental escrow instructions must be in writing and signed by the City and Developer and accepted by the Escrow Holder to be effective. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 28 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 4.5 Property Conveyed "As -Is". 4.5.1 Investigation. 4.5.1.1 Prior Due Diligence Review. Developer acknowledges that it had the right during the term of the ENA to conduct its own investigation of the Property and that Developer has satisfied itself that all matters related to the Development Parcels, the Market Rate Project and the Affordable Project are acceptable to Developer, including the state of title (subject only to the Permitted Exceptions), the physical condition thereof, the physical condition of structures, if any, located upon the Development Parcels and, as applicable, the accessibility and location of utilities, and all mechanical, plumbing, sewage, and electrical systems located therein, suitability of soils, environmental and other investigations regarding the Development Parcels and Developer that it is willing to consummate the transactions described by this Agreement. 4.5.1.2 Opportunity to Evaluate. Developer acknowledges and agrees that, as of the Close of Escrow: (i) Its determination to enter into this Agreement constitutes Developer's agreement that Developer, in consummating the transactions described in this Agreement: (A) has been given the opportunity to inspect the Development Parcels and to review the information and documentation provided by the City to Developer and affecting the Development Parcels, including the environmental condition of the Development Parcels, or otherwise obtained by Developer in connection with its due diligence of the Development Parcels, and is relying solely on its own investigation of the Development Parcels, including such investigation prior to execution of this Agreement, and review of such information and documentation in determining the physical, environmental, economic and legal condition of the Development Parcels, and except as provided in Sections 3.3 and 18.12.2, not on any information, representation or warranty provided by the City or any agents or representatives of the City; (B) has performed its own assessment of the Development Parcels, including the physical and environmental condition of the Development Parcels, the presence of Hazardous Materials on the Development Parcels, the suitability of the soil for improvements to be constructed, the implications of land use restrictions on the development plan for the Market Rate Project, the Affordable Project and the Development Parcels and the consequences of any subsequently discovered contamination on or adjacent to the Development Parcels, and (C) has been provided with access to all information in the possession of the City which it has requested. (ii) Information provided to Developer by or on behalf of the City with respect to the Development Parcels was obtained from a variety of sources and that the City has not made any independent investigation or verification of such information and makes no representations as to the accuracy or completeness of such information; and Developer is satisfied with the nature and extent of its permissible investigation of the physical and environmental condition Tustin TIC DDA 03.11.25 (14M)(3) FINAL 29 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 and other matters relating to the Development Parcels and is willing to consummate the transactions described by this Agreement. (iii) Without limiting the generality of the foregoing, Developer acknowledges and agrees that: (A) in addition to use, Investigation and Remediation of the Development Parcels the Navy, there has been grading, other uses, Investigation and Remediation of the Development Parcels subsequent to the date of the Federal Deed, and that the AS -IS conveyance of the Property and the waivers, releases, and indemnities provided by Developer in this Agreement with respect to the Development Parcels apply to the current condition of the Property, the Development Parcels taking into account the grading, other uses, Investigation and Remediation at Tustin Legacy, including at the Development Parcels, whether occurring before or following conveyance to the City pursuant to the Federal Deed; (B) Developer has been provided with access to all environmental reports and statements listed on Attachment 10 and all reports either attached to or referenced in the Memorandum of Agreement and Federal Deed; (C) it shall perform its own assessment of the environmental condition of the Development Parcels, the presence of Hazardous Materials on the Development Parcels, the suitability of the soil for improvements to be constructed, the implications of the land use restrictions on the development plan for the Market Rate Project, the Affordable Project and the Development Parcels and the consequences of any subsequently discovered contamination on the Development Parcels; and (D) it shall review the City and Navy produced or identified documentation, including that listed on Attachment 10, reflecting the Navy's and the City's knowledge of the environmental condition of the Development Parcels. 4.5.2 AS -IS; WHERE -IS. 4.5.2.1 No Representations or Warranties. Developer recognizes that the City would not sell the Property except on an "AS, IS, WHERE IS, WITH ALL FAULTS" basis, and Developer acknowledges that the City has made no representations or warranties of any kind whatsoever (excepting only those representations and warranties of the City expressly set forth in Sections 3.3 and 18.12.2), either express or implied in connection with any matters with respect to the Development Parcels or any portion thereof. 4.5.2.2 Acknowledgement. Developer's determination to enter into this Agreement constitutes Developer's agreement that Developer, in consummating the transactions described in this Agreement is buying the Property in an "AS IS, WHERE IS, WITH ALL FAULTS" condition, in its present state and condition and with all faults, if any. Without limiting the generality of the foregoing, Developer further acknowledges and agrees that, except as otherwise specifically provided in Sections 3.3 and 18.12.2, the City makes no representations, Tustin TIC DDA 03.11.25 (14M)(3) FINAL 30 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 warranties, assurances or guaranties of any kind or character in connection with the transaction contemplated by this Agreement, whether express or implied, oral or written, past, present or future, whether by the City or any of its agents, elected or appointed officials, representatives or employees, of concerning or with respect to: (i) the value of the Property or the income to be derived from the Property; (ii) the existence or non-existence of any liens, easements, covenants, conditions, restrictions, claims or encumbrances affecting the Development Parcels (including any of the foregoing arising from or related to the Entitlements or any of the Other Agreements); (iii) the suitability of the Development Parcels for any and all future development of the Market Rate Project Improvements and the Affordable Project Improvements and the other uses and activities which Developer may conduct upon the Real Property, including the development of the Market Rate Project, the Affordable Project and the Property as described in this Agreement and the Other Agreements; (iv) the ability of the City or any third party to complete, or likelihood of the completion of, any of the improvements and infrastructure described by the General Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program or any other plan or policy of the City or any other Governmental Authority; (v) the compliance with or enforcement by the City or any third party of the General Plan, the Specific Plan, the Special Restrictions applicable to the Development Parcels or the special restrictions or other covenants and agreements applicable to other property at Tustin Legacy, any covenants, conditions and restrictions, the Tustin Legacy Backbone Infrastructure Program or any other agreement or governmental restriction or plan affecting Tustin Legacy; (vi) the habitability, merchantability or fitness for a particular purpose of the Development Parcels; (vii) the manner, quality, state of repair or lack of repair of the Development Parcels; (viii) the nature, quality or condition of the Development Parcels including water, soil and geology; (ix) the compliance of or by the Development Parcels and/or its operation in accordance with any of the Entitlements or any Governmental Requirements, including the National Environmental Policy Act, CEQA and the Americans with Disabilities Act of 1990; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 31 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (x) the manner or quality of the construction or materials, if any, incorporated into the Development Parcels; (xi) the presence or absence of Hazardous Materials, including asbestos or lead paint at, on, under, or adjacent to the Development Parcels or in other locations at Tustin Legacy; (xii) the content, completeness or accuracy of the information, documentation, studies, reports, surveys and other materials delivered to Developer in connection with the review of the Development Parcels and the transactions contemplated in this Agreement and the Other Agreements; (xiii) the conformity of the existing improvements on the Development Parcels and/or at Tustin Legacy, if any, to any plans or specifications therefor; (xiv) compliance of the Development Parcels with past, current or future Governmental Requirements relating to zoning, subdivision, planning, building, fire, safety, health or Environmental Matters and/or covenants, conditions, restrictions or deed restrictions; (xv) the deficiency of any undershoring or of any drainage to on or from the Development Parcels or any other portion of Tustin Legacy; (xvi) the condition of any adjoining land owned by the City, including any property and improvements covered by the Landscape Installation and Maintenance Agreement; (xvii) the fact that all or a portion of the Development Parcels may be located on or near an earthquake fault line or falls within an earthquake fault zone established under the Alquist-Priolo Earthquake Zone Act, California Public Resources Code Sections 2621-2630 or within a seismic hazard zone established under the Seismic Hazards Mapping Act, California Public Resources Code Sections 2690-2699.6 and Sections 3720-3725; (xviii) the existence or lack of vested land use, zoning or building entitlements, permits or approvals affecting the Development Parcels; (xix) the construction or lack of construction of Tustin Legacy or if constructed, the construction of Tustin Legacy in accordance with design guidelines, plans and specifications previously or to be prepared therefor; (xx) the conditions, covenants and restrictions imposed or to be imposed upon the Development Parcels or any portion thereof under this Agreement, the Other Agreements or the Entitlements; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 32 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (xxi) the contents of the Memorandum of Agreement, the Federal Deed, the Base Closure Law and the FOST; and (xxii) any other matters. 4.5.2.3 Environmental Condition of the Development Parcels; Restrictions. Without limiting the generality of the foregoing, the City makes no representation or warranty as to the environmental condition of the Development Parcels or any portion thereof, the Navy's obligations with respect to the environmental condition of the Development Parcels or the adequacy or accuracy of any environmental report that has been rendered. Developer acknowledges and agrees that (i) there may be some residual contamination on the Development Parcels as a result of Navy historic activities; (ii) the Navy has agreed to accept certain limited responsibility for any contamination it caused, including any contamination discovered after transfer from the Navy, in accordance with existing Governmental Requirements including the National Defense Authorization Act For Fiscal Year 1993 as amended (Public Law No. 102-434) Section 330 and Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9620(h) ("Navy Responsibilities"); and (iii) the deed restrictions contained in the Federal Deed are binding upon the City and its successor and assigns (and therefore, shall be binding upon Developer with respect to the Property upon its acquisition of the Property). 4.5.2.4 Federal Deed and Memorandum of Agreement. Developer acknowledges and agrees that the purchase of the Property is subject to the terms and conditions expressly set forth in the Memorandum of Agreement, the Federal Deed and the Permitted Exceptions. From and after the Close of Escrow, Developer agrees to assume and faithfully perform any covenants running with the land acquired and all obligations set forth in the Federal Deed as obligations to be performed by "Grantee or its successors or assigns" with respect to the Property acquired by Developer. 4.5.2.5 No Unauthorized Representations. No Person acting on behalf of the City is authorized to make, and by execution hereof, Developer acknowledges that no Person has made, any representation, agreement, statement, warranty, guarantee or promise regarding the Development Parcels, the Market Rate Project, the Affordable Project or the transactions contemplated in this Agreement or the past, present or future zoning, land use entitlements or approvals, including the Entitlements or the Development Permits, construction, physical condition, presence or extent of Hazardous Materials or other status of the Development Parcels except as may be expressly set forth in this Agreement or in any of the Other Agreements. No representation, warranty, agreement, statement, guarantee or promise, if any, made by any Person acting on behalf of the City that is not contained in this Agreement or in any of the Other Agreements will be valid or binding on the City. Nothing in this Section 4.5.2 is intended to limit or affect in any manner (i) the validity or provisions of the Entitlements and Development Permits obtained by Developer with respect to the Development Parcels or (ii) any provisions of this Agreement or the Other Agreements when this Agreement and the Other Agreements are approved by the City Council and executed by the City. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 33 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 The provisions of this Section 4.5.2 shall be included in the Special Restrictions, shall run with the land, shall remain in effect in perpetuity and shall survive termination of this Agreement, the Close of Escrow, and the execution and Recording by the City of each Certificate of Compliance, shall not merge with any deed and shall be binding upon Developer, its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner including all End Users, for the benefit of the City and its Governmental Successors, and from and after the Close of Escrow, shall be binding upon and burden the Real Property. 4.5.3 Release. Developer, on behalf of itself, and its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner and including each End User (each, including Developer, a "Developer Releasing Party"), hereby waives, as of the Effective Date, and agrees to waive, as of the Close of Escrow, the right of each Developer Releasing Party to recover from, and fully and irrevocably releases, the City Released Parties from any and all Claims that any Developer Releasing Party may now have or hereafter have, suffer, acquire or incur arising from or related to: (i) any Due Diligence Information, (ii) any condition of the Development Parcels or any current or future improvement thereon, known or unknown by any Developer Releasing Party or any City Released Party, including the extent or effect of any grading of the Development Parcels; (iii) the extent or effect of any of the matters identified in Section 4.5.2; (iv) any construction defects, errors, omissions or other conditions, latent or otherwise; (v) economic and legal conditions on or affecting the Development Parcels or any improvements thereon; (vi) Environmental Matters, including the existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, or from, the Development Parcels or any current or future improvement thereon or any portion thereof; (vii) Claims of or acts or omissions to act of any Governmental Authority or any other third party arising from or related to any actual, threatened, or suspected Release of a Hazardous Material on, in, under, or from about, or adjacent to the Development Parcels or any current or future improvement thereon, including any Investigation or Remediation at or about the Development Parcels or any current or future improvement thereon; and/or (viii) arising from the Tustin Legacy Backbone Infrastructure Program, any community facilities district, service district or assessment district the cost or extent thereof, or the amount of the Project Fair Share Contribution or any community facilities district, service district or assessment district assessment against the Development Parcels described in this Agreement or the Development Agreement; (ix) the actions or inaction of the Navy with respect to any agreements between the City and the Navy; (x) the ability of the City or any third party to complete, or the likelihood of the completion or actual completion of, any of the improvements and infrastructure related to the Market Rate Project and the Affordable Project described by the General Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program, the agreements, environmental reports and statements listed on Attachment 10 or any other plan or policy of the City or any other governmental entity; (xii) the compliance or non-compliance by the City or any third party, including the Navy, with the City's General Plan, the Specific Plan, the Federal Deed and the Environmental Documents, or any special restrictions or other covenants and agreements applicable to other property at Tustin Legacy, or any other agreement or governmental restriction or plan affecting Tustin Legacy; (xiii) any disputes, claims, actions, causes of action, demands or orders arising between Initial Developer, any future Developer or Tustin TIC DDA 03.11.25 (14M)(3) FINAL 34 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Affordable Housing Developer or between them or any other third party; (xiv) a potential or declared violation of or other requirements or proceedings under the SLA Regulations affecting or prohibiting the disposition of the Development Parcels or a determination by the City not to proceed with the transaction based on the foregoing; and/or (xv) any action or inaction of the City or the City Parties in connection with any of the foregoing (including the exercise by the City of its discretion, decision or judgment with respect to the foregoing) or the failure of the City to approve an Affordable Housing Developer; provided that the foregoing release by the Developer Releasing Parties shall not extend to the extent of (x) any uncured Material Default by the City provided that the Material Default is directly related to the Claim, or (y) any Claim that is the result of the gross negligence or willful misconduct or fraud of the City Released Parties. This release includes (1) Claims of which Developer is presently unaware or which Developer does not presently suspect to exist which, if known by Developer, would materially affect Developer's release of the City Released Parties and (2) any and all damages and/or monetary relief (whether based in contract or in tort), including any right to claim direct, compensatory, reliance, special, indirect, consequential, expectation, anticipation, exemplary or punitive damages or losses any right to specific performance or other injunctive relief, including for conveyance of or to claim any right of title or interest in the Development Parcels or any portion thereof. Developer specifically waives the provision of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." In this connection and to the extent permitted by law, Developer on behalf of itself, and the other Developer Releasing Parties hereby agrees that (A) it realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to Claims or controversies which are presently unknown, unanticipated and unsuspected; (B) the waivers and releases in this Section 4.5.3 have been negotiated and agreed upon in light of that realization and (C) Developer, on behalf of itself and the other Developer Releasing Parties, nevertheless hereby intends to release, discharge and acquit the City Released Parties from any such unknown Claims and controversies to the extent set forth above. BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES THAT (A) IT HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS SECTION, (B) IT HAS HAD THE CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS MEANING AND SIGNIFICANCE, AND (C) IT HAS Tustin TIC DDA 03.11.25 (14M)(3) FINAL 35 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 ACCEPTED AND AGREED TO THE TERMS SET FORTH IN THIS SECTION. DEVELOPER'S INITIALS From and after the acquisition of the Property by Developer, this release shall be an equitable servitude and a covenant running with the land for the benefit of the City and its Governmental Successors and burdening the Real Property and Developer, its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner including all End Users. To further evidence its effectiveness with respect to each such Person, this release shall be included in its entirety in the Special Restrictions; provided that nothing herein limits or releases Claims by Developer against the Federal Government, including the Department of the Navy, regarding the environmental condition of the Real Property. The provisions of this Section 4.5.3 shall be included in the Special Restrictions, shall run with the land, shall remain in effect in perpetuity and shall survive termination of this Agreement, the Close of Escrow, and the execution and Recording by the City of each Certificate of Compliance, shall not merge with any deed and shall be binding upon Developer, its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner of the Property or portion thereof including all End Users, for the benefit of the City and its Governmental Successors, and from and after the Close of Escrow, and shall be binding upon and burden the Real Property. 4.5.4 No Additional Due Diligence Period. Developer acknowledges that, while the City has been negotiating this Agreement with Developer, Developer has had extensive access to the Development Parcels within which to undertake such physical inspections and other investigations of, and inquiries concerning, the Development Parcels as may be necessary to allow Developer to evaluate the environmental and physical characteristics of the Development Parcels, as well as such other matters as may be deemed by Developer to be reasonably necessary to generally evaluate the Development Parcels and determine the feasibility and advisability of Developer's purchase of the Property and development of the Development Parcels with the Market Rate Project and the Affordable Project, including performance of the Grading Work and construction of the Market Rate Project Improvements and the Affordable Project Improvements on the Real Property, and acknowledges that, Developer shall have the right to conduct additional due diligence prior to Close of Escrow pursuant to Section 5.1. Nothing in this Section 4.5.4 shall or shall be deemed to limit or modify Developer's Closing Conditions pursuant to Section 7.2.1 or Developer's termination rights and other rights and remedies under Section 15.3. 4.6 Developer Covenants, Preconditions to Close of Escrow. The provisions of this Section 4.6 are covenants of Developer for the benefit of the City, are conditions precedent to Transfers, Transfers of Control and to the Close of Escrow as further Tustin TIC DDA 03.11.25 (HM)(3) FINAL 36 City of Tustin/Irvine Company Por. Disp. Areas 2B, 2C and 8 described in this Section 4.6 and Sections 2.2 and 7.2.2 and shall, for the benefit of the City, be satisfied by Developer not later than the times specified for such conditions below. 4.6.1 Financing Plan. 4.6.1.1 Generally. As of the Effective Date, Developer has provided the City with, and City has approved, the pro forma financing plan and Budget Statement for development of the Market Rate Project ("Market Rate Project Financing Plan"), and has caused USA Properties to provide the City with the preliminary financing plan and Budget Statement for the Affordable Project that has been approved by the City ("Affordable Project Financing Plan"), demonstrating the financial feasibility of both the Market Rate Project and the Affordable Project. 4.6.1.2 Affordable Project Financing Plan and Updates. When required by this Section, Developer shall or shall cause Affordable Housing Developer to provide to Developer and the City an updated financing plan for the Affordable Project in substantially the form and with the same categories of information contained in the Affordable Project Financing Plan approved by the City in accordance with Section 4.6.1.4 and identifying the revisions to the information previously provided ("Updated Affordable Project Financing Plan") and additionally containing the following items: (i) a cash flow projection for operation of the Affordable Project; (ii) a true copy of any letters of interest for the Construction Loans for the Affordable Project to be submitted with the TCAC Application (to the extent available at the time of submission of the Updated Affordable Project Financing Plan); (iii) a cost breakdown for the estimated Development Costs to be incurred for the development of the Affordable Project; (iv) a true copy of any letter of interest for other financing from external sources to be submitted with the TCAC Application in the amounts necessary to provide debt and equity proceeds for the Affordable Project as may be required to pay for all Development Costs to be incurred consistent with the projected costs set forth in the TCAC Application (to the extent available at the time of submission of the Updated Affordable Project Financing Plan); (v) a true copy of the syndication letter provided by the Qualified Tax Credit Investor to be submitted with the TCAC Application (to the extent available at the time of submission of the Updated Affordable Project Financing Plan); and Tustin TIC DDA 03.11.25 (14M)(3) FINAL 37 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (vi) the identity of the Tax Credit Investor and confirmation that the Tax Credit Investor is a Qualified Tax Credit Investor (to the extent available at the time of submission of the Updated Affordable Project Financing Plan). Prior to the Lot 13 Transfer and until such time as financing for the entirety the Affordable Housing Developer's leasehold interest in the Affordable Project is secured, Developer shall cause Affordable Housing Developer to provide Developer and City periodic updates upon request of the City no less frequent than quarterly as to the implementation of the Updated Affordable Project Financing Plan and the status of any applications or submittals made in connection therewith and shall, at least thirty (30) calendar days prior to any Lot 13 Transfer and additionally when required by Sections 4.6.1.2 or 8.6.1, update the most recent Financing Plan for the Affordable Project then -approved by the City, if revisions are required to permit Affordable Housing Developer to make the certifications required by this Section 4.6.1 which shall be subject to review by the City in accordance with Section 4.6.1.4. It is anticipated that Affordable Housing Developer may utilize a combination of equity financing, financing from an institutional lender, subordinated secured loans from Developer (or a Developer Affiliate) and Affordable Housing Developer and federal and/or state tax credits, and that Affordable Housing Developer may support such financing with bank and tax credit investor guaranties and indemnities. The Updated Affordable Project Financing Plan shall establish the sources of funding that will be utilized by the Affordable Housing Developer to fund the design and construction of the Affordable Project. With each Updated Affordable Project Financing Plan submitted to the City, Developer shall represent and warrant in a writing in favor of the City (1) if the Guarantor remains TICAD or would become The Irvine Company, that Guarantor continues to satisfy the Minimum Asset Standards previously in effect or as modified consistent with Section 4.6.1.4 and that Guarantor remains TICAD or will become The Irvine Company or (2) if the Guarantor would be other than TICAD or The Irvine Company, that Guarantor satisfies the Minimum Asset Standards in such other amounts as are approved by the City in its sole discretion. In addition, Developer shall cause Affordable Housing Developer to certify, in a certificate dated as of the delivery date and executed by its president or other appropriate authorized officer on behalf of the Affordable Housing Developer for the benefit of the City as to the accuracy of the Updated Affordable Project Financing Plan and the truth and completeness of each of the following: (i) such funding is sufficient to pay through the Recording by the City of the Affordable Project Certificate of Compliance all anticipated Development Costs for the Affordable Project (or component thereof subject to the Lot 13 Transfer) and provides sufficient capital to design, construct and Complete the Affordable Project Improvements and to bring the Affordable Project to stabilization; (ii) there has been no material adverse change in the financial capacity or condition of Affordable Housing Developer or its financial or organizational relationships from that described in the Affordable Project Financing Plan previously approved; and (iii) the Budget Statement set forth in the most current Financing Plan for the Affordable Project remains a reasonable budget. For avoidance of doubt, the City hereby approves of Developer, The Irvine Company, TICAD, or another entity wholly owned by The Irvine Company or TICAD financing all or any portion of the Affordable Project with its own funds as required by either Sections 4.6.2.2 or 4.6.2.3. 4.6.1.3 Developer Closing, Transfer and Transfer of Control Requirements. At least thirty (30) Business Days prior to the Close of Escrow, and as a condition Tustin TIC DDA 03.11.25 (14M)(3) FINAL 38 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 precedent for the benefit of the City to the Close of Escrow and any Transfer and Transfer of Control, Developer shall provide an update to the previously approved Market Rate Project Financing Plan including the same categories of information contained therein and identifying revisions to the information previously provided ("Updated Market Rate Project Financing Plan") for the purposes of confirming that Developer has the financial capacity and capability to perform its obligations under this Agreement and shall certify for the benefit of the City as to the accuracy of the Updated Market Rate Project Financing Plan and the truth and completeness of each of the following (and shall deliver to the City reasonable evidence demonstrating that): (i) either the most recent Market Rate Project Financing Plan approved by the City remains in full force and effect and, or as modified by the most recent Updated Market Rate Project Financing Plan, demonstrates funding is sufficient to pay through the Final Certificate of Compliance all Development Costs for the Market Rate Project and provides sufficient capital to design, construct and Complete the Market Rate Project Improvements and to bring the Market Rate Project to stabilization, (ii) there has been no material adverse change in the financial capacity or condition of Developer, any Approved Equity Investor, or its financial or organizational relationships from that described in the Market Rate Project Financing Plan previously approved and that Guarantor continues to satisfy the Minimum Asset Standards; (iii) the Budget Statement for the Market Rate Project Improvements and the Affordable Project Improvements remains a reasonable budget, and (iv) Developer has available funds, without third -party financing or Mortgage of any kind, sufficient to pay all Development Costs, including sufficient equity capital to design and construct the Market Rate Project Improvements and to bring the Market Rate Project to stabilization consistent with the terms of this Agreement. In addition, prior and as a condition to Close of Escrow, Developer shall have caused Affordable Housing Developer to have delivered an Updated Affordable Project Financing Plan meeting the requirements of Section 4.6.1.2 which shall have been approved by the City as set forth in Section 4.6.1.4. 4.6.1.4 City Review. The City shall have the right to reasonably approve or disapprove any immaterial modifications between a Financing Plan previously approved by the City and a proposed updated Financing Plan (or any material modifications between a Financing Plan for the Affordable Project previously approved by the City and a proposed updated Financing Plan for the Affordable Project) and to approve in its sole discretion any material modifications between a Financing Plan for the Market Rate Project previously approved by the City and a proposed updated Financing Plan for the Market Rate Project. For avoidance of doubt, any modification to the Financing Plan for the Market Rate Project that does not include any third -party financing or Mortgage of any kind, a sale -leaseback transaction or Mezzanine Financing is deemed to be an immaterial modification, but remains subject to City's reasonable approval. In addition, the City shall have the right to review and approve the Guaranty in accordance with Sections 8.9.1 and 8.9.2 and the right to review each instrument evidencing Evidence of Equity and Equity Commitment in its sole discretion, provided that if TICAD or The Irvine Company are and are intended to remain following the Close of Escrow or Transfer or Transfer of Control the Equity Investor and Guarantor and there is no outside investor, then the City's review of the instruments evidencing Evidence of Equity and the Equity Commitment shall be for purposes of determining if there are material modifications that adversely impact the City as determined by the City in its reasonable discretion and otherwise shall be in the City's sole discretion as to all such modifications. It shall be reasonable for the City to increase the Minimum Tustin TIC DDA 03.11.25 (14M)(3) FINAL 39 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Asset Standards by a comparable amount if the total amount set forth in the Budget Statement or any proposed updated Financing Plan for the Market Rate Project increases by five percent (5%) or more. The City's review of modifications set forth in each updated Financing Plan and of each instrument evidencing Evidence of Equity and Equity Commitment (and the documentation for any Construction Loan) shall be for the purposes of determining (i) the availability of the contemplated financing pursuant to the Construction Loans with respect to the Affordable Project only, (ii) the availability of funds to Developer including equity capital from sources approved by the City in accordance with this Agreement, being sufficient funds to pay all Development Costs and to satisfy all requirements of Developer or Affordable Housing Developer, as applicable, as set forth in this Agreement; (iii) that the contemplated funding meets the budget requirements for the Project as set forth in the applicable Budget Statement; and (iv) that the contemplated funding is being provided on terms consistent with the terms and conditions of this Agreement. If Developer determines at any of the dates upon which an updated Financing Plan is due to the City that there is no required change to the Financing Plan then in effect, Developer shall, or shall cause Affordable Housing Developer (with respect to the Affordable Project Financing Plan) to, provide written notice to the City of the same and shall or shall cause Affordable Housing Developer (with respect to the Affordable Project Financing Plan) to certify as to the accuracy, truth and completeness of the previously delivered Financing Plan and shall submit to the City such documents as may be requested by the City to allow the City to confirm, in its reasonable discretion, that the Updated Financing Plan and the documents delivered in connection therewith remain sufficient to satisfy all applicable requirements hereunder. Except to the extent already approved in the last sentence of Section 4.6.1.2, if there are modifications to any previously approved Financing Plan, the City shall have the right to reasonably approve or disapprove such modifications including any modifications to the Evidence of Equity, Equity Commitment, and/or Construction Loan documentation and evidence that the Guarantor meets the Minimum Asset Standards. If the City is not reasonably satisfied with the financial status of Developer, the Equity Investor, the Guarantor, the financial feasibility of the Project or any portion thereof or any of the other contents of the Updated Affordable Project Financing Plan or the Updated Market Rate Project Financing Plan following review of the certification and the above materials, the City shall be entitled to obtain such other information and assurances from Developer and such other financial information as the City may reasonably request of Developer and its members, owners and/or partners, if any, and their respective members, partners, shareholders and/or other owners at each tier until substantial assets acceptable to the City in its reasonable discretion are identified. Such information shall be subject to the confidentiality provisions of Section 18.24. 4.6.2 Additional Assurances. 4.6.2.1 Declaration of Ownership; Documentation at Effective Date. Prior to or concurrently with the Effective Date, Developer shall deliver to the City a declaration, dated as of or prior to the Effective Date, certified by the chief financial officer or other appropriate authorized officer of Initial Developer, substantially in the form and substance of the Developer Original Certificate attached to this Agreement as Attachment 19A ("Developer Original Certificate"). Tustin TIC DDA 03.11.25 (14M)(3) FINAL 40 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 4.6.2.2 Evidence of Equity. If Developer or any Transferee intends to fund the Development Costs in whole or in part without an Equity Investor, Developer or Transferee, as applicable, shall, prior to or concurrently with the Effective Date and when required by Sections 2.2.2 through 22.4, Section 7.2 or Section 8.10, provide reasonable evidence and written assurances to the City to demonstrate that it has the financial capacity, Liquid Assets and Net Worth in each case satisfactory to the City in its sole discretion (but if the Developer is and shall remain after any then contemplated Transfer, The Irvine Company or TICAD, in the City's reasonable discretion), to provide sufficient equity, when combined with the other sources and uses set forth in the Financing Plans to fund the Development Costs, including by provision to the City of resolutions or other documentation to evidence the availability and authorizing the expenditure of such funds ("Evidence of Equity"). The Evidence of Equity shall be subject to the approval of the City in its sole discretion, provided that if the Equity Investor is The Irvine Company or TICAD, such review shall be in the City's reasonable discretion, and shall be and remain in full force and effect as to each of the Market Rate Project and the Affordable Project through the Recording by the City of the Certificate of Compliance for the Project. The provisions of this Section 4.6.2.2 are not and shall not be deemed under any circumstances to constitute Affordable Project Provisions and shall not apply, or be deemed under any circumstances to apply, to Affordable Housing Developer. 4.6.2.3 Equity Commitment. If Developer or Transferee has identified an Equity Investor approved by the City (provided, however that City has heretofore approved TICAD as the Equity Investor in Initial Developer and as the Equity Investor in any other Developer or Transferee) which has the financial capacity, Liquid Assets and Net Worth, as determined by the City in its sole discretion, sufficient when combined with the other sources and uses set forth in the Financing Plans to fund the Development Costs, provided that if the Equity Investor is The Irvine Company or TICAD, then no additional Liquid Assets and Net Worth review is required if The Irvine Company or TICAD continues to satisfy the Minimum Asset Standards (The Irvine Company, TICAD or such other Equity Investor approved by the City being referred to in this Agreement as an "Approved Equity Investor"), Developer or Transferee, as applicable, shall deliver to the City when required by Sections 2.2.2 through or Section 8.10: (i) evidence of an executed, binding and effective contractual commitment made by Approved Equity Investor in favor of Developer or Transferee, as applicable, dated as of the Effective Date and each Transfer Date, as applicable, to fund the required equity for the Market Rate Project and the Affordable Project substantially in the form and substance of the agreement attached to this Agreement as Attachment 15C ("Equity Commitment"). The Equity Commitment shall remain in full force and effect as to a Parcel through the Recording by the City of a Certificate of Compliance for such Parceli and (ii) a declaration in favor of the City at each of the Effective Date and each Transfer Date certified by the chief financial officer or other appropriate authorized officer of the Approved Equity Investor in substantially the form and substance of the Equity Investor Original Certificate attached as Attachment 15A ("Equity Investor Original Certificate") and dated as of the Effective Date and Tustin TIC DDA 03.11.25 (14M)(3) FINAL 41 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 each Transfer Date. The provisions of this Section 4.6.2.3 are not and shall not be deemed under any circumstances to constitute Affordable Project Provisions and shall not apply, or be deemed under any circumstances to apply, to Affordable Housing Developer. Developer shall from time to time demand from the Equity Investor under the Equity Commitment, as capital contributions to Developer, such amounts as may be necessary for Developer to satisfy the "DDA Obligations" (as that term is defined in the Equity Commitment). Developer's obligations under this Agreement are not conditioned on the Equity Investor's performance of its obligations under the Equity Commitment. 4.7 Lot 13 Transfer. 4.7.1 Requirements Prior to Affordable Proiect Outside Date. Developer shall have the right, but not the obligation, prior to the outside date for the Affordable Project Closing set forth in the Schedule of Performance which date shall not be extended for Force Majeure Delay ("Affordable Project Outside Date") to enter into an Approved Ground Lease with an Affordable Housing Developer approved by the City pursuant to Section 1.4.3 for the entirety of the Lot 13 Property or, if authorized by Section 4.7.2, for any Parcel comprising a portion of Lot 13 (a "Lot 13 Transfer") pursuant to the terms of the Lot 13 PDA and provided that the Lot 13 Transfer Conditions are satisfied. If the Lot 13 Transfer Conditions and the additional, non -conflicting requirements of the Lot 13 PDA are satisfied, Developer shall cause the Lot 13 Transfer to take place, provided that if the Lot 13 Transfer does not take place due solely to action or inaction by Affordable Housing Developer, including default under the Lot 13 PDA, Developer shall not be in default with respect to the Affordable Project Provisions if it is timely performing the Affordable Project Enforcement Obligations in accordance with the requirements of this Agreement. For avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, Developer is not obligated to complete the Lot 13 Transfer, and Developer may cause the construction of the Affordable Project Improvements to be Completed without a Lot 13 Transfer; however, on or before the Affordable Project Outside Date, Developer shall have caused one of the following to occur: (i) the entirety of Lot 13, whether pursuant to one or two Lot 13 Transfers shall have been leased to an Affordable Housing Developer meeting the requirements of Section 1.4.3 under one (1) or two (2) Approved Ground Lease(s) or (ii) Developer shall have satisfied the Alternative Affordable Project Development Plan Conditions Precedent set forth in Section 4.8 and thereby agreed to undertake the Affordable Project Provisions directly. If Developer satisfies the Alternative Affordable Project Development Plan Conditions Precedent set forth in Section 4.8 and agrees to undertake the Affordable Project Provisions directly, Developer may thereafter proceed with a Lot 13 Transfer after the Affordable Project Outside Date, but otherwise pursuant to all of the other terms and conditions under this Section 4.7, only upon receipt of the prior written consent of the City Manager or his or her designee, which consent shall not be unreasonably withheld, delayed or conditioned, provided any such Lot 13 Transfer does not adjust any of the applicable outside dates for the commencement or Completion of any of the Affordable Project Improvements as set forth in the Schedule of Performance, and provided further that the extensions and cure rights in Section 13.5 shall not apply to extend the outside dates for performance in the Schedule of Performance. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 42 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 4.7.2 No More than Two (2) Lot 13 Transfers. Provided that Developer provides prior written notice to the City not later than ninety (90) calendar days prior to the first Lot 13 Transfer of its intent to carry out two Lot 13 Transfers and the Final Tract Map has then been Recorded and divides Lot 13 into not more than two (2) Parcels, Developer shall have the right, but not the obligation, to separately lease each such Parcel pursuant to an Approved Ground Lease at one or two (2) Lot 13 Transfers at each of which the entirety of one of the two Parcels comprising Lot 13 is ground leased to Affordable Housing Developer; provided that (i) the Lot 13 Transfer for the portion of Lot 13 to be developed in Phase 1 shall be the first Lot 13 Transfer and in all cases the first Parcel to be developed and (ii) any Leasehold Mortgage shall encumber the entirety of the ground lease interest of Affordable Housing Developer pursuant to each such Lot 13 Transfer. 4.7.3 Conditions Precedent to Lot 13 Transfer. Prior to the anticipated date of the Lot 13 Transfer, Developer shall provide to the City completed versions of all documents required to be delivered as conditions to the Lot 13 Transfer (other than documents related to any Leasehold Mortgage, which are subject to the requirements of Section 17.2.3), with initial drafts of the contemplated documents (other than evidence of insurance) to be delivered at least thirty (30) Business Days prior to the proposed date of the Affordable Project Closing, substantially final versions and the evidence of insurance described in Section 4.7.3.10 to be delivered at least five (5) Business Days prior to the date of the Affordable Project Closing, which shall be red -lined to show changes from the drafts reviewed by the City, and executed copies to be delivered within three (3) Business Days after the date of the Affordable Project Closing, and either indicating no change in the previously submitted forms or providing documents red -lined to show changes from the versions previously delivered to the City. Any Lot 13 Transfer shall be subject to the following conditions precedent, for the benefit of the City (unless expressly waived or modified by the City in writing in its sole discretion) ("Lot 13 Transfer Conditions"): 4.7.3.1 Close of Escrow. The Close of Escrow shall have occurred. 4.7.3.2 Lot 13 PDA and Ground Lease Conditions. All conditions precedent set forth in the Lot 13 PDA and Ground Lease Option and not inconsistent with the terms of this Agreement shall have been satisfied (or if waived by Developer, with such waiver approved by the City in its reasonable discretion if such waived condition would modify any of the Affordable Project Provisions and provided the same shall not constitute a waiver by the City of the other Lot 13 Transfer Conditions). 4.7.3.3 Affordable Project Financing Plan. Developer shall cause Affordable Housing Developer to provide the City with the Affordable Project Financing Plan or Updated Affordable Project Financing Plan meeting the applicable requirements of Section 4.6.1 with respect to the applicable component of the Affordable Project concurrently with the filing of each application for Tax Credits with TCAC ("TCAC Application"). The City will accept (i) any financing provided by a Leasehold Mortgagee procured by Affordable Housing Developer which is on terms not materially different than the financing terms set forth on the then approved Financing Plan for the Affordable Project; (ii) as a Permitted Leasehold Mortgagee any lender or credit enhancer that is a Qualified Institutional Lender, or any lender that is not a Qualified Tustin TIC DDA 03.11.25 (14M)(3) FINAL 43 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Institutional Lender so long as such lender is specifically identified in the most recent Affordable Project Financing Plan then approved by the City or as otherwise agreed by the City pursuant to Sections 4.6.1.2 and 4.6.1.4, and (iii) as a tax credit investor, any Person that is a Qualified Tax Credit Investor or as otherwise agreed by the City in its reasonable discretion. Affordable Housing Developer may identify with specificity any submitted documents that Affordable Housing Developer wants the City to maintain as confidential documents and a statement as to why the request is consistent and complies with the provisions of the Public Records Act. The City shall evaluate and treat such information as confidential to the extent described in Section 18.24.1 and 19242 4.7.3.4 Joint Use Agreement. If Lot 13 is comprised of more than one Parcel, and the Lot 13 Transfer is applicable to only one such Parcel, then Developer and Affordable Housing Developer shall enter into and record in the Official Records against Lot 13, a joint use and easement agreement ("Joint Use Agreement') that provides for the shared use and related services required for the Parcels within Lot 13 to be operated in accordance with the Affordable Housing Declaration. 4.7.3.5 Evidence of Financing; Affordable Project Closing Documents. Not later than three (3) Business Days prior to each Lot 13 Transfer, Developer shall have caused Affordable Housing Developer to submit to the City the following evidence of financing with respect to the applicable Lot 13 Transfer and applicable component of the Affordable Project: (i) Funding Sources and Uses; Guarantor Financial Capacity. Demonstration to the reasonable satisfaction of the Deputy City Manager — Real Property or designee that (A) each of the Persons providing equity or debt proceeds in accordance with the most recent Financing Plan for the Affordable Project approved by the City pursuant to Section 4.6.1.4 continues to be ready to provide such debt and equity financing at the Affordable Project Closing and the equity and debt proceeds to be provided are consistent with the most recent Financing Plan for the Affordable Project previously approved; and (B) there has been no material adverse increase in the estimated Development Costs for the completion of the applicable component of the Affordable Project as set forth in the most recent City approved Financing Plan for the Affordable Project, which increase is not covered by an identified estimated source of proceeds and (C) compliance with Section 6.2 of the Guaranty. (ii) Reservation Letter. A tax-exempt bond allocation and/or a reservation letter for Tax Credits from the California Tax Credit Allocation Committee in an amount contemplated by Affordable Housing Developer to develop the Affordable Project in an amount not less than that provided for on the as set forth in the most recent City approved Financing Plan for the Affordable Project and such reservation letter shall continue in full force and effect through the Affordable Project Closing. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 44 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (iii) Mortgage Documents. With respect to each Construction Loan as set forth in the most recent City approved Financing Plan for the Affordable Project, substantially final drafts of loan documents evidencing the Construction Loan, which loan documents shall be consistent with such Financing Plan and shall meet the requirements of Section 17.2.3. 4.7.3.6 Document Delivery. Not later than three (3) calendar days prior and as a condition in favor of City to any Lot 13 Transfer, Developer shall have submitted and shall have caused Affordable Housing Developer to submit to Escrow (or directly to City) the following executed instruments in Recordable form (if applicable) and in each case consistent with the requirements of this Agreement and the Other Agreements: (i) an Approved Ground Lease executed by Developer and Affordable Housing Developer for the Lot 13 Property; (ii) an acknowledgement and consent to the Affordable Housing Declaration executed by Affordable Housing Developer, acknowledged and in recordable form; (iii) an Affordable Project Reaffirmation of Guaranty executed by Guarantor or if the Guarantor is replaced with a new Guarantor approved by the City prior to the Lot 13 Transfer, in accordance with Section 8.9.2, a new Guaranty substantially in the form and substance of Attachment 14A. (iv) a Guarantor Date Down Certificate executed by the chief financial officer or other appropriate authorized officer of Guarantor or, if the Guarantor is replaced with a new Guarantor approved by the City prior to the Lot 13 Transfer in accordance with Section 8.9.2, a Guarantor Original Certificate, in either case certified by the chief financial officer or other appropriate authorized officer of the Guarantor and dated as of the Affordable Project Closing date; (v) a Reaffirmation Legal Opinion executed by legal counsel to Guarantor or if the Guarantor is replaced by a new Guarantor approved by the City prior to the Lot 13 Transfer, a Guaranty Legal Opinion; (vi) documents evidencing the obligation to provide the equity contribution described in Section 4.7.3.9; (vii) Construction Loan documents meeting the requirements of Article 17 secured by the ground lease interest of Affordable Housing Developer, in substantially final form consistent with the provisions of Section 17.2.3, (viii) a Subordination Agreement acknowledged and executed by each Leasehold Mortgagee, in Recordable Form; and Tustin TIC DDA 03.11.25 (14M)(3) FINAL 45 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (ix) such proof of Developer's and Affordable Housing Developer's authority and authorization to the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Developer to act for and/or bind Developer as may be reasonably required by Title Company and such other documents or instruments as Escrow Holder may reasonably request to consummate the transaction contemplated in this Agreement. 4.7.3.7 Construction Loan Closing. Each Leasehold Mortgagee for a Construction Loan, and Affordable Housing Developer shall be prepared to close the corresponding Construction Loan for the Affordable Project concurrently with the Affordable Project Closing for such Parcel, and Affordable Housing Developer shall have provided to Developer and the City written verification from Escrow confirming that the deed of trust to be Recorded in conjunction with the closing of such Construction Loan has been fully executed and acknowledged and in Recordable form and deposited into Escrow by the Leasehold Mortgagee for the Construction Loan, substantially in the amount set forth in the most recent Financing Plan for the Affordable Project approved by the City pursuant to Section 4.6.1.4. 4.7.3.8 Financial Capability and Other Conditions. Affordable Housing Developer shall have satisfied the applicable conditions set forth in Section 4.6.1, including delivery to the City of evidence of financing as required by such provisions. 4.7.3.9 Qualified Tax Credit Investor. The Qualified Tax Credit Investor shall be prepared to contribute to Affordable Housing Developer the equity funds that are required to be contributed to Affordable Housing Developer at the Affordable Project Closing, substantially in the amount set forth in the most recent Financing Plan for the Affordable Project approved by the City. 4.7.3.10 Insurance. Developer shall cause Affordable Housing Developer to submit to the City evidence that the insurance policies required to be obtained by Affordable Housing Developer pursuant to Article 11 will be effective as to the Property being Transferred as of the close of escrow for such Property. 4.7.3.11 Entitlements. Developer shall have timely applied for and shall have been granted all Pre -Closing Entitlements required for development of the Affordable Project on Lot 13 or Parcel thereof for which the Approved Ground Lease is to be executed and all such Pre -Closing Entitlements shall be Finally Approved. 4.7.3.12 Basic Concept Plan. If Developer or Affordable Housing Developer seeks any modification to the previously approved Basic Concept Plan for the Affordable Project prior to the Lot 13 Transfer, Developer and Affordable Developer shall have timely applied for and the City shall have approved any modifications to the same in accordance with Sections 8.5.5 and 8.5.6. 4.7.3.13 Building Permits. The City shall be prepared to issue all parking structure and building permits for the Building(s) to be constructed on the Lot 13 Real Tustin TIC DDA 03.11.25 (14M)(3) FINAL 46 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Property or Parcel thereof for which the Approved Ground Lease is to be executed, which issuance shall only be conditioned upon payment of fees required as a precondition to issuance. 4.7.3.14 Horizontal Improvements. The City shall be prepared to issue the grading permit for the Grading Work on the Lot 13 Real Property and permits for all of the Affordable Project Horizontal Improvements required for development of the Lot 13 Real Property or Parcel thereof for which the Approved Ground Lease is to be executed. 4.7.3.15 Default. Developer shall not be in Potential Default or Material Default of any covenant or agreement to be performed by Developer under this Agreement or the Other Agreements and neither Developer nor Affordable Housing Developer shall be in default under the Lot 13 PDA. 4.7.4 Assistance with TCAC and CDLAC. The City agrees to use commercially reasonable efforts to support the Affordable Project as local reviewing agency for Affordable Housing Developer's application for Tax Credits submitted to the California Tax Credit Allocation Committee ("TCAC") and, if applicable, for Affordable Housing Developer's application for volume cap submitted to the California Debt Limit Allocation Committee ("CDLAC"). If requested by Affordable Housing Developer, the City agrees to hold or participate in (as applicable) a TEFRA Hearing in connection with Affordable Housing Developer's application submitted to the California Debt Limit Allocation Committee in a timely manner and to support the Affordable Project at any such TEFRA Hearing. Provided the issuance requested is consistent with the most recent City -approved Financing Plan for the Affordable Project, the City further agrees to provide a letter of support in connection with the issuance of bonds for the Affordable Project by the California Statewide Community Development Authority, California Municipal Finance Authority and/or the California Housing Finance Authority as requested by Affordable Housing Developer (either, a "Bond Issuer"). Developer and the City will agree to consider in good faith and promptly review requested modifications to this Agreement required in order to comply with the requirements of Bond Issuer, TCAC or CDLAC or a Qualified Tax Credit Investor or a Permitted Leasehold Mortgagee, and if approved to effectuate such changes in order to be in compliance with the requirements. The City Manager is authorized, without further approval of the City, to make changes to this Agreement as required to satisfy the requirements described in this Section. 4.8 Developer Election to Develop Affordable Proiect Pursuant to an Alternative Affordable Proiect Development Plan. The determination by Developer to use an Alternative Affordable Project Development Plan to satisfy the Affordable Project Provisions shall be Developer's agreement to carry out the Affordable Project Provisions directly and, whether or not any Affordable Housing Developer is or is not then in default under its agreements (including a Lot 13 PDA), provided that the election of Developer to use an Alternative Affordable Project Development Plan shall not be subject to the cure rights or any schedule extensions set forth in Section 13.5. If Developer elects to develop the Affordable Project pursuant to an Alternative Affordable Project Development Plan, then no later than ninety (90) calendar days prior to the Affordable Project Outside Date and in all Tustin TIC DDA 03.11.25 (14M)(3) FINAL 47 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 events no later than thirty (30) Business Days prior to the date upon which it anticipates satisfaction of the Alternative Affordable Project Development Plan Conditions Precedent (as defined below), Developer shall provide written notice to the City of Developer's intent to utilize an Alternative Affordable Project Development Plan, and on or before the Affordable Project Outside Date (and without extension pursuant to Section 13.5 or for Force Majeure Delay), Developer shall have satisfied the following conditions precedent for the benefit of the City (unless expressly waived or modified by the City in writing in its sole discretion) ("Alternative Affordable Project Development Plan Conditions Precedent"): 4.8.1 No Lot 13 Transfer Shall Have Occurred and Lot 13 PDA Is Terminated With Respect to the Affected Parcel. The Close of Escrow shall have occurred, there shall have been no Lot 13 Transfer associated with the Parcel for which Developer seeks to perform the Affordable Project Provisions and the Lot 13 PDA and other agreements between Developer and any Affordable Housing Developer shall have been terminated with respect to such Parcel; 4.8.2 Affordable Project Financing Plan. Developer shall provide the City with an Affordable Project Financing Plan or Updated Affordable Project Financing Plan meeting the applicable requirements of Section 4.6.1. 4.8.3 Affordable Project Development Plan Certificate. Developer shall have delivered a certificate substantially in the form and substance of the instrument attached as Attachment 9 ("Alternative Affordable Project Development Plan Certificate"). Delivery by Developer of the Alternative Affordable Project Development Plan Certificate shall be deemed conclusive evidence that Developer has agreed to undertake the Affordable Project Provisions directly, subject to the last sentence of Section 4.7.1. 4.8.4 No Mortgages. There shall be no Mortgages, and no Tax Credit financing that would require a Mortgage, with respect to Developer's fee interest in Lot 13, and no sale leaseback transactions or Mezzanine Financing. 4.8.5 Document Deliveries. Developer shall have submitted directly to City the following executed instruments in Recordable form (if applicable) and in each case consistent with the requirements of this Agreement and the Other Agreements: (i) an Affordable Project Reaffirmation of Guaranty executed by Guarantor or if the Guarantor is replaced with a new Guarantor approved by the City, in accordance with Section 8.9.2, a new Guaranty substantially in the form and substance of Attachment 14A. (ii) a Guarantor Date Down Certificate executed by the chief financial officer or other appropriate authorized officer of Guarantor or, if the Guarantor is replaced with a new Guarantor approved by the City prior to the Lot 13 Transfer in accordance with Section 8.9.2, a Guarantor Original Certificate, in either case certified by the chief financial officer or other appropriate authorized Tustin TIC DDA 03.11.25 (14M)(3) FINAL 48 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 officer of the Guarantor and dated as of the date of the Alternative Affordable Project Development Plan Certificate; (iii) a Reaffirmation Legal Opinion executed by legal counsel to Guarantor or if the Guarantor is replaced by a new Guarantor approved by the City, a Guaranty Legal Opinion; and (iv) documents evidencing the obligation to provide the Evidence of Equity and/or Equity Commitment described in Section 4.6.2. 4.8.6 Insurance. Developer shall submit to the City evidence that the insurance policies required to be obtained by Developer or Affordable Housing Developer pursuant to Article 11 are then effective as to Lot 13. 4.8.7 Basic Concept Plan. If Developer seeks any modification to the previously approved Basic Concept Plan for the Affordable Project, Developer a shall have timely applied for and the City shall have approved any modifications to the same in accordance with Sections 8.5.5 and 8.5.6. 4.8.8 Building Permits. The City shall be prepared to issue all parking structure and building permits for the Building(s) to be constructed on the Lot 13 Real Property, which issuance shall only be conditioned upon payment of fees required as a precondition to issuance. 4.8.9 Horizontal Improvements. The City shall be prepared to issue the grading permit for the Grading Work on the Lot 13 Real Property and permits for all of the Affordable Project Horizontal Improvements required for development of the Lot 13 Real Property. 4.8.10 Default. Developer shall not be in Potential Default or Material Default of any covenant or agreement to be performed by Developer under this Agreement or the Other Agreements. 5. Developer's License, Access to Records and Communications. 5.1 Limited License. The City grants to Developer, for use by Developer and its officers, directors, employees, agents, representatives, consultants, contractors, and other Persons accessing the Development Parcels by, through or with the permission or under the direction or auspices of Developer or Affordable Housing Developer ("Developer Representatives") a limited and revocable license to enter upon the Development Parcels at any time prior to Close of Escrow for purposes of obtaining data and making surveys and tests necessary to carry out this Agreement, provided that, prior to the effectiveness of such license, Developer shall: (i) prior to entry on the Development Parcels, deliver to the City written evidence that Developer has procured and then maintains the insurance required under Sections 11.1 and 11.2; (ii) give the City twenty-four (24) hours telephonic, Tustin TIC DDA 03.11.25 (14M)(3) FINAL 49 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 electronic mail or written notice of any intended access which involves work on the Development Parcels or may result in any impairment of the use of the Development Parcels or any portion thereof or any adjacent property by any then -current owners, occupants, or contractors; (iii) access the Development Parcels in a safe manner; (iv) conduct no environmental testing, sampling, invasive testing, or boring without the written consent of the City (and, in all cases, Developer shall not carry out any environmental testing, sampling, invasive testing, or boring on the Development Parcels prior to the effective date of the environmental insurance policy required by Section 1.1.3 of Exhibit B to the ENA); (v) allow no dangerous or hazardous condition to be created or caused on the Development Parcels to continue beyond the completion) of such access, (vi) comply with all Govermnental Requirements and obtain all permits required in connection with such access; (vii) conduct inspections and testing, subject to the rights of any existing tenants or contractors doing work on the Development Parcels, if any (which inspections and testing, if conducted at times other than normal business hours, shall be conducted only after obtaining the City's consent, which shall not be unreasonably withheld); (viii) keep the Development Parcels free and clear of any and all liens of any kind caused by Developer or the Developer Parties, including mechanics' liens or materialmen's liens related to Developer's or any Developer Parties' access to or inspection of the Development Parcels; (ix) cause the portion of the Development Parcels subject to such inspection to be restored to the condition existing immediately prior to such inspection promptly upon completion of each inspection; and (x) provide City, at no additional charge, with copies of the results of each inspection made by or for Developer after Developer's receipt of such results. The City shall have the right to have a City representative present on the Development Parcels during any testing under clause iv of this Section 5.1. This limited license shall commence on the Effective Date, may be revoked by the City during the continuation of any Default by Developer, or upon termination of this Agreement by any Party, and shall be automatically revoked and terminated upon occurrence of the Close of Escrow. 5.2 Indemnity. Prior to the Close of Escrow, Developer, on behalf of itself and its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner but excluding End Users, hereby agrees to protect, indemnify, defend and hold harmless the City Indemnified Parties from and against any and all Claims arising in connection with or resulting from or related to Developer's or the Developer Representatives': (i) exercise of the license provided in Section 5.1, including entry onto or access to the Development Parcels, or breach by Developer or any Developer Parties of the terms and conditions of the grant of license; (ii) exercise of any rights under such license, including, any inspections, surveys, tests or studies performed by Developer or the Developer Representatives with respect to the Development Parcels, the Market Rate Project or the Affordable Project; (iii) presence, activities or work on or related to use of the Development Parcels by Developer or the Developer Representatives and any Construction Liens or mechanics' or materialmen's liens arising with respect thereto; (iv) bodily injury to or death of any person (including any of the City Indemnified Parties or any employee or contractor of the City Indemnified Parties) or damage to or loss of use of property resulting from any of the foregoing, (v) a Release of Hazardous Materials on the Development Parcels caused by the acts of Developer or any Developer Representatives and (vi) Recording of any Construction Liens related to Developer's inspection and/or Investigation of the Development Parcels, in each Tustin TIC DDA 03.11.25 (14M)(3) FINAL 50 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 case whether occurring prior to or following the Effective Date; save and except to the extent such Claims result from the gross negligence, willful misconduct or fraud of City or any City Indemnified Party. Developer shall keep the Development Parcels free and clear of any and all Construction Liens related to Developer's inspection and/or Investigation of the Development Parcels. The indemnification by Developer set forth in this Section 5.2 shall survive termination of this Agreement, Close of Escrow, shall not merge with any deed and shall be binding upon Developer, its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner of the Property or portion thereof including all End Users, for the benefit of the City and its Governmental Successors, but only with respect to Claims Accrued prior to the earlier of Close of Escrow or the earlier termination of this Agreement. 5.3 Communications with City and Third Parties. From and after the Effective Date, communications with the City by Developer and the Developer Representatives shall be directly with the City Manager or designee, who shall be the administrator of this Agreement on behalf of the City (and, subject to Section 18.11, shall have the authority, power and right to grant all approvals and consents on behalf of the City as required hereunder), and such other employees, consultants, and attorneys of the City from time to time as the City Manager may designate. In addition, Developer shall have the right to communicate with staff of other public agencies; and with third parties to all agreements affecting the Development Parcels in connection with Developer's proposed purchase of the Property and development of the Market Rate Project and the Affordable Project, as applicable. The City staff shall have the right, but not the obligation, to attend and participate in any and all meetings with other public agencies, with regard to the Market Rate Project and the Affordable Project, as applicable. Upon request of the City, Developer shall promptly provide the City with a copy of each material item of correspondence (including emails, letters, facsimiles, and any enclosures and attachments) sent to or received by Developer from third parties in connection with entitlements or approval required for the Market Rate Project and the Affordable Project, as applicable, or with respect to community or governmental approval of the Market Rate Project and the Affordable Project, as applicable, provided, however, that Developer shall not be obligated to deliver any such materials that based upon advice of counsel are determined to be subject to attorney -client or other privilege or exception from disclosure. 6. Title; Survey. 6.1 Survey by Developer. During the term of the ENA, Developer obtained and provided to the City at Developer's sole cost and expense the ALTA/NSPS Land Title Survey for the Real Property prepared by Fuscoe Engineering (such surveyor or other licensed surveyor subsequently designated by Developer during the Term of this Agreement being referred to in this Agreement as "Surveyor"), dated January 16, 2025, certified by the Surveyor to the City and the Title Company and acceptable Tustin TIC DDA 03.11.25 (14M)(3) FINAL 51 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 to each -("Survey"). 6.2 Permitted Exceptions. Developer, at Developer's sole cost and expense, has caused the Title Company to prepare and deliver to Developer and the City with respect to the Property the Preliminary Report attached as Attachment 4 (the "Preliminary Report") based upon which the Title Company may issue an extended American Land Title Association Owner's Policy for the Property (collectively "ALTA Policy"). An ALTA Policy shall be issued at the Close of Escrow to Developer with respect to the Property in the amount of the Purchase Price and such additional amounts as Developer may request of Title Company. Prior to the Effective Date, Developer has reviewed the Preliminary Report and the other relevant documents referenced below and has approved the matters set forth in the Preliminary Report. "Permitted Exceptions" to title shall mean the following: (i) all matters set forth on the Preliminary Report attached as Attachment 4, or set forth on the Survey,(provided that if the Real Property is annexed to the District as CFD 18-01 Zone 3 as required hereunder, CFD 13-01 shall not be a Permitted Exception); (ii) the Other Agreements that are to be executed, and if applicable, Recorded pursuant to Article 7; (iii) the lien of special taxes in CFD 18-01 Zone 3; (iv) the Federal Deed; (v) the Memorandum of Agreement; and (vi) all covenants, restrictions and encumbrances, liens, exceptions, leases, restrictions, deed restrictions and qualifications expressly set forth in or permitted or contemplated by this Agreement or the Other Agreements. Notwithstanding anything to the contrary in this Agreement, the City shall deliver the Property to Developer free and clear of all monetary liens other than (A) liens for real property taxes that are not yet delinquent, (B) assessments and special taxes imposed upon the Property by the City (including the CFD 18-01 Zone 3 Special Tax) and by other governmental entities, including unless there is a TUSD Lien Release at Close of Escrow with TUSD Lien Release Documentation Recorded, Community Facilities District No. 15-2 of the Tustin Unified School District ("TUSD CFD"), and (C) Construction Liens and/or other liens or costs caused by or arising from or in connection with the limited license granted pursuant to the ENA or Section 5.1. 6.3 Supplemental Title Reports. If prior to the Close of Escrow the Title Company discloses additional matters that affect title to the Property not disclosed on the Preliminary Report, then within ten (10) Business Days after Developer's receipt of any report issued by the Title Company concerning the Property (a "Supplemental Title Report"), Developer shall cause to be provided to the City a copy of such Supplemental Title Report and shall specify in writing Developer's disapproval of any item or exception shown on such Supplemental Title Report not previously included in the Preliminary Report and that is not acceptable to Developer (each a "Disapproved Exception") together with Developer's suggested cure thereof (to the extent capable of being cured); provided, however, that Developer shall not have the right to disapprove any item or exception specifically consented to by Developer, including all exceptions arising pursuant to this Agreement and all Permitted Exceptions approved or deemed approved pursuant to Section 6.2. Failure of Developer to disapprove any item or exception shown on any such Supplemental Title Report on or before the expiration of such ten (10) Business Day period shall be deemed to be an approval of the matters set forth in such Supplemental Title Report. If Developer designates a Disapproved Exception, Tustin TIC DDA 03.11.25 (14M)(3) FINAL 52 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Developer shall specify in writing its reason for such disapproval, and the City shall have the right, but not the obligation, to (i) remove or cure the Disapproved Exception to the reasonable satisfaction of Developer, or (ii) subject to the last sentence of Section 6.2, elect not to cure such Disapproved Exception. If the City fails to notify Developer of the City's election to remove or cure such Disapproved Exception within ten (10) Business Days after the City's receipt of Developer's notice of disapproval, the City shall be deemed to have elected not to cure such Disapproved Exception. If the City elects or is deemed to have elected not to cure any such Disapproved Exception then Developer's exclusive remedy shall be: (A) to accept such Disapproved Exception and proceed to take title to the Property in the manner set forth in this Agreement and without either deduction or offset to the Purchase Price, and waive such Disapproved Exception without cause of action under this Agreement against the City, or (B) to provide written notice to the City of Developer's election to terminate the Escrow, within five (5) Business Days after the City's election or deemed election, provided that Developer's failure to provide the City within said five (5) Business Days period with written notice of either Developer's acceptance of such Disapproved Exception or Developer's election to terminate shall constitute Developer's election to terminate Escrow. If Developer elects (or is deemed to have elected) to terminate Escrow prior to the Close of Escrow as set forth in this Section 6.3, then a Deposit Return Event shall be deemed to have occurred and the provisions of the third sentence of Section 15.1.3 shall apply. In the event Developer shall not have terminated or been deemed to have terminated this Agreement as set forth in this Section 6.3, then all matters and exclusions or exceptions from title insurance coverage shown in such Supplemental Title Report which Developer shall have accepted pursuant to this Section 6.3 (other than those which the City has agreed to cure as provided in this Section 6.3), together with all Permitted Exceptions described in Section 6.2 shall be deemed "Permitted Exceptions". 6.4 ALTA Policy, Endorsements; Close of Escrow. It shall be a condition precedent to Developer's obligation to close each Escrow that the Title Company issue the ALTA Policy with a policy amount equal to the Purchase Price plus the Project Fair Share Contribution and subject only to the Permitted Exceptions ("Original ALTA Coverage"). The City shall only be obligated to deliver to the Title Company an owner's affidavit regarding title in a form acceptable to the City in its reasonable discretion. Developer shall have the right, at its sole expense, to request and obtain additional ALTA coverage for the value of the development cost of the Market Rate Project and the Affordable Project ("Additional ALTA Coverage") and any title endorsements as Developer deems necessary ("Developer Title Endorsements"); provided that the issuance of such Additional ALTA Coverage and the Developer Title Endorsements shall not delay the applicable Close of Escrow and shall not be a condition precedent to the Close of Escrow. At the Close of Escrow, the City shall pay the City Premium applicable thereto and Developer shall pay all other costs associated with issuance of the Tustin TIC DDA 03.11.25 (14M)(3) FINAL 53 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 ALTA Policy applicable thereto, including costs of the ALTA Policy and Developer Title Endorsements. 6.5 City Title Policy. It shall be a condition precedent to the City's obligation to close Escrow that the Title Company issue the City Title Policy subject only to the Permitted Exceptions and with any title endorsements the City deems necessary and free and clear of all monetary liens, including Construction Liens, other than liens for real property taxes that are not yet delinquent. Developer shall only be obligated to deliver to the Title Company an owner's affidavit regarding title in a form acceptable to Developer in its reasonable discretion. At the Close of Escrow, Developer shall pay the premium for the City Title Policy and for all endorsements deemed necessary by the City. The ALTA Owners Policy issued to the City shall insure the City with respect to its ownership interest in the Public Access Covenant, and all other easements made, and all other insurable interests contained in the applicable Public Access Covenant. 7. Closing. 7.1 Time and Place of Closing. 7.1.1 Close of Escrow. The Close of Escrow shall take place on that date which is twenty (20) Business Days following the last to occur of the satisfaction, or the waiver thereof by the Party for whose benefit the condition applies, of the Developer Closing Conditions set forth in Sections 7.2.1.4 through 7.2.1.8 and Section 7.2.1.10 and the City Closing Conditions set forth in Sections 7.2.2.3 through 7.2.2.13 and Section 7.2.2.15 ("Closing Date"); provided that (i) in no event shall either City or Developer be obligated to close Escrow unless each has received at least five (5) Business Days' advance written notice from the other party of the anticipated date for satisfaction of their respective City Closing Conditions and Developer Closing Conditions, (ii) the Close of Escrow shall in no event be later than the Outside Closing Date set forth in the Schedule of Performance, which date shall be not be subject to extension for Force Majeure Delay but shall be subject to the extensions contemplated by Section 7.1.2 and 7.1.3 ("Outside Closing Date") and (iii) in the event that an allocation of private activity bond cap is made by CDLAC and a tax credit allocation by TCAC is made to the Affordable Project or any phase thereof prior to the Close of Escrow, the City and Developer shall use good faith efforts to advance the satisfaction of any then unsatisfied Closing Conditions in order to allow the Closing Date to take place within a time period that would not result in a failure of clause (ii) of the Allocation Acceptance Conditions set forth in Section 2.2.2 of the Lot 13 PDA; provided that failure of the Close of Escrow to occur prior to such date shall not be a default by either Party under this Agreement. The Close of Escrow shall be subject to the satisfaction (or waiver by the Party benefited by such condition) of all of the conditions set forth in Section 7.2 and shall take place at the offices of Escrow Holder, or at such other place that the City selects. In the event that the Close of Escrow does not occur on or prior to the Outside Closing Date, then, subject to the provisions of Sections 7.1.2 or 7.1.3, this Agreement shall terminate at the end of the Business Day on the Outside Closing Date. 7.1.2 Right to Extend Closing Dates. Notwithstanding any other provision of this Agreement: Tustin TIC DDA 03.11.25 (14M)(3) FINAL 54 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 7.1.2.1 The City shall have the right to extend the Closing Date and the Outside Closing Date one time for a period not more than ninety (90) calendar days at no cost to the City if on or before the Outside Closing Date the City has not formed a new improvement area of the District (to be denominated CFD 18-01 Zone 3 and referred to as "CFD 18-01 Zone 3") with respect to the Real Property and to adopt a rate and method of apportionment for CFD 18-01 Zone 3 ("RMA") and de -annex the Real Property from City of Tustin Community Facilities District No. 13-01 with such formation, annexation and de -annexation Finally Approved. 7.1.2.2 Developer shall have the right to extend the Closing Date and the Outside Closing Date to July 31, 2026 upon provision of written notice to the City and payment to the City of the Additional Purchase Price Deposit in each case, on or before March 31, 2026. 7.1.3 Other Closing Date Extensions By Mutual Agreement. In addition to the extension periods provided to the City pursuant to Section 7.1.2 and the additional extensions contemplated by Article 15, each Closing Date and each Outside Closing Date may be extended upon mutual written agreement of the Parties. 7.2 Conditions Precedent to Close of Escrow. 7.2.1 Developer Closing Conditions. Developer's obligation to purchase the Property and to complete all requirements for the Close of Escrow is subject to and conditioned upon the satisfaction of, or Developer's express written waiver of, each of the following conditions to the Close of Escrow ("Developer Closing Conditions"): 7.2.1.1 Document Deliveries. Not later than two (2) Business Days prior to the Close of Escrow, the City shall have executed and delivered to Escrow Holder the following documents, in each case (where applicable) substantially in the form and substance of the instruments attached as Attachments to this Agreement: (i) if not previously executed and Recorded, the Memorandum of DDA, acknowledged and in Recordable form; (ii) if not previously executed and Recorded, the Development Agreement (and provided it is then effective as a matter of law), acknowledged and in Recordable form; (iii) the Affordable Housing Declaration, acknowledged and in Recordable form; (iv) the Public Access Covenant, acknowledged and in Recordable form; form; (v) the Special Restrictions, acknowledged and in Recordable (vi) the Quitclaim Deed, acknowledged and in Recordable form; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 55 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (vii) the Landscape Installation and Maintenance Agreement in substantially the form and substance of the Landscape Installation and Maintenance Agreement attached as Attachment 21 to this Agreement ("Landscape Installation and Maintenance Agreement"), acknowledged and in Recordable form; (viii) federal FIRPTA Affidavit; (ix) California's Real Estate Withholding Exemption Certificate Form 593-C; (x) a bill of sale and assignment by the City to Developer of Intangible Property substantially in the form and substance of the instrument attached to this Agreement as Attachment 22 ("Bill of Sale"); (xi) a reaffirmation of the City's representations and warranties set forth in Sections 3.3 and 18.12.2 (as the same may be modified pursuant to Section 3.4) in substantially the form and substance of the certificate attached hereto as Attachment 18: (xii) such proof of the City's authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of the City to act for and/or bind the City as may be reasonably required by Title Company and/or Developer (usually in the form of City Council meeting minutes); (xiii) if the TUSD Lien Release does not occur at Close of Escrow pursuant to an election by the City of the TUSD Prepayment Alternative pursuant to Section 8.7.5.3, the TUSD Assignment executed by the City as assignor and acknowledged thereon by TUSD; and (xiv) such other documents or instruments as Escrow Holder may reasonably request to consummate the transaction contemplated in this Agreement. 7.2.1.2 Title Policy. The Title Company shall be in a position to issue the ALTA Policy to Developer for the Property in the amount of the Purchase Price plus the Project Fair Share Contribution and subject only to the Permitted Exceptions. 7.2.1.3 Pre -Existing Obligations; CFD 18-01 Zone 3. Except as approved by Developer in writing or constituting a Permitted Exception, there shall exist no leases, contracts or rights of occupancy or other agreements or contracts with respect to the Property that shall survive the Close of Escrow. The City shall have annexed the Real Property to the District as new CFD 18-01 Zone 3, approved the RMA and de -annexed the Real Property from City of Tustin Community Facilities District No. 13-01 as required by and in accordance with Sections 7.1.2, 7.2.2. 10 and 8.7.3. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 56 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 7.2.1.4 Pre -Closing Entitlements. Developer shall have timely applied for all Pre -Closing Entitlements required for development of the Market Rate Project and the Affordable Project and all such Pre -Closing Entitlements shall have been Finally Approved. 7.2.1.5 Basic Concept Plan. If Developer or Affordable Housing Developer seeks any modification to the previously approved Basic Concept Plan for the Project prior to the Close of Escrow, Developer and Affordable Developer shall have timely applied for and the City shall have approved any modifications to the same in accordance with Sections 8.5.5 and 8.5.6. 7.2.1.6 No Casualty or Condemnation. There shall not have occurred any material casualty or condemnation with respect to the Property and no material condemnation shall be threatened with respect to the Property. 7.2.1.7 No Litigation. No litigation shall be threatened or pending which seeks to prevent the development or operation of the Market Rate Project, the Affordable Project or any part thereof according to the terms of this Agreement and the Other Agreements. 7.2.1.8 TUSD Assignment Agreement. If the City elects in its sole discretion the TUSD Prepayment Alternative, then the City and TUSD shall have entered into the TUSD Lien Release Documentation in form and substance acceptable to the City in its sole discretion provided that the requirements of Section 8.7.5.3 shall have been satisfied. Otherwise, with reference to that certain School Facilities Implementation Funding and Mitigation Agreement between TUSD, Community Facilities District 06-01 of TUSD, the City of Tustin, and Community Facilities District 14-01 of the City of Tustin dated August 25, 2015 (as previously amended) ("TUSD Agreement"), the City (as the assignor) and Developer (as the assignee) shall have entered into, and acknowledged and TUSD shall have acknowledged thereon, an assignment and assumption agreement, in form and substance agreed to by the Parties each in its reasonable discretion pursuant to which the City shall have assigned to Developer and Developer shall have assumed all of the City's rights and obligations under the TUSD Agreement pertaining to the Real Property ("TUSD Assignment"); provided that Developer shall not be obligated to agree to any TUSD Assignment that includes direct financial obligations on its part beyond the payment to TUSD of statutory school fees and the payment of special taxes imposed by the TUSD CFD pursuant to the TUSD Agreement unless otherwise agreed by Developer in its sole discretion. 7.2.1.9 Representations and Warranties. The City's representations and warranties set forth in in Sections 3.3 and 18.12.2 shall be true and correct as of the Close of Escrow, provided, in no event shall the City be liable to Developer for, or be deemed to be in Default under this Agreement by reason of, breach of any such representation or warranty which results from a change that (i) occurs between the Effective Date and the date of the Close of Escrow, and (ii) is expressly permitted under the terms of this Agreement or is beyond the reasonable control of the City to prevent. The occurrence of a change in a representation and warranty shall, if materially adverse to Developer or the Property, as determined by Developer in Developer's reasonable business judgment, constitute the non -fulfillment of the condition set forth in this Section 7.2.1.9, unless such matter is cured at least one (1) Business Day prior to the Close Tustin TIC DDA 03.11.25 (14M)(3) FINAL 57 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 of Escrow. If, despite changes or other matters described in the City's reaffirmation certificate, the Close of Escrow occurs, the City's representations and warranties set forth in Sections 3.3 and 18.12.2 shall be deemed to have been modified by all statements made in such certificate. 7.2.1.10 Default. The City shall not be in Default of any covenant or agreement to be performed by the City under this Agreement. 7.2.2 City Closing Conditions. The City's obligation to deliver the Quitclaim Deed and to complete all requirements for the Close of Escrow is subject to and conditioned upon the satisfaction of, or the City's express written waiver of, each of the following conditions to the Close of Escrow ("City Closing Conditions") on or before the Closing Date: 7.2.2.1 Closing Pam. Not later than one (1) Business Day prior to the Close of Escrow, Developer shall deliver to Escrow (i) the Developer Closing Payment and (ii) any other costs explicitly set forth in this Agreement as costs to be paid by Developer at the Close of Escrow, including the City Costs Deposit amounts described in Section 1.8.3 and the master marketing program fee described in Section 8.7.4. 7.2.2.2 Document Deliveries. Not later than two (2) Business Days prior to the Close of Escrow, Developer shall have executed and delivered to Escrow Holder the following documents, in each case (where applicable) substantially in the form and substance of the instruments attached as Attachments to this Agreement: (i) if not previously executed and Recorded, the Memorandum of DDA, each acknowledged and in Recordable form; (ii) if not previously executed and Recorded, the Development Agreement (and provided it is then effective as a matter of law), acknowledged and in Recordable form; (iii) a consent and agreement to the terms of the Affordable Housing Declaration, in form attached to such Declaration, acknowledged and in Recordable form; (iv) a consent and agreement to the terms of the Public Access Covenant, in form attached to such Covenant, acknowledged and in Recordable form; (v) a consent and agreement to the terms of the Special Restrictions, in form attached to such Special Restrictions, acknowledged and in Recordable form; (vi) a consent and agreement to the terms of the Quitclaim Deed, acknowledged and in Recordable form; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 58 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (vii) the Landscape Installation and Maintenance Agreement, acknowledged and in Recordable form; (viii) a Bill of Sale; (ix) a Guaranty executed by the chief financial officer or other appropriate authorized officer of Guarantor; (x) a Guarantor Original Certificate; (xi) a Guaranty Legal Opinion; (xii) a certificate dated as of the Closing Date dating down the Developer Original Certificate or Transferee Certificate, if one was previously provided, a Developer Date Down and Reaffirmation Certificate with such certificate certified for the benefit of the City by the chief financial officer or other appropriate authorized officer of Developer; (xiii) if Developer is utilizing an Equity Investor that has previously delivered an Equity Investor Original Certificate, an Equity Investor Date Down Certificate, otherwise, an Equity Investor Original Certificate by an Approved Equity Investor (approved by the City pursuant to Section 8.10), in either case certified by the chief financial officer or other appropriate authorized officer of the Approved Equity Investor, and, if not previously delivered, Evidence of Equity and/or Equity Commitment, in each case dated as of the Closing Date; (xiv) such proof of Developer's authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Developer to act for and/or bind Developer as may be reasonably required by Title Company and/or the City; and (xv) Endorsements and certificates of insurance of the PLL Policy required by Section 11.1.4 pursuant to the requirements of Section 11.2.3; (xvi) if the TUSD Lien Release does not occur at Close of Escrow pursuant to an election by the City of the TUSD Prepayment Alternative pursuant to Section 8.7.5.3, the TUSD Assignment executed by Developer as assignee and acknowledged thereon by TUSD; and (xvii) such other documents or instruments as Escrow Holder may reasonably request to consummate the transaction contemplated in this Agreement. 7.2.2.3 Pre -Closing Entitlements. Developer shall have timely applied for all Pre -Closing Entitlements required for development of the Market Rate Project and Tustin TIC DDA 03.11.25 (14M)(3) FINAL 59 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 the Affordable Project and all such Pre -Closing Entitlements shall have been Finally Approved and to the extent that Developer has applied for any amendment to the Pre -Closing Entitlements, the same shall have been Finally Approved. 7.2.2.4 Basic Concept Plan. If Developer seeks any modification to the previously approved Basic Concept Plan, Developer shall have timely applied for and the City shall have approved any modifications to the same in accordance with Sections 8.5.5 and 8.5.6. 7.2.2.5 Horizontal Improvements. The City shall be prepared to issue: (i) the grading permit for the Grading Work on the Market Rate Real Property and the Lot 13 Real Property; and (ii) permits (other than landscaping permits) for all of the Market Rate Project Horizontal Improvements required for development of the Market Rate Real Property. 7.2.2.6 Bonds to Secure Certain Construction Work. Developer shall have provided to the City those labor and material bonds and payment bonds in favor of the City as obligee securing Developer's obligations to perform and construct the Grading Work and for necessary encroachments into City -owned property, if any. 7.2.2.7 Building Permits. The City shall be prepared to issue parking structure permits for the first Building in which a parking structure will be constructed on the Market Rate Real Property which issuance shall only be conditioned upon payment of fees required as a precondition to issuance and Developer shall have submitted for plan check the final plans and specifications for the remaining Buildings to be constructed on the Market Rate Real Property and shall have submitted or caused Affordable Housing Developer to submit for plan check the final plans and specifications for the Buildings to be constructed on the Lot 13 Real Property. 7.2.2.8 Insurance. Developer shall have provided to the City evidence of insurance as and to the extent required by Article 11. 7.2.2.9 Financial Capability; Guaranty. Developer shall have satisfied the conditions precedent to the Close of Escrow set forth in Section 4.6.1.2 through 4.6.1.4 and Sections 4.6.2.2, 4.6.2.3 and 8.9.1, and, if applicable Sections 8.9.2 and 8.10. 7.2.2.10 Formation of Improvement Area, Adoption of RMA and Annexation of Property into District. The City shall have formed the new CFD 18-01 Zone 3, approved the RMA and caused the Property to be annexed into the District and de -annexed the Real Property from City of Tustin Community Facilities District No. 13-01 in accordance with Section 8.7.3, and such formation, annexation, adoption and de -annexation shall each be Finally Approved. 7.2.2.11 City Title Policy. The Title Company shall be in a position to issue the City Title Policy to the City subject only to the Permitted Exceptions and without exception for liens, including Construction Liens. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 60 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 7.2.2.12 Developer shall have satisfied the conditions precedent to the Close of Escrow set forth in Sections 4.6.1 and 4.6.2. 7.2.2.13 TUSD Assignment. If the City elects in its sole discretion the TUSD Prepayment Alternative, then the City and TUSD shall have entered into the TUSD Lien Release Documentation in form and substance acceptable to the City in its sole discretion provided that the requirements of Section 8.7.5.3 shall have been satisfied. Otherwise, the City and Developer shall have entered into, and TUSD shall have acknowledged thereon, the TUSD Assignment. 7.2.2.14 Representations and Warranties. Developer's representations and warranties set forth in Sections 3.1 and 18.12.1 shall be true and correct as of the Close of Escrow (or in the case where any Transfer occurs prior to the Close of Escrow, the representations and warranties made by the Transferee in an Assignment Agreement, as applicable), shall be true and correct as of the Close of Escrow, provided, in no event shall Developer be liable to the City for, or be deemed to be in Default under this Agreement by reason of, breach of any such representation or warranty which results from a change that (i) occurs between the Effective Date and the date of the Close of Escrow, and (ii) is expressly permitted under the terms of this Agreement or is beyond the reasonable control of Developer to prevent. The occurrence of a change in a representation and warranty shall, if materially adverse to City, as determined by the City in City's reasonable business judgment, constitute the non -fulfillment of the condition set forth in this Section 7.2.2.14, unless such matter is cured at least one (1) Business Day prior to the Close of Escrow. If, despite changes or other matters described in Developer's reaffirmation certificate, the Close of Escrow occurs, Developer's representations and warranties set forth in Sections 3.1 and 18.12.1 (or in the case where a Transfer occurs prior to the Close of Escrow, the representations and warranties made by the Transferee in the Assignment Agreement) shall be deemed to have been modified by all statements made in such certificate. 7.2.2.15 Default. Developer shall not be in Default of any covenant or agreement to be performed by Developer under this Agreement. 7.3 Additional Close of Escrow Conditions. In addition to the provisions of Section 7.2, the Close of Escrow shall be conditioned upon the following Closing Conditions, which shall be for the benefit of each Parry: (i) Escrow Holder shall have delivered at least seven (7) Business Days prior to the Close of Escrow a statement of costs to each Party and at least two (2) Business Days prior to the Close of Escrow each of the Parties shall have approved such statement as being consistent with the provisions of Section 7.4 and (ii) each Parry shall confirm in writing to Escrow Holder that all Closing Conditions for its benefit have been satisfied or waived. 7.4 Procedures for Conveyance. 7.4.1 Costs and Expenses. The costs and expenses of the Close of Escrow shall be allocated as follows: Tustin TIC DDA 03.11.25 (14M)(3) FINAL 61 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 7.4.1.1 City's Costs. The City shall pay (i) the City Premium; (ii) one-half (1/2) of all Escrow fees and costs; (iii) all documentary transfer taxes, if any; and (iv) the City's share of prorations, if any. 7.4.1.2 Developer's Costs. Developer shall pay (i) the entire cost of the applicable ALTA Policy, along with the cost of any other title insurance coverage, in excess of the City Premium and all other costs associated with issuance of the ALTA Policy, Developer Title Endorsements and the cost of the City Title Policy; (ii) the entire cost of the Survey and any additional land surveys obtained by Developer in connection with the foregoing; (iii) document recording charges for the documents to be Recorded per Section 7.4.6(ii); (iv) one-half (1/2) of all Escrow fees and costs; (v) Developer's share of prorations and (vi) the cost of any outstanding DDA Transaction Expenses as described in Section 1.8.3. Developer shall pay the fees of all consultants and employees (including legal fees and fees of environmental, engineering and land use consultants) engaged by it. 7.4.1.3 Other Costs. All costs and expenses related to the Close of Escrow and the transfer of the Property to Developer not otherwise allocated in this Agreement shall be allocated between the Parties in accordance with the customary practice in Orange County, California. 7.4.2 Possession. The City shall deliver exclusive possession of the Property at the Close of Escrow subject to any Permitted Exceptions and to any other matters disclosed on the ALTA Policy. 7.4.3 Deliveries to Developer Upon Close of Escrow. The City agrees to deliver to Developer, on or prior to the Close of Escrow, outside of Escrow, the following items with respect to the Property: 7.4.3.1 Records and Plans. To the extent in the City's possession, originals or copies of records and plans that will affect the Property after the Close of Escrow. 7.4.3.2 Licenses and Permits. To the extent in the City's possession, originals or copies of all licenses and permits affecting the Property. 7.4.4 Prorations. 7.4.4.1 General. Rentals, revenues and other income, if any, from the Property conveyed shall be prorated on a cash basis as of 11:59 P.M. Pacific Time on the day preceding the Close of Escrow. Tax payments shall be prorated in accordance with Section 7.4.4.2. 7.4.4.2 Taxes. Developer shall be responsible for all taxes, assessments, fees and charges imposed by any Governmental Authority with respect to the Property and all existing and future improvements thereon accruing from and after the Close of Escrow. If, after the Close of Escrow, any real estate taxes or possessory interest taxes are assessed against any portion of the Real Property pertaining to the period prior to the Close of Escrow, the City agrees to contact the applicable taxing authority and seek recognition and enforcement of its Tustin TIC DDA 03.11.25 (14M)(3) FINAL 62 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 tax exemption. 7.4.5 Method of Proration. All prorations shall be made in accordance with customary practice in Orange County, except as otherwise expressly provided in this Agreement. Developer and the City agree to cause a schedule of prorations to be prepared prior to the Close of Escrow. Such prorations, if and to the extent known and agreed upon as of the Close of Escrow, shall be paid by Developer to the City (if the prorations result in a net credit to the City) or by the City to Developer (if the prorations result in a net credit to Developer) by increasing or reducing the cash to be paid by Developer at the Close of Escrow. Any such prorations not determined or not agreed upon as of the Close of Escrow shall be paid by Developer to the City, or by the City to Developer, as the case may be, in cash as soon as practicable following the Close of Escrow, but in no event later than sixty (60) calendar days after the Close of Escrow. A copy of the schedule of prorations as agreed upon by Developer and the City shall be delivered to Escrow Holder at least three (3) Business Days prior to the Close of Escrow. All prorations provided for in Section 7.4.4 and this Section 7.4.5 shall be on an "actual day" basis and a three hundred sixty-five (365) day year. 7.4.6 Disbursements and Other Actions by Escrow Holder. At the Close of Escrow, and subject to the satisfaction or waiver by the benefited party of the conditions to the Close of Escrow described in Section 7.2, Escrow Holder shall promptly undertake all of the following in the manner indicated below: (i) Funds. Debit or credit all matters addressed in Section 7.4.1 and prorate all matters addressed in Section 7.4.4 and disburse to the City the Purchase Price (as adjusted by the foregoing debits, credits and prorations) and the Project Fair Share Contribution. (ii) Recording. At the Close of Escrow, cause the following instruments to be Recorded against the Real Property in the following order: (1) if not previously Recorded, the Memorandum of DDA and the Development Agreement, and (2) the Affordable Housing Declaration, (3) the Special Restrictions, (4) the Quitclaim Deed, (5) the Public Access Covenant, and (6) the Landscape Installation and Maintenance Agreement, and thereafter, such other documents that Developer and the City may mutually direct, or that may be required by the terms of this Agreement to be Recorded, obtain conformed copies thereof and distribute same to Developer and the City. (iii) Title Policies. At the Close of Escrow direct the Title Company to issue (A) the ALTA Policy to Developer in the amount set forth in Section 6.4 and subject only to the applicable Permitted Exceptions and (B) to the City an ALTA owner's extended coverage policy to the City in the amount of One Million Dollars ($1,000,000.00) insuring the City's interest in the Public Access Covenant and easement established by the Landscape Installation and Maintenance Agreement ("City Title Policy") and subject only to the applicable Permitted Exceptions. Concurrently with the issuance of the ALTA Policy, the Title Company Tustin TIC DDA 03.11.25 (14M)(3) FINAL 63 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 shall provide the Developer Title Endorsements, provided that the issuance of such Developer Title Endorsements shall not be a condition to the Close of Escrow, except for those endorsements that the City agreed to obtain in order to cure any disapproved title exceptions or survey matters. Concurrently with the issuance of the City Title Policy, the Title Company shall provide to the City the endorsements requested by the City. (iv) Delivery of Documents to Developer and City. Deliver to each Party original counterparts (and conformed copies, if applicable) of the Development Agreement (if not previously Recorded), the Memorandum of DDA (if not previously Recorded), the Affordable Housing Declaration and the applicable Quitclaim Deed, Special Restrictions, Landscape Installation and Maintenance Agreement, Bill of Sale, the FIRPTA Affidavit, the California Form 593-W, and any other documents (or copies thereof) deposited into Escrow by Developer or the City at the applicable Close of Escrow pursuant hereto, and deliver to the Parties a certified copy of their respective Escrow closing statements. (v) Other Actions. Take such other actions as the Parties direct pursuant to mutually executed supplemental Escrow instructions. 7.4.7 Notice. All communications from the Escrow Holder shall be directed to the addresses and in the manner established in Section 18.6 for notices, demands and communications between the Parties. 8. Development of the Property and Additional Covenants of Developer and City. 8.1 Scope of Development. 8.1.1 Requirement to Develop the Market Rate Project and the Affordable Project. The Scope of Development attached to this Agreement as Attachment 8 sets forth the overall conceptual plan for the Market Rate Project and the Affordable Project and development of the Real Property, including design, development, and construction of the Market Rate Project Improvements and the Affordable Project Improvements as may be required by the Entitlements and Development Permits. The Market Rate Project and the Affordable Project shall each be designed and constructed to Completion in a manner consistent with the Site Plan and Phasing Plan and in compliance with the Scope of Development, the Approved Plans, the Design Guidelines, the Entitlements and Entitlements conditions, Development Permits and any other Governmental Requirements as well as all requirements of private utility purveyors. 8.1.2 Control of Site Development. Developer shall have control over the design and layout of the Market Rate Project Improvements and the Affordable Project Improvements (including height, shape and location of the Vertical Improvements and special landscaping and art features) and over the special uses to be incorporated therein, subject to (i) the Approved Plans, the Design Guidelines, Development Permits, Entitlements and Governmental Requirements including any conditional use permit necessitated by particular proposed uses or design features and (ii) the design approval provisions set forth in Sections 8.5.3, 8.5.5 and 8.5.6 Tustin TIC DDA 03.11.25 (14M)(3) FINAL 64 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 for the benefit of the City, which are undertaken by the City in its Proprietary Capacity. 8.1.3 Compliance with Governmental Requirements and Other Requirements. Developer shall develop the Real Property with the Market Rate Project, and, subject to its right to delegate such construction pursuant to the Lot 13 PDA and the Approved Ground Lease, the Affordable Project in the manner described in and consistent with the Scope of Development, the Site Plan, and the Phasing Plan and in accordance with the Schedule of Performance, the Approved Plans and all Governmental Requirements, including the Specific Plan, the Entitlements, the Development Permits, the Memorandum of Agreement and the Federal Deed. 8.2 Development Costs. Within the time set forth in the Schedule of Performance, Developer shall design and construct the Market Rate Project at Developer's sole cost and expense and without public subsidy of any kind, unless otherwise agreed in writing by the City in its sole discretion and shall cause Affordable Housing Developer to design and construct the Affordable Project upon Lot 13 subject to the financing authorized by this Agreement and the terms of the Lot 13 PDA and Approved Ground Lease. Nothing in this Agreement or in any Other Agreement shall in any way limit the ability of the Affordable Housing Developer from applying for and/or obtaining a property tax abatement for the Affordable Project and/or Lot 13. Without limiting the generality of the foregoing, Developer hereby agrees that the following costs and expenses (collectively "Development Costs") incurred by Developer during the Term and until the Recording by the City of the Final Certificate of Compliance, shall be the responsibility of Developer and Affordable Housing Developer, as applicable, without any cost or liability to the City: (i) all costs and expenses to perform and satisfy all the covenants of Developer with respect to the Real Property contained in this Agreement and the Other Agreements; (ii) all costs and expenses associated with planning, designing, developing and constructing the Market Rate Project and the Affordable Project, as applicable, preparing the Real Property and constructing all Market Rate Project Improvements and Affordable Project Improvements (whether on -site or off -site) required in connection with the Market Rate Project and the Affordable Project, as applicable, including all hard costs, soft costs, the cost of services, fees, exactions, dedications, cost overruns, profit, overhead, Entitlements costs (including costs to perform conditions of approval and mitigation measures thereunder), warranties, consultants' fees, legal fees; (iii) all costs and expenses of marketing and rental of Residential Units as further described in the Scope of Development, including marketing fees, sales incentives, insurance, overhead, and brokerage fees incurred in the rental of Residential Units; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 65 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (iv) all costs and expenses costs and expenses necessary to obtain the Entitlements and Development Permits and to comply with the other obligations of Developer under this Agreement required to be satisfied prior to the Close of Escrow; (v) subject to Sections 7.4.1, 7.4.4 and 18.12.1. all costs and expenses associated with acquisition of the Property, payment of the applicable Purchase Price and brokerage fees incurred in the acquisition of the Property and, if applicable, sale of the Property, the Market Rate Project and the Affordable Project, by Developer and Affordable Housing Developer as applicable; (vi) all costs and expenses comprising DDA Transaction Expenses of the City; (vii) all wages and benefits required to be paid to any person employed by Developer, and by persons employed by the Developer Representatives; (viii) the costs of the Project Fair Share Contribution; and (ix) the CFD 18-01 Zone 3 Special Tax (it being acknowledged and agreed by Developer that the CFD 18-01 Zone 3 Special Tax shall be perpetual and shall be the obligation of the Owner of each Parcel following the issuance of a Certificate of Compliance therefor). 8.3 Schedule of Performance; Completion of Project. The Schedule of Performance sets forth the schedule for closings under this Agreement and for submissions, approvals and actions related to design and development of the Market Rate Project and the Affordable Project and construction and Completion of the Market Rate Project Improvements and the Affordable Project Improvements during the Term. Following the Effective Date, Developer shall promptly begin and thereafter diligently prosecute to Completion the construction of the Market Rate Project Improvements and after the Affordable Project Closing, and within the time period provided by the Schedule of Performance, shall cause Affordable Housing Developer to begin and thereafter diligently prosecute to Completion the construction of the Affordable Project Improvements. Where time periods for performance are specified in the Schedule of Performance or in this Agreement, Developer shall and shall cause Affordable Housing Developer to perform such matters no later than the time specified in the Schedule of Performance or in this Agreement, as applicable, provided that the dates set forth in the Schedule of Performance and this Agreement may be extended by Force Majeure Delay in accordance with Section 18.7, subject to the limitations set forth in Section 18.7.6 or may be otherwise extended by the City in accordance with Section 18.3. To be effective, any extensions pursuant to this Section or Section 18.3 shall be requested in writing by Developer and approved by and evidenced by written notice from the City Manager or designee and any requested Force Majeure Delay extension shall be requested pursuant to Section 18.7. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 66 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 8.4 Land Use Matters. 8.4.1 CEQA Requirements. The Parties acknowledge and agree that CEQA is applicable to discretionary actions associated with the development of the Market Rate Project and the Affordable Project. Developer acknowledges that the City shall prepare any supplemental environmental information, if any, as may need to be completed in order to effect compliance with CEQA, as determined by the City in its sole discretion, and Developer shall be responsible to pay all costs incurred by the City to prepare or to cause to its consultants to prepare such environmental documents and shall enter into such agreements to pay such costs as the City shall require. Developer agrees to cooperate with the City in obtaining information to determine the environmental impact of the Market Rate Project and the Affordable Project, if any. 8.4.2 Required Entitlements. Developer shall, at its sole cost and expense, process, obtain, and maintain all Entitlements to assure that the design, construction, use, operation, maintenance, repair and replacement of the Market Rate Project Improvements and the Affordable Project Improvements is carried out in accordance with the provisions of this Agreement, and is permitted by the Entitlements and all other Governmental Requirements. Development of the Market Rate Project and the Affordable Project shall be subject to the following Entitlements review processes of the City: (i) Design Review approval (Design Review application 2024-0013); (ii) Vesting Tentative Tract Map approval (Subdivision Application 2024- 0004); (iii) Development Agreement approval (DA 2024-0003) and (iv) the density bonus application, density bonus exception and related concessions and incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with Govt. Code Section 54220-54234 and 65915, and any other approvals to the extent required by the City Code to permit the uses contemplated in the Site Plan or Approved Plans. Without limiting the foregoing, in developing and constructing the Market Rate Project and the Affordable Project, Developer shall ensure that the Market Rate Project and the Affordable Project each comply with all applicable development standards in the Specific Plan, the City Code and with all building codes, landscaping, signage and parking requirements, except as may be permitted through variances and modifications or the Development Agreement. 8.4.3 Development Permits. Developer, at its sole cost and expense shall process, obtain, and maintain all Development Permits required for the construction, use, operation, maintenance, repair and replacement of the Market Rate Project Improvements and the Affordable Project Improvements. 8.4.4 Agreement Does Not Grant Entitlements. Nothing in this Agreement shall be construed or interpreted as committing the City to approve or undertake any action or review process or activities that require the independent exercise of discretion by the City in its Governmental Capacity, including any approval of any of the Entitlements or Development Permits for which Developer applies whether prior to or following the Effective Date. This Agreement does not (i) grant any land use entitlement or approval to Developer, (ii) supersede, nullify or amend any condition which may be imposed by the City in its Governmental Capacity in connection with approval of the Market Rate Project and the Affordable Project, (iii) guarantee to Developer or any other party any profits from the development of the Property, or (iv) amend Tustin TIC DDA 03.11.25 (14M)(3) FINAL 67 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 any Governmental Requirements of the City. The issuance or approval of any of the Entitlements or any Development Permit described in this Agreement shall be done by the City in its Governmental Capacity and the failure of the City to issue or approve any such matters shall not be a Default. Nothing contained in this Agreement shall be deemed to waive the right of the City to act in its Governmental Capacity with respect to the consideration and approval of the Entitlements, Development Permits and all other permits, licenses and approvals requested by Developer from time to time in connection with the Market Rate Project or the Affordable Project nor shall it entitle Developer to any of the Entitlements, Development Permits or other City approvals necessary for the development of the Market Rate Project or the Affordable Project, or to the waiver of any applicable City requirements relating thereto, and the failure of the City to issue or approve any of the Entitlements described in this Agreement, including to certify or approve any CEQA document, to approve any tentative (or vesting tentative) tract map, design review, conditional use permit or other entitlements or approvals, including the Entitlements or Development Permits, shall not be a Default of the City under this Agreement. 8.4.5 Cooperation of City. Consistent with this Agreement, the City agrees, without cost or other liability to the City or any commitment of the City to approve or conditionally approve any Entitlements required for the full implementation of the Market Rate Project, the Affordable Project or this Agreement, to assist and cooperate with Developer in its efforts to process the Entitlements and Development Permits. The City will use good faith efforts to expedite review of applications for the Entitlements and the Development Permits that are to be issued by the City and other submissions made by Developer where reasonably appropriate in order that Developer is able to meet the deadlines set forth in the Schedule of Performance and will assist and cooperate with Developer in its efforts to process such Development Permits, Entitlements and other submissions. At no cost to the City, the City shall also assist and cooperate with Developer to obtain from other Persons (including IRWD, Environmental Agencies and the City of Irvine) any licenses or entry permits necessary or reasonably desirable in connection with development of the Improvements. 8.4.6 Entitlements Conditions. Developer acknowledges and agrees that the City in its Governmental Capacity may require satisfaction of certain conditions and dedication of certain property in connection with approval of any Entitlements. 8.4.7 Payment of Processing Fees. The DA provides for payment by Developer of City Processing Fees and Plan Check and Inspection Fees (as each is defined in the Development Agreement). If the DA shall terminate during the Term of this Agreement, then Developer shall, commencing upon termination of the DA, pay to the City pursuant to this Agreement all charges imposed by the City under the then -current regulations for processing applications and requests for permits and entitlement approvals, including (i) all fees, costs and deposits normally charged by the City or other Governmental Authority in connection with application for and review and approval of Entitlements and Development Permits, (ii) any fees or costs incurred by the City or any other Governmental Authority in complying with CEQA or the CEQA implementing regulations; (iii) any costs to review or approve any of the Entitlements or Development Permits applications or submittals by Developer to the City or any other Governmental Authority in connection with the Market Rate Project and the Affordable Project, Tustin TIC DDA 03.11.25 (14M)(3) FINAL 68 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 provided that in no event shall Developer be obligated to pay again any fee previously paid pursuant to the DA. 8.5 Design Approval. 8.5.1 Design Review. It is understood and agreed to by Developer that the quality, character and uses proposed for the Market Rate Project and the Affordable Project are of particular importance to the City. In furtherance of the development of the Market Rate Project and the Affordable Project and the foregoing, Design Review approval is required as part of the Entitlements. In addition, the City will require review and approval of any modifications to the Basic Concept Plan for the Market Rate Project and the Affordable Project and the Landscape Improvements upon the Landscape Areas as further set forth in this Section 8.5. 8.5.2 Plan Development and Cost. All plans and specifications for the Market Rate Project and the Affordable Project shall be prepared by Developer at Developer's sole cost and expense and subject to the requirements set forth in this Article 8. The foregoing sentence shall not prohibit Developer from delegating such responsibility to Affordable Housing Developer pursuant to the Lot 13 PDA but shall not relieve Developer from the obligation to prepare such plans and specifications. 8.5.3 Process for Governmental Review. The Parties acknowledge that the City shall have the right to review all plans, specifications and submissions, including any changes therein, through its normal plan review and Entitlements process and that the City may exercise its governmental discretion in review of any of the plans, specifications and submissions. Developer has previously submitted to the City, and the City has previously reviewed and approved, the Entitlements in its Governmental Capacity. Within the timeframe shown in the Schedule of Performance (or prior to Affordable Project Closing if the same are required to be submitted prior thereto to satisfy a City Closing Condition or Lot 13 Transfer Condition), Developer shall, and shall cause Affordable Housing Developer to, submit for approval by the City in its Governmental Capacity, final construction design drawings and related documents conforming to the requirements of the City Code, the Specific Plan and all other Entitlements and conditions of approval and mitigation measures within the time period set forth in the Schedule of Performance. The Community Development Department is authorized pursuant to City Code to approve minor changes to building plans after approval by the City provided such changes do not significantly reduce the character of the development concept or the design and materials to be used in enhancing the architecture and aesthetics of the Market Rate Project Improvements and the Affordable Project Improvements. Nothing in this Agreement shall relieve Developer from the obligation to submit modified final design drawings and related documents conforming to the requirements of the City Code, the Specific Plan and all other Entitlements for further review and approval by the City, if any modification to the previously approved plan or Entitlements is required. 8.5.4 Coordination. Developer and the architect for the Market Rate Project and the architect for the Affordable Project, as applicable, shall meet with representatives of the City to review and come to a clear understanding of the applicable planning and design criteria Tustin TIC DDA 03.11.25 (14M)(3) FINAL 69 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 required by the City. During the preparation of all plans and specifications for the Market Rate Project and the Affordable Project, staff of the City and Developer shall hold regular progress meetings to coordinate the preparation, submission and review of such plans. The staff of the City and Developer shall communicate and consult as frequently as necessary to facilitate prompt and speedy consideration of Developer's submittals. 8.5.5 Real Property Division Review. Review of any modifications to the previously approved Basic Concept Plan for the Market Rate Project and the Affordable Project shall also be carried out by the City's Real Property Division as further described in this Section and Section 8.5.6. Prior to the Effective Date, Developer has caused the Basic Concept Plan to be prepared and submitted to the City for approval and the City has previously reviewed and approved the Basic Concept Plan. Developer acknowledges and agrees that the City's Community Development Department is responsible for reviewing the working drawings and issuing recommendations with respect to the appropriate Entitlements. In addition to its submittal of same to the Community Development Department, Developer shall submit any modifications to the previously approved Basic Concept Plan to the Deputy City Manager — Real Property for its approval in accordance with this Section and Section 8.5.6. The exercise by the Deputy City Manager — Real Property of the right to inspect or review the concept plans, drawings and related documents for development of the Market Rate Project and the Affordable Project are actions in the Proprietary Capacity of the City and: (i) shall not constitute an approval by the City of any Entitlements; (ii) shall not constitute a determination by the City of the engineering or structural design, sufficiency or integrity of the improvements contemplated by such plans, drawings and related documents, and (iii) shall not constitute a determination by the City of the compliance of such plans, drawings and related documents with any applicable building codes, safety features and standards. Any inspection or approval of plans and drawings made or granted pursuant to this Agreement shall not constitute an inspection or approval of the quality, adequacy or suitability of such plans, specifications or drawings, nor of the labor, materials, services or equipment to be furnished or supplied in connection therewith. The Parties acknowledge and agree that the City's approval in its Proprietary Capacity of modifications to the Basic Concept Plan shall be carried out only in accordance with the provisions of this Section 8.5. Developer shall not be entitled to damages or compensation as a result of the City's disapproval, conditional approval, or failure to approve or disapprove any modification to the Basic Concept Plan in accordance with the provisions of this Section 8.5. Field modifications are not subject to review by the Deputy City Manager — Real Property. 8.5.6 Process for Real Property Division Review. If Developer desires to modify the previously approved Basic Concept Plan, Developer shall submit to the City two sets of the modifications to the Basic Concept Plan for the proposed revised Improvements with proposed revisions marked for review and approval by the City (and in such case the City's review period shall be fifteen (15) Business Days after City's receipt of the requested modification). Sets of the Basic Concept Plan shall be submitted in writing over the signature of Developer or a representative duly authorized by Developer in writing. Approval by the Deputy City Manager — Real Property shall not be unreasonably withheld, conditioned or delayed if such modifications are Minor Modifications but shall be in the sole discretion of the Deputy City Manager — Real Property if he or she determines they are Major Modifications. If approved, the Deputy City Tustin TIC DDA 03.11.25 (14M)(3) FINAL 70 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Manager —Real Property or designee shall endorse its approval on one set of such modified Basic Concept Plan and return it to Developer. Subject to the preceding provisions of this Section 8.5.6, Developer shall make changes in response to the City's notice of disapproval and resubmit such Basic Concept Plan to the City for review and approval in accordance with the provisions of this Section 8.5.6 (and in such case the City's review period shall be ten (10) Business Days). Provided the documents are submitted substantially concurrently to the Real Property Department and the Community Development Department, such reviews shall take place substantially concurrently. 8.5.7 Approved Plans. Upon approval by the City of each of the matters described in the definition of Approved Plans, the Approved Plans shall govern development of the Market Rate Project Improvements and the Affordable Project Improvements. In addition to any other rights to approve or disapprove the construction level drawings in its Governmental Capacity, the City may, in its Proprietary Capacity and without limiting the rights of the City in its Governmental Capacity, disapprove any construction level drawings that represent Major Modifications to the Entitlements or previously approved Basic Concept Plan. Developer shall not construct any Market Rate Project Improvements or Affordable Project Improvements on the Real Property unless the same are shown in the Approved Plans or unless the prior written consent of the City is obtained to any modification thereof. To the extent of any inconsistencies between the plans identified in the Scope of Development or the Site Plan and the Approved Plans, the Approved Plans shall govern and control as to the development of the Real Property. 8.6 Financial Capability and Budtet Statement. 8.6.1 Financial Capability. Developer understands and agrees that following the Close of Escrow, the City reserves the right to request in writing from Developer and Affordable Housing Developer reasonable additional financial information which shall be comprised of current audited financial statements to the extent then available without any additional cost to Developer or Affordable Housing Developer and current Certified Financial Statements, including information, data and commitments, to ascertain the depth of the financial capability of Developer, Affordable Housing Developer, or other equity participants, to meet the financial obligations required by this Agreement. After the Close of Escrow, and thereafter until issuance of the Final Certificate of Compliance, Developer shall maintain adequate financial capacity to perform its obligations under this Agreement and the Other Agreements, and following each Lot 13 Transfer, shall maintain or shall cause Affordable Housing Developer to maintain with respect to the Affordable Project, adequate financial capacity to perform under the Lot 13 PDA and Approved Ground Lease. If the Equity Investor is The Irvine Company or TICAD, then no additional financial information or evidence of financial capacity is required from Developer or the Equity Investor, so long as The Irvine Company or TICAD continues to satisfy the Minimum Asset Standards pursuant to Section 4.6.2.3. In addition: 8.6.1.1 Until such time as financing for the Affordable Project is secured, Developer shall cause Affordable Housing Developer to provide a written report annually to Developer and the City, on a date certain set forth in the Lot 13 PDA, disclosing the financing that Affordable Housing Developer sought during the preceding year and the outcome of such applications, together with information concerning the financing Affordable Housing Developer Tustin TIC DDA 03.11.25 (14M)(3) FINAL 71 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 will seek in the upcoming year and a schedule for the required applications associated with those financing sources. 8.6.1.2 If the City is not reasonably satisfied with any written report or proposed Updated Affordable Project Financing Plan, the City shall be entitled to obtain further information from Developer with respect to the Affordable Housing Developer and its financial condition (excluding audited financial statements except to the extent then available without any additional cost to Developer or the Affordable Housing Developer) as may be necessary to establish that the financial resource available to the Affordable Housing Developer are sufficient to satisfy the requirements of the proposed Updated Affordable Project Financing Plan. 8.6.2 Budget Statement. From the Close of Escrow until Recording by the City of the Final Certificate of Compliance, if requested by the City, Developer shall with respect to the Market Rate Project and following any Lot 13 Transfer, shall cause Affordable Housing Developer with respect to the Affordable Project, to provide a Budget Statement in the format required by the applicable Financing Plan. The Budget Statement shall be delivered to the City by Developer within thirty (30) calendar days following the later of receipt by Developer of the City's written request therefor and the expiration of the applicable quarter; provided that the City shall make such request no more than once annually. Notwithstanding the foregoing, the delivery of such Budget Statement shall be for informational purposes only and in no event shall the City be entitled to declare a Potential Default or Material Default, or exercise any of its remedies pursuant to this Agreement, based on the contents of such Budget Statement absent an actual Potential Default or Material Default under one of the other covenants or obligations of Developer or Affordable Housing Developer set forth in this Agreement. In addition, prior to the Lot 13 Transfer, no later than thirty (30) calendar days following the end of each funding cycle in which Affordable Housing Developer participates to seek funding or tax credits for the Affordable Project, Developer shall cause Affordable Housing Developer to provide a written report to the City regarding the outcome of its application for the prior funding cycle and the financing it intends to apply for in the next funding cycle. All Budget Statements submitted in response to request by the City shall be subject to the confidentiality provisions set forth in Sections 4.6.1, 4.7.3.3 and 18.24. 8.7 District Fees and Other Fees and Exactions. 8.7.1 Developer Acknowledgements. Developer acknowledges and agrees that: (i) the development of the Market Rate Project and the Affordable Project, together with the development of the remainder of Tustin Legacy, will contribute to the need for Tustin Legacy backbone infrastructure located off of the Development Parcels, including Tustin Legacy roadway improvements; traffic and circulation mitigation to support the Tustin Legacy project; domestic and reclaimed water; sewer; telemetry; storm drains and flood control channels; utilities backbone (electricity, gas, telephone, cable, telecommunications, etc.) based on the allocations to the Development Parcels in the City's Tustin Legacy Backbone Infrastructure Financing Program- 2024 Update adopted January 21, 2025 as the same may be amended from time to time ("Tustin Legacy Backbone Infrastructure Program"); (ii) Developer has had an opportunity to review the budgets, plans and projections developed by the City in connection with the Tustin Legacy Tustin TIC DDA 03.11.25 (14M)(3) FINAL 72 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Backbone Infrastructure Program and the studies prepared by the City in connection therewith; (iii) there is an essential nexus between the imposition on the Market Rate Project and the Affordable Project of the Project Fair Share Contribution and a legitimate governmental interest; and (iv) the Project Fair Share Contribution is roughly proportional to and reasonably and rationally related to the impacts that will be caused by development of the Market Rate Project and the Affordable Project. 8.7.2 Project Fair Share Contribution. Developer is responsible to pay the Project Fair Share Contribution which shall be in addition to the Purchase Price and paid by Developer at Close of Escrow pursuant to Section 4.2.2. Developer waives its right to fund all or any portion of such contribution pursuant to a community facilities district, including pursuant to any special tax for the development of facilities within the Tustin Legacy Backbone Infrastructure Program or pursuant to other community facilities district. For avoidance of doubt, the City acknowledges and agrees that, notwithstanding the provisions of Section 8.7.1, the preceding provisions of this Section 8.7.2 or any provision elsewhere in this Agreement to the contrary, the amount of the Project Fair Share Contribution payable by Developer at the Close of Escrow represents and constitutes the full amount of costs of the Tustin Legacy backbone infrastructure allocated to the Development Parcels as described in Section 8.7.1 pursuant to the Tustin Legacy Backbone Infrastructure Program and such payment of the Project Fair Share Contribution by Developer constitutes full, complete and final satisfaction of the Project Fair Share Contribution under the Tustin Legacy Backbone Infrastructure Program with respect to the Property and the Project and no further payment shall be owed or payable thereunder with respect thereto. 8.7.3 Community Facilities District. 8.7.3.1 The City has previously established Community Facilities District No. 18-01 ("District"). The City, by action of the City Council, intends to annex the Real Property into the District as CFD 18-01 Zone 3 prior and as a condition to the Close of Escrow and to adopt an RMA for CFD 18-01 Zone 3, provided that for the period in which any Units are designated as Lower Income Units, such Units shall be excluded from any obligation under the RMA. When CFD 18-01 Zone 3 is created, the District shall impose a special tax and lien upon the Real Property in accordance with the terms of the instruments governing CFD 18-01 Zone 3, the RMA and the requirements of this Agreement. At the time of annexation into the District, the Real Property will be de -annexed from City of Tustin Community Facilities District No. 13-01. 8.7.3.2 Subject to the annexation documents and RMA for CFD 18- 01 Zone 3 being consistent with Attachment 23 and the other terms of this Agreement related to CFD 18-01 Zone 3, including all of the terms in this Section 8.7.3, Developer, on behalf of itself and its Successor Owners, and, as to Lot 13, Affordable Housing Developer and each Successor Ground Lessee, agrees to the imposition of the special tax lien of CFD 18-01 Zone 3, as described in Section 8.7.3.1, the RMA and the new CFD 18-01 Zone 3 Special Tax, the proceeds of which shall be used by the City to fund a portion of City essential services, including but not limited to police protection services, fire protection services, ambulance and paramedic services, recreation program services, maintenance of City -owned parks, parkways and open space, flood and storm protection and street and sidewalk maintenance at Tustin Legacy. Unless otherwise agreed by the Tustin TIC DDA 03.11.25 (14M)(3) FINAL 73 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 City and Developer, each in its sole discretion, the following shall apply to CFD 18-01 Zone 3 formed by the City: 8.7.3.3 The term of the CFD 18-01 Zone 3 Special Tax component imposed upon the Real Property shall not be time limited in any manner unless determined by the City in its sole discretion. 8.7.3.4 At the Closing Date, the RMA shall establish the annual tax burden on each Parcel within the Real Property shall not exceed the amount shown on the Maximum Tax Burden Schedule attached as Attachment 23. Thereafter, the special taxes in the RMA for CFD 18-01 Zone 3 may escalate annually at a rate equal to the greater of (i) the change in the Consumer Price Index during the twelve (12) months prior to December of the previous Fiscal Year not to exceed three percent (3.00%) and (ii) two percent (2.00%), subject to and as further described in the RMA. 8.7.3.5 The CFD 18-01 Zone 3 Special Tax shall be levied only against Developed Property (i.e., property that has received a building permit for new construction, as defined in the RMA). The term "Commercial Property" shall be defined in the RMA to exclude any resident amenities operated or managed by Developer (or a Developer Affiliate) so that they are not subject to the CFD 18-01 Zone 3 Special Tax. 8.7.3.6 The City will provide Developer with the opportunity to review and provide input on all documents and budgets relating to the formation of CFD 18-01 Zone 3, annexation of the Real Property into CFD 18-01 Zone 3 and adoption of the RMA at least thirty (30) Business Days prior to the date on which the formation, annexation and RMA documents are expected to be submitted for the agenda package related to the annexation of the Real Property to CFD 18-01 Zone 3 and adoption of the RMA by the City Council. 8.7.3.7 Developer acknowledges and agrees that its development plan for the Market Rate Project and the Affordable Project will not require the formation of any community facilities district for the financing of public facilities and that neither assessment district nor community facilities district proceeds will be used to reimburse Developer for its Development Costs, including the Project Fair Share Contribution or specific infrastructure costs for the Market Rate Project or the Affordable Project, as applicable. Developer, on behalf of itself, each Successor Owner and each Affordable Housing Developer and each Successor Ground Lessee, waives its right to fund all or any portion of the development of the Market Rate Project or the Affordable Project pursuant to a community facilities district. Developer will not oppose a determination by the City to annex the Real Property into CFD 18-01 Zone 3, provided that the City, the District and the special taxes levied by CFD 18-01 Zone 3 comply with this Agreement. If due to a Default by the City, the Close of Escrow takes place pursuant to Section 15.3.2 prior to annexation of the Real Property into CFD 18-01 Zone 3 by the City or prior to Final District Approval, then the City shall nonetheless have the right to annex the Real Property into the CFD 18-01 Zone 3 (or, if challenged to form a new district) and Developer hereby agrees that it shall support the annexation of the Real Property into such CFD 18-01 Zone 3 or new district provided the same comports with the terms of this Section 8.7.3. Tustin TIC DDA 03.11.25 (HM)(3) FINAL 74 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 8.7.3.8 The City shall not be prohibited by the terms of this Agreement from subjecting the Real Property and/or the Market Rate Project Improvements and the Affordable Project Improvements thereon, as applicable, to any increase in ad valorem real property tax pursuant to a City of Tustin -wide election, provided that nothing in this Agreement shall be construed to constitute a waiver by Developer of its right or ability to dispute or oppose passage of a City of Tustin -wide bond, the proposed formation of any special district or taxing authority in connection therewith, or the imposition of any such tax, or its right to dispute any portion of the Real Property's assessed value. 8.7.3.9 With respect to the Real Property, the CFD 18-01 Zone 3 Special Tax shall be levied only against Developed Property (as referenced in Attachment 23), i.e., the Real Property that has received a building permit for new construction. In calculating the CFD 18-01 Zone 3 Special Tax for Apartments (as referenced in Attachment 23), CFD 18-01 Zone 3 Special Tax shall be calculated and levied only on Market Rate Units, all Lower Income Units, (i.e., Affordable Apartments as referenced in Attachment 23) shall be exempt from payment of the CFD 18-01 Zone 3 Special Tax, and there shall never be a special tax levied on Lower Income Units (i.e., Apartments) in CFD 18-01 Zone 3. In light of the different terminology used in Attachment 23 and elsewhere in this Agreement, and in order to avoid any potential confusion in the future, the term "Apartments" as used in Attachment 23 shall mean and refer to Market Rate Units as defined in this Agreement, and the term "Affordable Apartments" as used in Attachment 23 shall mean and refer to Lower Income Units as defined in this Agreement The term "Commercial Property" (as referenced in Attachment 23) as used in the RMA shall exclude any resident amenities operated or managed by Developer (or a Developer Affiliate) so that they are not subject to the CFD 18-01 Zone 3 Special Tax. The RMA shall contain definitions for the terms set forth in Attachment 23 that are consistent with the provisions of this Section 8.7.3.9. 8.7.4 Master Marketing Program Fees. Developer acknowledges that the City (in its Proprietary Capacity) requires that all builders within Tustin Legacy contribute a master marketing program fee towards the marketing of Tustin Legacy by the City. In complete satisfaction of such obligation by Developer, Developer shall pay to the City through Escrow Holder at the Close of Escrow only a one-time master marketing program fee of Fifty Thousand Dollars ($50,000.00). The City acknowledges and agrees that this payment shall satisfy all obligations of Developer to contribute to the master marketing program or any future master marketing program for the Market Rate Project and the Affordable Project and that Developer shall have no additional obligations on account thereof after the payment of such fee at the Close of Escrow. 8.7.5 Other Fees and Assessments, TUSD. 8.7.5.1 Developer acknowledges and agrees that in addition to applicable City fees, fees may be imposed by other Governmental Authorities with jurisdiction over the Project and/or the Property and that payment of any such fees and assessments shall be at Developer's sole cost, including (i) the Transportation Corridor Agencies' Foothill/Eastern Corridor Fee, (ii) state -mandated school impact fees and assessments by TUSD, (iii) Orange County School Facility Bonds (Measure G and Measure L), and (iv) utility meter and connection Tustin TIC DDA 03.11.25 (14M)(3) FINAL 75 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 fees, including from IRWD. 8.7.5.2 The Parties have structured the transaction to account for the current status of the TUSD Agreement, but as the TUSD Agreement contemplates various payment structures with alternatives, the Parties have agreed to the following so that all payment structures under the TUSD Agreement result in a net neutral effect on the Parties: (i) TUSD has informed the City that TUSD will accept an advance payment from the proceeds of the sale of the Property to allow early payoff of the sums due for the Property pursuant to the existing TUSD CFD 15-02 ("TUSD CFD"). City shall use good faith efforts to obtain from TUSD the TUSD Lien Release Documentation and if such TUSD Lien Release Documentation is received, the City shall use good faith efforts to cause TUSD to either remove the lien of the TUSD CFD at the Close of Escrow or to otherwise demonstrate that the TUSD CFD is paid in full as to the Property, as further discussed in Section 8.7.5.3. The City shall have the right in its sole discretion to elect the early payoff of the TUSD CFD at Close of Escrow ("TUSD Prepayment Alternative"). If the City elects the TUSD Prepayment Alternative, then the provisions of Section 8.7.5.3 shall apply and the provisions of clauses (ii) through (vii) below shall be of no further force or effect; provided that if the City makes such election but is unable by the Closing Date to obtain the TUSD Lien Release Documentation, then the City shall not be in default under this Agreement, but the provisions of clauses (ii) through (vii) below shall continue to apply. (ii) TUSD has formed the TUSD CFD that includes portions of Tustin Legacy including the Development Parcels, and the property within the TUSD CFD are subject to the payment of the TUSD CFD Special Tax. When levied against the Development Parcels by TUSD CFD, Developer shall pay the TUSD CFD Special Tax as and when due. (iii) In addition, pursuant to Section 7 of the TUSD Agreement, Contractual Mitigation Payments are required to be paid for the Development Parcels prior to the issuance of a TUSD Certificate of Compliance for such Development Parcels, and Developer shall pay such Contractual Mitigation Payments on the Development Parcels as and when due. (iv) If TUSD requires the payment of a City/COC Deposit as a condition for the issuance of a TUSD Certificate of Compliance for any product type of the Development Parcels, the City shall pay such City/COC Deposit directly to TUSD within thirty (30) days after the request by the Developer. (v) Developer has not contemplated any payment of a Supplemental DU Mitigation Payment should the current residential dwelling unit threshold of 2,835 units be exceeded pursuant to the terms of the TUSD Agreement. If Developer is subject to and has made payment of a Supplemental DU Mitigation Payment, City will provide reimbursement to Developer of such payment(s) subject Tustin TIC DDA 03.11.25 (HM)(3) FINAL 76 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 to any Off -Sets. The term "Off -Sets" means the sum of the reduction, if any, in the Contractual Mitigation Payments and the TUSD CFD Special Tax that results from the imposition of the Supplemental DU Mitigation Payment. For example, if as the result of imposing a Supplemental DU Mitigation Payment, the Contractual Mitigation Payment is reduced by $1,000 per unit, then the "Off -Sets" will be $1,000 per unit. For purposes of clarity, if the imposition of the Supplemental DU Mitigation Payment does not alter the amount of the Contractual Mitigation Payment or the TUSD CFD Special Tax required to be paid by the Developer, there shall be no Off -Sets. (vi) The City represents and warrants to Developer that 618 total non -Senior Units (as that term is defined in the TUSD Agreement), inclusive of the Project, have been constructed or approved for construction within the City Property (as described in the TUSD Agreement) as of the Effective Date, and the City will update Developer in writing, upon Developer's request, of (a) any additional non -Senior Units for which the City has approved an application for entitlement or has received a completed application for entitlement within any portion of the City Property or (b) the City enters into an agreement to sell any portion of the City Property for residential use. (vii) Developer acknowledges and agrees that if Developer receives any TUSD Bond Proceeds for any reason (including but not limited to reimbursement of any Contractual Mitigation Payments paid by Developer), such TUSD Bond Proceeds received by the Developer shall accrue to the benefit of the City, and Developer agrees to promptly notify the City and to pay all TUSD Bond Proceeds that Developer receives to the City within sixty (60) days of Developer's receipt thereof. 8.7.5.3 TUSD Prepayment Alternative. On or before the date that is six (6) months following the Effective Date, the City shall have the right, in its sole discretion, to elect the TUSD Prepayment Alternative. If it makes such election, then the City shall use good faith efforts to obtain from TUSD documentation pursuant to which TUSD has agreed, upon receipt of payment in full of an agreed -upon sum from the City at the Close of Escrow ("TUSD Lien Release Amount"), to either release the lien of the TUSD CFD or to provide other evidence demonstrating payment in full of the TUSD CFD as to the Property ("TUSD Lien Release") at Close of Escrow ("TUSD Lien Release Documentation"). In the event City elects the TUSD Prepayment Alternative, and notwithstanding the payment of the TUSD Lien Release Amount, Developer and its Successor Owners, Ground Lessee and Successor Ground Lessees shall have the obligation to pay the Contractual Mitigation Payments (or the statutory school fees that are generally collected in connection with issuance of building permits, but not both) on the Development Parcels as and when due, the City shall be responsible for the remaining obligations under the TUSD Agreement (if any) in connection with the Property, and no TUSD Assignment shall be required by this Agreement (which obligations shall survive the Close of Escrow). If the TUSD Lien Release Documentation is received in Escrow prior to the Closing Date, as the same may be extended by the City pursuant to Section 7.1.2, the lien of the TUSD CFD shall be paid as Tustin TIC DDA 03.11.25 (14M)(3) FINAL 77 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 follows: (i) Developer shall pay to Escrow Holder as part of the Closing Payment (and the Closing Payment shall be increased by the same) the amount of Twenty One Million Nine Hundred Thousand Dollars ($21,900,000.00) ("Developer TUSD Lien Release Payment") which shall be applied to and reduce the TUSD Lien Release Amount; and (ii) The City shall be responsible to pay to TUSD from the Purchase Price the TUSD Lien Release Amount less the Developer TUSD Release Payment applied pursuant to Section 8.7.5.1 i) and the City shall be entitled to retain any excess amount from the Developer TUSD Lien Release Payment, if any, after payment of the TUSD Lien Release Amount to TUSD. (iii) Escrow Holder shall, upon the Close of Escrow and pursuant to Escrow instructions provided by City and TUSD and confirmed by Developer, pay the TUSD Lien Release Amount to TUSD and cause the TUSD Lien Release Documentation to be Recorded and the TUSD Lien Release to occur. 8.7.6 Assignment of TUSD Agreement. Promptly following the Effective Date, the Parties shall meet and confer in good faith with TUSD in order to seek agreement on the final form of TUSD Assignment to be entered into pursuant to Sections 7.2.1.8 and 7.2.2.13. The Parties shall use good faith efforts to complete negotiations with TUSD no later than six (6) months following the Effective Date. 8.7.7 No Ouimby Act Fees or Park Fees. Except as set forth in the Development Agreement, all fees and/or dedications required in connection with the Market Rate Project and the Affordable Project pursuant to the Quimby Act, Govt. Code Section 66477, are included within the Project Fair Share Contribution and Developer shall not have any additional liability on account thereof. 8.8 Grading Work; Design and Construction of Improvements. 8.8.1 Grading Work. Following the Close of Escrow, Developer shall cause the Grading Work upon Lot 11 and Lot 12 to be performed. In addition, following the Lot 13 Transfer, if not previously performed by Developer, Developer shall cause Affordable Housing Developer to perform the Grading Work upon the Lot 13 Real Property. Grading Work shall be performed in accordance with the Approved Plans and the requirements of this Agreement within the time period set forth in the Schedule of Performance. The Grading Work will be performed separately on each Parcel. 8.8.2 Horizontal Improvements. Developer shall, or with respect to Lot 13 shall cause Affordable Housing Developer to (i) submit plans for Horizontal Improvements (other than Landscape Improvements) for approval by the City within the time periods set forth in the Schedule of Performance, (ii) promptly obtain permits for the Horizontal Improvements following City approval of the Approved Plans and (iii) when authorized by this Agreement or the Other Tustin TIC DDA 03.11.25 (14M)(3) FINAL 78 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Agreements, to commence construction of and diligently prosecute construction of the Horizontal Improvements in accordance with and subject to this Agreement, with the Market Rate Horizontal Improvements work to commence promptly following the Close of Escrow and Affordable Project Horizontal Improvements to commence promptly after the Affordable Project Closing. 8.8.3 Vertical Improvements. Developer shall promptly obtain permits for the Market Rate Vertical Improvements following City approval of the Approved Plans and shall commence construction of and diligently prosecute construction of the Market Rate Vertical Improvements to Completion in accordance with the Schedule of Performance. Developer shall cause Affordable Housing Developer (i) to promptly obtain permits for the Affordable Project Vertical Improvements following City approval of the Approved Plans and with such permits being ready to issue as a condition to the Lot 13 Transfer and (ii) to commence construction of and diligently prosecute construction of the Affordable Project Vertical Improvements in accordance with the Schedule of Performance following the Lot 13 Transfer. 8.9 Guaranty and Guarantor. 8.9.1 Deliverables at Close of Escrow. At the Close of Escrow, Developer shall deliver a Guaranty from a Guarantor approved by the City in its sole discretion (subject to the following sentence). As of the Effective Date, the City has reviewed and approved TICAD as the Guarantor. At the Close of Escrow, Developer shall cause the Guarantor to provide to the City (i) evidence and written assurances that Guarantor has Liquid Assets and Net Worth that meet the Minimum Asset Standards set forth in the Guaranty, (ii) a Guarantor Original Certificate and (iii) a Guaranty Legal Opinion. 8.9.2 Replacement of Guarantor. If Developer or any Transferee desires to replace its existing Guaranty or the approved Guarantor, as a condition to the City's review and approval, in its sole discretion, of the proposed guarantors and the form and substance of the Guaranty (with such modifications from the form of Attachment 14A as the City may require in its sole discretion), Developer shall cause the proposed guarantors to deliver evidence of the financial capacity of the proposed guarantors, authority of the proposed guarantors to provide the Guaranty, and copies of all documents evidencing formation, good standing and authority requested by the City, including providing information regarding Guarantor's then -current Liquid Assets and Net Worth to assure that the Guarantor meets the Minimum Asset Standards (provided that if any Transfer is proposed to take place prior to the Close of Escrow, Developer or Transferee shall provide information regarding the Liquid Assets and Net Worth of the proposed guarantor anticipated at the time at which the Guaranty would be given, and the City's review of such information shall not be deemed to be City's approval of Guarantor, which shall be provided if at all, as a condition for the benefit of the City at the Close of Escrow and Transfer). The proposed guarantor shall have Liquid Assets and Net Worth that meet the Minimum Asset Standards and such amounts shall be sufficient, in the determination of the City in its sole discretion, to secure the obligations of Developer and Affordable Housing Developer under this Agreement and the Other Agreements. The City shall have the right to approve or disapprove the proposed guarantor in its sole discretion. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 79 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 8.9.3 Guarantor Illiquidity Event; Developer Default. The Guaranty requires Guarantor to maintain Liquids Assets and Net Worth meeting the Minimum Asset Standards and to comply with certain related covenants, and the failure of Guarantor to do so is referred to in the Guaranty as a Guarantor Illiquidity Event. If a Guarantor Illiquidity Event occurs, the City's notice to Developer of the existence of the Guarantor Illiquidity Event, if given by the City, shall constitute a declaration by the City of a Material Default by Developer pursuant to Section 14.2.1 unless the cure of such Guarantor Illiquidity Event occurs during the applicable cure period set forth in the Guaranty. To cure such Material Default, Developer shall be required to provide the City with additional security satisfactory to the City by (i) providing the City with a Guaranty from a replacement or supplemental guarantor or guarantors acceptable to the City in its sole discretion (and with such modifications from the form of Attachment 14A as the City may require in its sole discretion), or (ii) furnishing the City with another form of security such as a pledge of specified assets or completion bond, in each case in a manner meeting the requirements of the City in its sole discretion. 8.9.4 Guaranty Effective Until Final Certificate of Compliance. Developer, on behalf of itself and each Successor Owner, and the City on behalf of itself and its successors and assigns, hereby agree that notwithstanding any other term of this Agreement, the Guaranty provided at the Close of Escrow (or, if applicable, any replacement Guaranty provided to and approved by the City pursuant to this Agreement) shall remain in effect until Recording by the City of the Final Certificate of Compliance and the Guarantor shall not be released therefrom, except as otherwise expressly provided in the Guaranty unless the Guaranty is replaced by an executed new Guaranty from a Guarantor approved by the City in accordance with Section 8.9.2. 8.10 Replacement of Equity Investor. If as a result of a Transfer or for any other reason Developer has identified a new Equity Investor which has not previously delivered an Equity Investor Original Certificate or entered into an Equity Commitment, the City shall have the right to approve such Equity Investor in its sole discretion and to confirm in its sole discretion that such proposed Equity Investor has sufficient Liquid Assets and Net Worth, as determined by the City in its sole discretion, to fund all Development Costs for the Market Rate Project and the Affordable Project as described in the Market Rate Project Financing Plan or Updated Market Rate Project Financing Plan as applicable and in connection with such approval Developer shall cause the Equity Investor to deliver to the City those items set forth in Section 4.6.2.3 and the form of Equity Commitment, which shall be subject to approval of the City in its sole discretion (and only upon City approval in its sole discretion of each of the foregoing shall the proposed Equity Investor be deemed an Approved Equity Investor). Notwithstanding the foregoing, the City hereby approves The Irvine Company as an Approved Equity Investor. 8.11 Development Covenants. With respect to construction of the Market Rate Project, the Market Rate Project Improvements, the Affordable Project and the Affordable Project Improvements, Developer, on behalf of itself and each Successor Owner, and as to the Affordable Project and the Affordable Tustin TIC DDA 03.11.25 (14M)(3) FINAL 80 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Project Improvements only, Affordable Housing Developer and each Successor Ground Lessee, hereby covenants and agrees as follows and wherever Developer undertakes an obligation in this Section, the same shall be Affordable Project Provisions and obligations of each Affordable Housing Developer as to the Affordable Project (to the extent not retained by Developer) and the Affordable Project Improvements whether or not Affordable Housing Developer is specifically identified below; provided that nothing contained in this Section shall preclude Affordable Housing Developer or any Successor Ground Lessee from obtaining one or more Construction Loans for purposes of construction of the Affordable Project in accordance with Article 17: 8.11.1 Developer shall maintain throughout the Term, sufficient equity, capital and firm binding commitments for financing necessary to (i) pay through Completion, all costs of development, construction, marketing, sale and/or leasing, operation and management of all the Market Rate Project Improvements and the Affordable Project Improvements as defined in the Scope of Development; and (ii) enable Developer to perform and satisfy all the covenants of Developer contained in this Agreement, the Quitclaim Deed, the Special Restrictions, the Affordable Housing Declaration, the Public Access Covenant and the Landscape and Installation and Maintenance Agreement. Developer shall not undertake any additional project if it could reasonably be expected to jeopardize the sufficiency of any equity, capital and firm and binding commitments for the purposes expressed in the preceding sentence. 8.11.2 The development of the Market Rate Project and the Affordable Project shall be done in a professional and competent manner. Developer shall, and shall cause Affordable Housing Developer (with respect to the Affordable Project) and all other Persons carrying out work on the Development Parcels to, perform all work required to construct and Complete the Market Rate Project Improvements, the Affordable Project Improvements, the Market Rate Project, the Affordable Project and related work in accordance with the Approved Plans, the Entitlements, the Development Permits, the Design Guidelines and all Governmental Requirements and at the level of quality set forth in the Scope of Development. 8.11.3 Developer shall be responsible for the timeliness and quality of all work performed and materials and equipment furnished in connection with the Market Rate Project and the Affordable Project, whether the work, materials and equipment are performed and furnished by Developer or through contractors, subcontractors (of all tiers) and suppliers. 8.11.4 Developer shall not place, or allow to be placed, on its interests in the Property, the Market Rate Project Improvements or the Affordable Project Improvements, or any portion thereof, any Mortgage, except as provided in this Agreement with respect to the Affordable Project. 8.11.5 Developer shall not place, or allow to be placed, on its interests in the Property, the Market Rate Project Improvements or the Affordable Project Improvements, or any portion thereof any encumbrance or lien, including any Construction Lien, other than pursuant to a Leasehold Mortgage with respect to the Affordable Project. 8.11.6 Developer shall, within thirty (30) Business Days following receipt of notice thereof, cause to be removed or bonded against (such bonding to be by the provision of Tustin TIC DDA 03.11.25 (14M)(3) FINAL 81 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 bonds satisfying California statutory requirements) any and all mechanic's liens, stop notices and/or bonded stop notices that are Recorded and/or served by contractors, subcontractors (of all tiers) and suppliers in connection with the Market Rate Project and the Affordable Project including construction of Market Rate Project Improvements and the Affordable Project Improvements on the Development Parcels or performance of other work by Developer, Affordable Housing Developer or any of the Developer Representatives in connection therewith, including conducting investigations or causing the foregoing to be carried out ("Construction Liens"). Notwithstanding the foregoing, Developer may contest the amount, validity or application, in whole or in part, of any Construction Liens; subject, however, to the further requirement that neither the Property nor any Market Rate Project Improvements nor any Affordable Project Improvements nor any part or interest in either thereof would be in any danger of being sold, forfeited, attached or lost pending the outcome of such proceedings. If any such contest is finally resolved against Developer, the same shall promptly pay the amount required to be paid, together with all interest and penalties accrued thereon. Developer on behalf of itself, each Successor Owner, and as to liens arising from work performed by Affordable Housing Developer or its Developer Representatives only, the Lot 13 Property, the Affordable Project and Affordable Project Improvements only, each Affordable Housing Developer and Successor Ground Lessee, hereby agrees to indemnify, defend and hold the City Indemnified Parties free and harmless from and against any and all Claims arising from or related to failure to pay for construction of the Market Rate Project Improvements, the Affordable Project Improvements or other work related to the Market Rate Project Improvements, the Affordable Project Improvements, the Market Rate Project or the Affordable Project, including costs to remove or bond any Construction Liens for work performed on a Parcel to the extent (A) Accrued during its respective period of ownership thereof, and (B) with respect to Developer only, Accrued during such longer period between the Effective Date and the date of issuance of a Certificate of Compliance for the applicable Parcel if Developer is not released pursuant to Article 2; provided, however, that neither Developer, Affordable Housing Developer nor any Successor Owner nor any Successor Ground Lessee shall have liability or responsibility for such Claims for work performed by the City or any contractor of the City that is claiming a right to a Construction Lien on any portion of the Real Property. For the avoidance of doubt, "any contractor of the City" does not mean (x) Developer, each Successor Owner or any Person claiming by, through or under Developer or any Successor Owner or (y) for any period in which such Person is the Ground Lessee under a Ground Lease and with respect to the Affordable Project Provisions, Affordable Project, Affordable Project Improvements and Lot 13 Real Property only, Affordable Housing Developer or any Successor Ground Lessee. 8.12 City Rights of Access. In addition to any rights it may have in its Governmental Capacity, representatives of the City shall have the reasonable right of access to the Property, the Market Rate Project Improvements and the Affordable Project Improvements, upon not less than two (2) Business Days prior written notice to Developer or, with respect to the Affordable Project Improvements, to Affordable Housing Developer (except in the event of an emergency, in which case no such prior notice shall be required), without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including the inspection of the work being performed in constructing the Market Rate Project Improvements and the Affordable Project Tustin TIC DDA 03.11.25 (14M)(3) FINAL 82 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Improvements. 8.13 Disclaimer of Responsibility by City and Exculpation. 8.13.1 Disclaimer of Responsibility. The City neither undertakes nor assumes nor will have any responsibility or duty to Developer, any Successor Owner, any Affordable Housing Developer, nor any Successor Ground Lessee any Developer Representatives, any End User or any other Person to review, inspect, supervise, pass judgment upon or inform Developer, any Successor Owner, any Affordable Housing Developer, any Successor Ground Lessee, any End User or any other Person of any matter in connection with the development or construction of the Market Rate Project Improvements and/or the Affordable Project Improvements or the approval of any maps, including the Horizontal Improvements, the Vertical Improvements or the Approved Plans, any Basic Concept Plan or component thereof and grading plans with respect to the foregoing, whether regarding the quality, adequacy or suitability of the plans, any labor, service, equipment or material furnished for development of the Market Rate Project and the Affordable Project or other work related to the Market Rate Project Improvements or the Affordable Project Improvements, any Person furnishing same, or otherwise. Developer, any Successor Owner, any Affordable Housing Developer, any Successor Ground Lessee, any End User and all other Persons shall each rely upon its or their own judgment regarding such matters, and any review, inspection, supervision, exercise of judgment or information supplied to it by the City in connection with such matter is for the public purpose of developing the Market Rate Project and the Affordable Project, and none of the foregoing is entitled to rely upon information supplied by the City. 8.13.2 Exculpation. The City shall not be liable in damages to Developer or to any Successor Owner, any Affordable Housing Developer, any Successor Ground Lessee, any Developer Representatives, any End User or any other Person, on account of (i) any approval or disapproval by the City, including by the City Manager or designee, made in the Governmental Capacity and/or Proprietary Capacity of the City of any Entitlements, Development Permits, design documents or maps, in connection with the Market Rate Project, the Affordable Project, the Project Improvements or the Approved Plans, any Basic Concept Plan or component thereof and grading plans with respect to the foregoing, whether or not defective or whether or not in compliance with applicable laws or ordinances; (ii) any construction, performance or nonperformance by Developer, Affordable Housing Developer or any Successor Owner, Successor Ground Lesse, lessee, licensee or other Person of any work on the Development Parcels, the Market Rate Project Improvements or the Affordable Project Improvements, whether or not pursuant to Approved Plans or whether or not in compliance with applicable laws or ordinances; (iii) any mistake in judgment, negligence, action or omission in exercising its rights, powers and responsibilities under this Agreement or any other agreement between City and Developer in connection with Sections 8.13.1 and 8.13.2(i) and (ii); and/or (iv) the enforcement or failure to enforce any of the provisions of this Agreement. Each and every Person who makes design submittals for approval agrees by reason of such submittal, and Developer, on behalf of itself, each Successor Owner and all Persons claiming by, through or under Developer or each Successor Owner agrees by acquiring an interest in the Property, the Market Rate Project Improvements, the Affordable Project Improvements or any portion thereof or interest therein, not to bring any suit or action against the City seeking to recover any such damages and expressly waives any such Tustin TIC DDA 03.11.25 (14M)(3) FINAL 83 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 claim or cause of action for such damages which it would otherwise be entitled to assert. The review of any design submittals shall not constitute the assumption of any responsibility by, or impose any liability upon, the City as to the accuracy, efficacy, sufficiency or legality thereof nor decrease or diminish any liability, duties, responsibilities, or obligations of Developer, any Successor Owner, or, as to the Lot 13 Property, the Affordable Project Provisions and the Affordable Project Improvements only, Affordable Housing Developer or any Successor Ground Lessee under this Agreement or otherwise. 8.13.3 City Responsibility. Nothing in this Section 8.13 shall limit or be deemed to limit the City's express representations, warranties, covenants and obligations set forth in this Agreement and the Other Agreements. 8.13.4 No Supervision or Control. The City (whether acting in the Governmental Capacity and/or Proprietary Capacity of the City) does not have any right, and hereby expressly disclaims any right, of supervision or control over the architects, designers, engineers or persons responsible for drafting or formulating of the plans, drawings and related documents of Developer and/or Affordable Housing Developer. 8.13.5 Graded Condition of the Development Parcels. The City has previously caused its contractor to rough grade the Development Parcels and such Development Parcels have been certified by Fabio Escobar on April 10, 2014 (Permit No 2013-0010) and by Jessica Leyva on January 27, 2021 (CIP 70246 and 70250). Developer acknowledges that the City is delivering the Property as -is and does not certify in any manner the grading or condition of the Development Parcels. Developer, Affordable Housing Developer each Successor Owner and each Successor Ground Lessee shall look solely to the engineers, consultants and contractors and their respective certifications and not to the City for all purposes related to the Grading Work performed, including the adequacy of the work and the certification(s). 8.13.6 Survival. The provisions of this Section 8.13 shall be included in the Special Restrictions, shall run with the land, shall remain in effect in perpetuity and shall survive termination of this Agreement, the Close of Escrow, and the execution and Recording by the City of each Certificate of Compliance, shall not merge with any deed and shall be binding upon Developer, its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer, including all End Users, for the benefit of the City and its Governmental Successors, and from and after the Close of Escrow, and shall be binding upon and burden the Real Property. 8.14 Local, State and Federal Laws. Developer shall carry out the construction of the Market Rate Project including all Market Rate Project Improvements and shall carry out or cause Affordable Housing Developer to carry out the Affordable Project and the Affordable Project Improvements, subject to Sections 8.1.3 and in conformity with all Governmental Requirements including all applicable federal and State labor laws and regulations and shall, if and to the extent required by applicable federal or State labor laws or regulations, pay prevailing wages meeting the requirements of such laws and regulations; provided that Developer on behalf of itself, Affordable Housing Developer, each Successor Owner Tustin TIC DDA 03.11.25 (14M)(3) FINAL 84 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 and each Successor Ground Lessee reserves the right to reasonably contest such laws and regulations. Developer, Affordable Housing Developer and each Successor Ground Lessee (as to the Affordable Project and Affordable Project Improvements only) and each Successor Owner shall carry out construction of the Project Improvements in compliance with the requirements of this Section and each shall be fully responsible for determining whether the foregoing wage requirements are applicable to the Market Rate Project and Affordable Project. Developer hereby agrees on behalf of itself, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner, but excluding End Users, to indemnify, defend and hold the City and the City Indemnified Parties free and harmless from and against any and all Claims arising from or related to applicability of the prevailing wage requirements imposed by any federal and State labor laws and/or the compliance by Developer or Developer's officers, directors, employees, agents, representatives, consultants and/or contractors (at every tier) in construction of the Project Improvements with the prevailing wage requirements imposed by any applicable federal and State labor laws. For avoidance of doubt, Developer, Affordable Housing Developer, each Successor Owner and each Successor Ground Lessee shall be liable pursuant to this Section only with respect to work performed on a Parcel (A) during its respective period of ownership (or as to Affordable Housing Developer and each Successor Ground Lessee, during any period in which it has an interest in the Lot 13 Property pursuant to a Ground Lease) of such Parcel, and (B) with respect to Developer only, during such longer period between the Effective Date and the date of issuance of a Certificate of Compliance for the applicable Parcel until it is released pursuant to Article 2 provided, however, that neither Developer, Affordable Housing Developer nor any Successor Owner nor any Successor Ground Lessee shall have liability or responsibility for prevailing wage requirements for public improvements performed by the City or any contractor of the City on any portion of the Property, and provided further that the foregoing shall not relieve Developer, Affordable Housing Developer or any Successor Owner or Successor Ground Lessee of liability should the City work trigger a determination that the Project or any Project Improvement is subject to prevailing wage requirements. The City makes no representations nor warranties regarding the applicability of prevailing wage laws. For the avoidance of doubt, "any contractor of the City" does not mean (x) Developer, each Successor Owner or any Person claiming by, through or under Developer or any Successor Owner or (y) or for any period in which such Person is the Ground Lessee under a Ground Lease and with respect to the Affordable Project Provisions, Affordable Project, Affordable Project Improvements and Lot 13 Real Property only, Affordable Housing Developer or any Successor Ground Lessee. 8.15 Liens, Taxes and Assessments. Developer and each Successor Owner shall pay prior to delinquency all real estate taxes and assessments assessed and levied on or against all portions of the Property, the Market Rate Project Improvements, and the Affordable Project Improvements during the period of ownership thereof by such Developer or Successor Owner and Affordable Housing Developer and each Successor Ground Lessee, if any, shall be responsible to pay prior to delinquency all real estate taxes, possessory interest taxes, if any, and assessments assessed and levied on or against all portions of the Affordable Project Improvements owned by it during the term of its Ground Lease; provided that the foregoing shall not prohibit application by Developer, any Successor Owner, Affordable Housing Developer or any Successor Ground Lessee for a property tax welfare Tustin TIC DDA 03.11.25 (14M)(3) FINAL 85 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 exemption with respect to the Affordable Project. Developer shall not place, or allow to be placed, on its interests in the Property, or any Parcel, Building or Residential Unit, or any portion thereof, any Mortgage or encumbrance or lien not authorized by this Agreement. Developer shall remove, or shall have removed, any levy or attachment made on its interests in the Property, the Market Rate Project Improvements or the Affordable Project Improvements (or any portion thereof) or shall assure the satisfaction thereof within thirty (30) Business Days following receipt of notice thereof. Except as set forth in Sections 8.7.2 and 8.7.3, nothing contained in this Agreement shall be deemed to prohibit Developer, Affordable Housing Developer, any Successor Owner or any Successor Ground Lessee from contesting the validity or amount of any tax or assessment or to limit the remedies available to Developer, Affordable Housing Developer, such Successor Owner or such Successor Ground Lessee in respect thereto. Developer on behalf of itself, Affordable Housing Developer, each Successor Owner and each Successor Ground Lessee hereby agrees to indemnify, defend and hold the City Indemnified Parties free and harmless from and against any and all Claims arising from or related to failure to pay liens, taxes and assessments assessed, levied to the extent (A) Accrued during its respective period of ownership (or as to Affordable Housing Developer or Successor Ground Lessee, Ground Lease) of a Parcel, and (B) with respect to Developer only, Accrued during such longer period between the Effective Date and the date of issuance of a Certificate of Compliance for the applicable Parcel until it is released pursuant to Article 2. 8.16 Duration of Article 8 Indemnities; Post -Certificate of Compliance Affiliate Responsibilities. The provisions, including the indemnities, set forth in Sections 8.11.6, 8.14 and 8.15 shall survive the termination of this Agreement, the Close of Escrow and the execution and Recording by the City of each Certificate of Compliance, shall not merge with any deed and shall remain in effect for the Term of this Agreement and, upon Recording of the Special Restrictions each shall run with the land for the term of the Special Restrictions in accordance with the specific terms of Sections 8.11.6, 8.14 and 8.15. Following issuance of a Certificate of Compliance for each Parcel, and notwithstanding the limitations in Sections 8.11.6, 8.14 and 8.15 of liability of each Owner during its respective period of ownership of such Parcel, upon any Transfer of fee title or a Ground Lease interest to a Parcel by an Owner (Transferor) to an Owner Affiliate (Transferee) occurring following issuance of a Certificate of Compliance for such Parcel, the Transferee shall be deemed to have assumed and be liable for the obligations of the Transferor and each consecutive prior Owner Affiliate Transferee as though such Transferee had held joint ownership with Transferor and each consecutive prior Owner Affiliate Transferee during their respective prior consecutive periods of ownership of such Parcel. 9. Certificate of Compliance. 9.1 Completion; Schedule of Performance. Subject to Section 18.7, following the Close of Escrow, Developer shall construct or cause to be constructed the components of the Market Rate Project and the Affordable Project, as applicable, upon the Real Property conveyed and shall satisfy all Conditions Precedent relating to Tustin TIC DDA 03.11.25 (14M)(3) FINAL 86 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 issuance of the Certificates of Compliance for such components of the Market Rate Project and the Affordable Project when and as required by this Agreement in accordance with the Schedule of Performance. 9.2 Certificates of Compliance Defined. After Completion of all construction and development required to be undertaken by Developer in conformity with this Agreement and in accordance with the Schedule of Performance and the satisfaction by Developer of, as applicable, Conditions Precedent set forth in Section 9.3 as to the Market Rate Property and the Conditions Precedent set forth in Section 9.4 as to the Lot 13 Property, the City shall deliver to Developer or Successor Owner owning fee title a "Certificate of Compliance" for the associated portion of the Real Property and Market Rate Project or the Affordable Project, as applicable. For avoidance of doubt, and subject to the preceding sentence, the City shall deliver a separate Certificate of Compliance with respect to each Parcel within the Market Rate Real Property and for each Parcel within Lot 13. The Certificate of Compliance for the Market Rate Project shall be substantially in the form and substance of the Certificate of Compliance set forth on Attachment 16A and the Certificate of Compliance for the Affordable Project shall be substantially in the form and substance of the Certificate of Compliance set forth on Attachment 16B. Developer, on behalf of itself, each Successor Owner, and each and every Person claiming by, through or under Developer or any Successor Owner, including each End User, hereby consents to Recording by the City of the Final Certificate of Compliance against the entirety of the Real Property, notwithstanding that portions or all of the Real Property may have been transferred prior thereto to Successor Owners or End Users or by Ground Lease and notwithstanding that a Certificate of Compliance may have previously been Recorded against a portion of the Real Property, and confirms that no further acknowledgement or consent by the then -Owners or Ground Lessees of the Real Property shall be required in connection with such Recording. Each Certificate of Compliance shall state the actual number of units (and whether Market Rate Units or Lower Income Units) constructed on the applicable Parcel(s) as of the date of issuance thereof, and such unit count shall establish the actual number of units allocated to Developer by the City pursuant to Section 4.1.2 and the Quitclaim Deed. The provisions of this Section with respect to Recording by the City of the Certificate of Compliance shall terminate if this Agreement terminates prior to Close of Escrow but shall survive any subsequent termination of this Agreement, to preserve the right of the City and each subsequent Developer to cause Recording by the City of the Final Certificate of Compliance against the entirety of the Real Property. 9.3 Market Rate Project Certificate of Compliance Conditions Precedent. The City shall not be obligated to execute and Record the Certificate of Compliance for the Market Rate Project or any Parcel comprising a portion thereof, as applicable (each, a "Market Rate Project Certificate of Compliance"), unless and until each of the following has occurred with respect to the Market Rate Project or such Parcel, as applicable: 9.3.1 The Developer Final Tract Map shall have been Recorded. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 87 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 9.3.2 With respect to each of Building 1, Building 2, Building 3, and Building 4 (as shown on the Phasing Plan), Completion of the Market Rate Project Improvements for such Building with the number of Market Rate Units to be constructed on the Parcel on which such Building is located as depicted on the Approved Plans and all accompanying amenities, Common Area Improvements, abutting Publicly Accessible Common Area Improvements (except to the extent set forth in Sections 9.3.2.1(iii) and 9.3.2.3(111)) and Landscape Improvements associated with such Parcel and the following shall have occurred: 9.3.2.1 Building_1 (as shown on the Phasing Plan): (i) the Public Park in Lot A as shown on the Developer Final Tract Map shall have been Completed; (ii) framing of Building 5 within the Affordable Project (as shown on the Phasing Plan) shall have commenced; (iii) the publicly accessible paseo area adjacent to Building 1 shall have been Completed in a manner sufficient to provide Tustin Building Code required access; and (iv) the Cafe within Building 1 is open to the public. 9.3.2.2 Building 2 (as shown on the Phasing Plan): (i) a Certificate of Compliance for Building 5 shall have been issued by the City; (ii) a certificate of occupancy for Building 1 shall have been issued by the City; (iii) the Public Park in Lot A as shown on the Developer Final Tract Map shall have been Completed; and (iv) the publicly accessible paseo areas adjacent to Building 1, Building 2 and Building 5 shall have been Completed. 9.3.2.3 Building_3 (Market Rate): (i) a Certificate of Compliance for Building 5 shall have been issued by the City; (ii) framing of Building 6 within the Affordable Project (as shown on the Phasing Plan) shall have commenced; and (iii) the publicly accessible paseo areas adjacent to Building 3 shall have been Completed in a manner sufficient to provide Tustin Building Code required access. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 88 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 9.3.2.4 Building 4 (Market Rate): (i) A Certificate of Compliance for Building 5 and for Building 6 shall have been issued by the City; (ii) A certificate of occupancy for Building 3 shall have been issued by the City; and (iii) the publicly accessible paseo areas adjacent to Building 3, Building 4 and Building 6 shall have been Completed. 9.3.3 Final inspection by or on behalf of the City of the Market Rate Real Property or the Parcel for which a Certificate of Compliance is sought and the Market Rate Project Improvements constructed thereon and determination by the City that such Market Rate Project Improvements have been Completed on the relevant Parcel in conformance with this Agreement, the Approved Plans and all Governmental Requirements; 9.3.4 For each Parcel for which a Certificate of Compliance is sought, issuance of a certificate of occupancy by the City for Buildings upon such Parcel containing the number of Residential Units to be constructed within such Building as depicted on the Approved Plans; 9.3.5 Written release or bonding for the applicable Parcel of the Market Rate Real Property in accordance with California law of all Construction Liens or rights to record liens from the general contractor and all subcontractors (at all tiers) having served valid preliminary 20- day notices, or, if none are filed, the statutory period for filing liens having expired without any Construction Liens being filed against or with respect to the Real Property or applicable Parcel thereof; 9.3.6 Payment by Developer to the City of all funds then owing to the City under this Agreement and, the Other Agreements; and 9.3.7 No Potential Default or Material Default by Developer under this Agreement or default under the Other Agreements or default by Guarantor under the Guaranty shall have occurred and be continuing. 9.4 Affordable Project Conditions Precedent. Upon satisfaction of the Conditions Precedent set forth in this Section 9.4 with respect to the Affordable Project or any Parcel comprising a portion thereof, as applicable, the City shall execute and Record a Certificate of Compliance with respect to the Lot 13 Real Property or such Parcel, as applicable (each, an "Affordable Project Certificate of Compliance"): 9.4.1 The Developer Final Tract Map shall have been Recorded. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 89 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 9.4.2 With respect to each of Building 5 and Building 6 (as shown on the Phasing Plan), Completion of (i) the Affordable Project Improvements, including the number of Residential Units and the number of Lower Income Units, required to be constructed on the Parcel on which such Building is located all as depicted on the Approved Plans, and (ii) all accompanying amenities, Common Area Improvements, abutting Publicly Accessible Common Area Improvements (except to the extent set forth in Section 9.4.2.1) and Landscape Improvements associated with the Lot 13 Real Property or such Parcel, as applicable and the following shall have occurred: 9.4.2.1 for Building 5 (as shown on the Phasing Plan), the publicly accessible paseo area adjacent to Building 5 shall have been Completed, provided that if the Vertical Improvements for Building 6 are then under construction, the requirement for Completion shall only require construction in a manner sufficient to provide Tustin Building Code required access for residents, invitees and guests of Building 5; and 9.4.2.2 for Building 6 (as shown on the Phasing Plan): (i) a Certificate of Compliance for Building 5 shall have been issued by the City; and (ii) the publicly accessible paseo areas adjacent to Building 5 and Building 6 shall have been Completed; 9.4.3 Final inspection by or on behalf of the City of the Lot 13 Real Property or the Parcel for which a Certificate of Compliance is sought and the Affordable Project Improvements constructed thereon and determination by the City that such Affordable Project Improvements have been Completed on the relevant Parcel in conformance with this Agreement, the Approved Plans and all Governmental Requirements; 9.4.4 For each Parcel for which a Certificate of Compliance is sought, issuance of a certificate of occupancy by the City for Buildings upon such Parcel containing the number of Residential Units and Lower Income Units to be constructed within such Building as depicted on the Approved Plans; 9.4.5 Written release or bonding in accordance with California law of all Construction Liens or rights to record liens from the general contractor and all subcontractors (at all tiers) having served valid preliminary 20-day notices, or if none are fled, the statutory period for filing liens having expired without any Construction Liens being filed against or with respect to the Lot 13 Real Property or applicable Parcel thereof; 9.4.6 Payment to the City of all funds then owing to the City under this Agreement and the Other Agreements with respect to the Affordable Project Provisions and/or the Affordable Project; and 9.4.7 No default by the Affordable Housing Developer with respect to the Affordable Project Provisions or under the Other Agreements and no default by Affordable Tustin TIC DDA 03.11.25 (14M)(3) FINAL 90 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Housing Developer under the Lot 13 PDA or the Approved Ground Lease shall have occurred and be continuing. 9.5 Conclusive Presumption. Each Certificate of Compliance shall be, and shall so state, conclusive determination of satisfactory completion of the obligations of Developer pursuant to this Agreement with respect to the relevant Parcel and shall be evidence of termination of this Agreement, subject only to the provisions referenced in Section 9.8 and the Other Agreements affecting such Parcel, each of which shall survive in accordance with its respective terms. 9.6 Not Evidence. Issuance by the City of any Certificate of Compliance is not notice of completion as referred to in Section 8182 of the California Civil Code. 9.7 City Obligations. The City shall not unreasonably withhold, condition, or delay issuance of a Certificate of Compliance for the Market Rate Property or Lot 13 Property when all the Conditions Precedent thereto are satisfied. Developer shall provide, or shall cause Affordable Housing Developer to provide evidence of satisfaction of the foregoing conditions. If the City refuses or fails to execute and Record such Certificate of Compliance after written certification from Developer and with respect to the Lot 13 Real Property or any portion thereof, Affordable Housing Developer, which shall include evidence of satisfaction of each of the applicable Conditions Precedent to such issuance set forth in this Article 9, provided each of the applicable conditions established in Section 9_3 and/or Section 9.4 have been satisfied, the City shall, within fifteen (15) Business Days of the written request, provide a written statement which details the reasons the City refused or failed to execute and Record such Certificate of Compliance. The statement shall also contain a statement of the actions that Developer and, with respect to the Lot 13 Real Property or any Parcel thereof, Affordable Housing Developer must take to obtain such Certificate of Compliance. The City shall cause each Certificate of Compliance to be Recorded within five (5) Business Days after issuance. 9.8 Effect of Certificate of Compliance; Termination of Agreement. 9.8.1 Termination of Portions of Agreement Upon Recording. Each Certificate of Compliance shall be in such form as to permit it to be Recorded. After Recording by the City of each Certificate of Compliance this Agreement shall terminate as to the Parcel(s) to which such Certificate of Compliance applies and as to the provisions of this Agreement applicable to such Parcel; provided, however, such termination of this Agreement with respect to a Parcel shall not affect the continued applicability of any provisions in the Other Agreements that survive any such Recording of a Certificate of Compliance or the applicability of this Agreement and the Other Agreements to the Parcels for which no Certificate of Compliance has then been issued. 9.8.2 Survival of Certain DDA Provisions. In addition to the matters set forth in the Special Restrictions, the following shall survive the issuance of the Certificate of Tustin TIC DDA 03.11.25 (14M)(3) FINAL 91 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Compliance as to each Parcel and remain in full force and effect for the period set forth in each, and shall be binding upon Developer, its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner of the Property or portion thereof including all End Users, for the benefit of the City and its Governmental Successors, and from and after the Close of Escrow, and shall be binding upon and burden the Real Property, provided that upon sale or transfer to an End User, the obligations set forth in Sections 9.8.2.1 and 9.8.2.3 shall not survive with respect to or bind any End User or any of their respective successors and assigns: 9.8.2.1 The provisions of Section 11.1.4 shall survive until the expiration of the time period for provision of the environmental insurance policy described thereby; and the obligation to provide such insurance policy shall remain in effect as to each Parcel for the applicable period specified in Section 11.1.4 and no Developer, Affordable Housing Developer nor any successor or assign, Successor Owner or Successor Ground Lessee shall modify or terminate any prepaid environmental insurance policy in effect as of the issuance of any Certificate of Compliance; 9.8.2.2 Any and all obligations contained in the Federal Deed shall survive in perpetuity or for such lesser time period as may be expressly set forth therein, unless such obligations are released by the Federal Government; and 9.8.2.3 The provisions of Section 11.1.1 requiring liability insurance shall be maintained in full force and effect as to each Parcel until issuance of the Certificate of Compliance for such Parcel and, subject to the provisions of Section 11.1.1, so long thereafter as necessary to cover any Claims of damages suffered by persons or property prior to Recording by the City of the applicable Certificate of Compliance, resulting from any acts or omissions of Developer, Developer's employees, agents, contractors, suppliers, consultants or other related parties. 9.8.3 Effect of Recording. Upon Recording by the City of any of the aforesaid Certificates of Compliance, any Person then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Real Property released by the applicable Certificate of Compliance shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement with respect to such interests, except that the terms in the Quitclaim Deed, Special Restrictions, Landscape Installation and Maintenance Agreement, Public Access Covenant, the Affordable Housing Declaration, the Development Agreement and the TUSD Assignment which shall each remain in effect for the term specified therein. Issuance of a Certificate of Compliance shall not waive any rights or claims that the City may have against any Person for latent or patent defects in design, construction or similar matters under any applicable law, nor shall it be evidence of satisfaction of any of Developer's obligations to others not a party to this Agreement. 9.8.4 Effect on Guaranty. The Guaranty, as the same may be reaffirmed at each Transfer by a Reaffirmation of Guaranty or at each Lot 13 Transfer by an Affordable Project Reaffirmation of Guaranty, or, if applicable, any alternative security provided by Developer and Tustin TIC DDA 03.11.25 (14M)(3) FINAL 92 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 approved by the City in its sole discretion, shall remain in full force and effect until the Recording by the City of the Final Certificate of Compliance or for such longer period specified in the Guaranty or any reaffirmation thereof. 9.8.5 Survival. Notwithstanding anything to the contrary set forth in this Agreement, the provisions of this Section 9.8 shall survive the termination of this Agreement until the execution and Recording by the City of each Certificate of Compliance and for such longer period as set forth in the Certificate of Compliance. 10. Indemnification and Environmental Provisions. 10.1 Developer's Indemnification for Non -Environmental Matters. As a material part of the consideration for this Agreement and to the maximum extent permitted by law, and subject to the limitations set forth in this Section, Developer on behalf of itself and its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner, but excluding any End Users, hereby agrees to indemnify, protect, defend, assume all responsibility for and hold harmless the City Indemnified Parties from and against any and all Non -Environmental Claims, to the extent (a) caused by the following, or (b) resulting or arising from the following, provided that this Section 10.1 shall not during the period prior to Close of Escrow apply to the matters addressed by Section 5.2: (i) Developer's or Affordable Housing Developer's marketing, sale or use of the Property or construction on the Real Property; (ii) all acts and omissions of Developer and Affordable Housing Developer in connection with the Property, the Market Rate Project, the Affordable Project, the Market Rate Project Improvements, the Affordable Project Improvements and/or any portion of any of the foregoing; (iii) any plans or designs for the Market Rate Project Improvements and/or the Affordable Project Improvements, prepared by or on behalf of Developer or Affordable Housing Developer, including any errors or omissions with respect to such plans or designs; (iv) any loss or damage to the City resulting from any inaccuracy in or breach of any representation or warranty of Developer, or resulting from any Potential Default or Material Default by Developer, under this Agreement, including any such loss or damage resulting from the exercise or breach of the license provided in Section 5.1 or the breach of the obligations of Developer under Section 8.11; (v) the non-performance or breach by Developer, Affordable Housing Developer or the Developer Representatives, of any term or condition of this Agreement or the Other Agreements; Tustin TIC DDA 03.11.25 (HM)(3) FINAL 93 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (vi) any development or construction of the Market Rate Project Improvements, the Affordable Project Improvements and/or other structures or facilities by Developer, any Developer Affiliate, the Developer Representatives, or Affordable Housing Developer, whether regarding the quality, adequacy or suitability of any labor, service, equipment or material furnished to the Real Property, any Person furnishing the same, or otherwise; or (vii) Any Claims in any lawsuits and writ proceedings seeking to make records public that Developer requests the City to protect as confidential pursuant to Section 18.24.3. (viii) Any Claim for penalties for violation of SLA Regulations section 103(c)(7)(C), as such penalties are described in Govt. Code Section 54230.5, arising from an action that occurs after Close of Escrow. Notwithstanding the foregoing, Developer shall not be obligated to indemnify any of the City Indemnified Parties to the extent caused by or arising or resulting directly or indirectly from (A) the gross negligence or willful misconduct or fraud of the City Indemnified Parties, (B) any uncured Material Default by the City with respect to any of the representations or warranties of the City set forth in Sections 3.3 or 18.12.2 or any of the covenants or obligations set forth in this Agreement, in either case provided that the Material Default is directly related to the Claim, or (C) any uncured material default by the City with respect to any of the covenants or obligations set forth in any Other Agreement that is directly related to the Claim. The indemnification provisions in this Section 10.1 shall not apply to Environmental Claims. Developer's indemnification obligations to the City regarding any Environmental Claims are exclusively addressed in Section 10.2. Developer's indemnity obligations under clauses (i),iii), (iv), (v), (vii,) and (viii) of this Section 10.1 shall apply from and after the Effective Date, and Developer's obligations under clauses (ii) and NO of this Section 10.1, shall apply from and after the Close of Escrow. The indemnity obligations in this Section 10.1 shall remain in effect and shall be binding upon the Real Property and each Developer and each Successor Owner (and Affordable Housing Developer and each Successor Ground Lessee with respect to the Affordable Project, Affordable Project Improvements, and the Lot 13 Property) only during the period of each such Person's ownership of any portion of the Real Property (or in the case of Affordable Housing Developer or any Successor Ground Lessee, only during the period it owns a leasehold interest) to the extent of such Person's ownership therein (or in the case of Affordable Housing Developer or any Successor Ground Lessee, its Ground Lease) and for Claims Accruing only during such period, provided that upon any Transfer, if the Transferor is not released pursuant to Section 2.2.5.2, it shall be jointly and severally liable with the Transferee and each Successor Owner thereafter (or transferee Affordable Housing Developer, if applicable) until it is released by the City. Notwithstanding the foregoing, (A) upon issuance of a Certificate of Compliance for a Parcel, the indemnity obligations set forth in this Section 10.1 shall terminate as to any prior unreleased Person that has Transferred the Property other than for matters Accruing during the period in which it was jointly and severally liable pursuant to the preceding sentence and (B) any Person acquiring an interest in a Parcel after Tustin TIC DDA 03.11.25 (14M)(3) FINAL 94 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Recording by the City of a Certificate of Compliance for such Parcel shall be liable under this Section 10.1 for Non -Environmental Claims Accruing during its period of ownership (or in the case of Affordable Housing Developer, its lease) of such Parcel or portion thereof. Notwithstanding the foregoing or any other provision of this Agreement, following Recording by the City of the Final Certificate of Compliance (a) the indemnity, defense and hold harmless provisions of Section 10.1(viii) shall remain in full force and effect until termination of the Special Restrictions as to the whole of the Real Property, but shall not run with the land and shall instead continue as a personal and ongoing obligation of the Person that is the Developer under this Agreement at the time of Recording of the Final Certificate of Compliance and (b) shall be Guaranteed by the Guarantor under the Guaranty until termination of the Special Restrictions as to the whole of the Real Property. The provisions of this Section 10.1 and Sections 10.3 through 10.9 as they pertain to non - Environmental Claims shall be included in the Special Restrictions, shall run with the land as set forth in this Agreement and the Special Restrictions in accordance with their terms, and shall survive termination of this Agreement, the Close of Escrow, and the execution and Recording by the City of each Certificate of Compliance, shall not merge with any deed and shall be binding upon Developer, each Affordable Housing Developer, each Successor Owner and each Successor Ground Lessee of the Property or portion thereof, for the benefit of the City and its Governmental Successors, and from and after the Close of Escrow, and shall be binding upon and burden the Real Property provided, however, that upon sale or transfer of the fee interest in the Real Property or any portion thereof to an End User, the provisions of such Section terminate automatically as to such End User and shall cease to run with the land acquired in fee by such End User or any of its respective successors and assigns. 10.2 Environmental Indemnity. As a material part of the consideration for this Agreement, and effective as of the Close of Escrow and subject to the limitations set forth below in this Section 10.2, Developer on behalf of itself and its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner, but excluding any End Users, hereby agrees that Developer, Affordable Housing Developer (as and to the extent of Affordable Housing Developer's interests as described below) and each Successor Owner shall, to the maximum extent permitted by law, indemnify, protect, defend, assume all responsibility for and hold harmless the City Indemnified Parties from and against any and all Claims to the extent caused by, or arising or resulting directly or indirectly from or in any way connected with the existence, Release, threatened Release, presence, storage, treatment, transportation and/or disposal of any Hazardous Materials on, in or under the Development Parcels, or migrating from the Development Parcels to adjacent properties (until the applicable Environmental Agency or court or arbiter having jurisdiction has determined that it is more likely than not that the Hazardous Materials at issue were not sourced from the Development Parcels) regardless of whether any such condition is known or unknown now or upon acquisition and, except as set forth below in this Section 10.2, regardless of whether any such condition pre-exists acquisition or is subsequently caused, created or occurring ("Environmental Claims"); provided that neither Developer, nor Affordable Housing Developer nor any Successor Owner shall be responsible (and such indemnity shall not Tustin TIC DDA 03.11.25 (14M)(3) FINAL 95 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 apply) to the extent caused by or arising or resulting directly or indirectly from (i) any uncured Material Default by the City with respect to any of the representations or warranties of the City set forth in Sections 3.3 or 18.12.2 or any of the covenants or obligations set forth in this Agreement, in either case provided that the Material Default is directly related to the Claim, or (ii) the Active Negligence, willful misconduct or fraud of the City or any City Indemnified Party with respect to Hazardous Materials Releases occurring prior to the Close of Escrow with respect to work performed by such Persons on the Development Parcels. This indemnity shall not be deemed to limit in any manner the rights and/or remedies that City, Developer or Successor Owners may have against the Federal Government as described in Section 4.1 or other non -City Indemnified Parties, provided that under no circumstances may such Claims be pursued (and all such Claims are waived and released) against any City Indemnified Parties, and each of them. Subject to the limitations set forth below in this Section, the indemnity set forth in this Section 10.2 and the requirements of Sections 10.4 through 10.9 as they pertain to Environmental Claims shall be included in the Special Restrictions in accordance with its terms and shall run with the land as set forth in this Agreement and in the Special Restrictions and shall survive termination of this Agreement, the Close of Escrow, and the execution and Recording by the City of each Certificate of Compliance, shall not merge with any deed and shall, for the benefit of the City and its Governmental Successors, be binding upon the Real Property and each Developer and each Successor Owner (and Affordable Housing Developer and each transferee of Affordable Housing Developer with respect to the Affordable Project, Affordable Project Improvements, and the Lot 13 Property), unless such Person is released by the City in writing pursuant to Section 2.2.5.2 or is released pursuant to the terms set forth below in this Section 10.2. Developer, with respect to the entirety of the Real Property, each of its Successor Owners with respect to each Parcel owned by it, and, Affordable Housing Developer with respect to the Affordable Project, Affordable Project Improvements, and the Lot 13 Property only, shall be jointly and severally liable with respect to Environmental Claims affecting such Parcel(s) notwithstanding any Transfer of such Parcel(s) or the issuance of a Certificate of Compliance with respect thereto, except that each shall be released for Environmental Matters related to a Parcel arising subsequent to its ownership of such Parcel: (x) if prior to Recording of a Certificate of Compliance for any Parcel, Developer or Successor Owner is released pursuant to Section 2.2.5 (and for avoidance of doubt, if not so released, remains jointly and severally liable with each Successor Owner of such Parcel); or (y) following Recording of a Certificate of Compliance for such Parcel, other than for Environmental Claims related to Releases caused by its own acts or omissions for which each shall remain liable. Notwithstanding the foregoing, upon Transfer of the fee interest in the Real Property or any portion thereof to an End User, such indemnities shall terminate automatically as to such End User and shall cease to run with the land acquired in fee by such End User or any of its respective successors and assigns. Upon assignment by any Affordable Housing Developer of its remaining Tustin TIC DDA 03.11.25 (HM)(3) FINAL 96 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 leasehold interest in a Ground Lease (in accordance with the terms of this Agreement when such terms of this Agreement are in effect as to the applicable Parcel, and in all instances in accordance with such Ground Lease), such Affordable Housing Developer shall be released for Environmental Matters arising subsequent to its assignment (A) if prior to issuance of the applicable Affordable Project Certificate of Compliance, if it is released pursuant to the assignment provisions of the Approved Ground Lease (for avoidance of doubt, if it is not released, it remains jointly and severally liable with each successor Ground Lessee) or (B) following Certificate of Compliance, with the exception of Environmental Claims related to Releases caused by its own acts or omissions for which each shall remain liable. 10.3 Effect of Recording of Special Restrictions. The provisions of Sections 10.1 throu_h.9 shall be included in the Special Restrictions and shall remain in effect in accordance with their terms; provided, however, that following Recording of the Special Restrictions, the provisions in each such Section of this Agreement shall not be interpreted more broadly than, nor be applied in addition to, nor be deemed to increase the obligations of Developer in the counterpart provisions in the Special Restrictions. Without limiting the foregoing, in the event any conflict arises during the Term of this Agreement between the provisions in each such Section of this Agreement and the counterpart provisions in the Special Restrictions, the provisions in each such Section of this Agreement shall control. Wherever the term "Developer" is used in this Article 10, and whether or not expressly stated in any Section of this Article 10, it shall mean and include Affordable Housing Developer with respect to the Affordable Project Provisions during any period in which such Affordable Housing Developer is a Ground Lessee under a Ground Lease and shall apply with respect to the portion of the Lot 13 Property leased pursuant to such Ground Lease and shall apply to each Successor Ground Lessee and where conveyance by Developer is described, the same shall include assignment by Affordable Housing Developer of its leasehold interest in any Ground Lease. Nothing herein shall be deemed to create any liability of Affordable Housing Developer, Ground Lessee or any Successor Ground Lessee with respect to the Market Rate Property and/or the Market Rate Project unless it shall become the Owner thereof or hold another interest therein. 10.4 Claim Response. In the event that following Close of Escrow, any Environmental Agency or other third parry brings, makes, alleges, or asserts a Claim, arising or resulting directly or indirectly from or related to any actual, threatened, or suspected presence or Release_of Hazardous Materials on or about the Real Property (and regardless of whether there has been a further conveyance by Developer), including any Claim for Investigation or Remediation on the Development Parcels, or such Environmental Agency or other third party orders, demands, or otherwise requires that any Investigation or Remediation be conducted on the Development Parcels, Developer, Affordable Housing Developer (or Successor Owner or Successor Ground Lessee at the time such Claim is asserted) shall promptly upon its receipt of notice thereof, notify the City in writing and thereafter shall promptly and responsibly evaluate and respond to such Claim as provided in Section 10.5. Further, upon receipt of such Claim, order, demand or requirement, Developer, Affordable Housing Developer (or Successor Owner or Successor Ground Lessee at the time such Claim is Tustin TIC DDA 03.11.25 (14M)(3) FINAL 97 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 asserted) shall take such reasonable measures, as necessary or appropriate, to reasonably attempt to dissuade such Environmental Agency or other third party from bringing, making, alleging, or asserting any Claim against the City arising from or resulting directly or indirectly from or related to the presence or any actual, threatened, or suspected Release of Hazardous Material on or about the Development Parcels, including any Claim for Investigation or Remediation on the Development Parcels, the Market Rate Project Improvements or the Affordable Project Improvements, provided, however, that Developer, Affordable Housing Developer (or Successor Owner or Successor Ground Lessee at the time such Claim is asserted) shall have no obligation pursuant to this sentence with respect to any Claim, order, demand or requirement arising from or resulting directly or indirectly from or related to any actual, threatened or suspected Release of Hazardous Material to the extent caused by the Active Negligence, willful misconduct or fraud of the City Indemnified Parties, and further provided that any environmental response action approved by the applicable Environmental Agency or Environmental Agencies with jurisdiction shall be deemed acceptable and binding upon Developer, Affordable Housing Developer and each Successor Owner or Successor Ground Lessee and the City without modification or amendment, and such Environmental Agency or Environmental Agencies shall be the sole and exclusive Government Authority with jurisdiction over the Investigation and Remediation of any such Release and any Hazardous Material involved therewith. For avoidance of doubt, the obligations under this Section 10.4 apply only to the extent an obligation arises under either Section 10.1 or Section 10.2. 10.5 Release Notification and Remedial Actions. If, after Close of Escrow, any Release of a Hazardous Material is discovered on the Development Parcels, Developer, Affordable Housing Developer (or Successor Owner or Successor Ground Lessee at the time of discovery of such Release) shall promptly provide written notice (or in the event of emergency, telephonic notice, followed by written notice) of any such Release to the City. To the extent that any Environmental Agency (other than the City) is requiring that the City Remediate such Release and Developer, Affordable Housing Developer or Successor Owner or Successor Ground Lessee (as applicable) acknowledges that it is obligated to assume responsibility or indemnify the City with respect to such Release pursuant to Section 10.2 or there is a good faith dispute between the City and Developer, Affordable Housing Developer, Successor Owner or Successor Ground Lessee (as applicable) as to whether Developer, Affordable Housing Developer, Successor Owner or Successor Ground Lessee (as applicable) is obligated to assume responsibility or indemnify the City with respect to such Release pursuant to Section 10.2, then Developer or Successor Owner (as applicable) shall (i) Remediate the Release in compliance with and to the extent required by Environmental Laws and such Environmental Agency, or if such removal is prohibited by any Environmental Laws, take whatever action is required by any Environmental Law and such Environmental Agency; provided, however, that any environmental response action approved by the applicable Environmental Agency or Environmental Agencies with jurisdiction shall be deemed acceptable and binding upon Developer, Affordable Housing Developer (or Successor Owner or Successor Ground Lessee at the time such Claim is asserted) and the City without modification or amendment, and such Environmental Agency or Environmental Agencies shall be the sole and exclusive Government Authority with jurisdiction over the Investigation and Remediation of any such Release and any Hazardous Material involved Tustin TIC DDA 03.11.25 (14M)(3) FINAL 98 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 therewith; (ii) take such other reasonable action as is necessary to have the full use and benefit of the Development Parcels as contemplated by this Agreement; and (c) provide the City with satisfactory evidence of the actions taken as required in this Section 10.5. To the extent that any Environmental Agency (other than the City) is requiring that the City Remediate such Release and the City acknowledges that Developer, Affordable Housing Developer, any Successor Owner and any Successor Ground Lessee are not obligated to assume responsibility or indemnify the City with respect to such Release pursuant to Section 10.2 or no Environmental Agency (other than the City) is requiring that the City Remediate such Release, then (as between Developer, Affordable Housing Developer, such Successor Owner or such Successor Ground Lessee as applicable and the City under this Agreement) Developer, Affordable Housing Developer, Successor Owner or Successor Ground Lessee (as applicable) may elect in its sole discretion whether to Remediate such Release and/or pursue any rights that it has against any Person with respect to such Release. The foregoing shall be without prejudice to Developer's, Affordable Housing Developer's (or any Successor Owner's or Successor Ground Lessee's, as applicable) or the City's rights against any responsible party or against the Federal Government pursuant to the Navy Responsibilities and without compromising the applicability of any insurance coverage in regard to such Release. The City and Developer, Affordable Housing Developer (or any Successor Owner or Successor Ground Lessee, as applicable) will coordinate any action required under this Section 10.5 with appropriate environmental insurance carriers so as not to compromise coverage for the costs of such actions. Nothing set forth in this Agreement requires Developer, Affordable Housing Developer, any Successor Owner or any Successor Ground Lessee to perform any obligation of the Federal Government or shall be deemed to limit or impair (or require any action that might limit or impair) in any manner the rights and/or remedies that Developer, Affordable Housing Developer (or any Successor Owner or any Successor Ground Lessee, as applicable) or the City may have against the Federal Government or any other third party. The provisions of Sections 10.4 and 10.5 shall not apply to any Repurchase Property after the close of escrow pursuant to Section 16.3 or to any Reversion Property following a Reversion Event. For avoidance of doubt, the obligations under this Section 10.5 apply to the Person (i.e., Developer, Affordable Housing Developer, Successor Owner or Successor Ground Lessee) that is the Owner or Ground Lessee of the applicable Parcel when the Release occurs and only to the extent an obligation arises under either Section 10.1 or Section 10.2. 10.6 Conflict with Section 330 and Other Federal Government Obligations. Notwithstanding anything to the contrary contained in this Article 10, in the event that any actions required to be taken by Developer pursuant to this Article 10 could potentially result in Developer losing rights, or are contrary to any rights, which it otherwise would have pursuant to the Navy Responsibilities or otherwise against the Federal Government, then the City and Developer shall meet in order to determine the proper course of action to be taken by Developer. The course of action to be agreed upon shall protect the City's interest in the Market Rate Project, the Affordable Project and Tustin Legacy, while retaining for Developer its rights pursuant to the Navy Responsibilities or otherwise against the Federal Government to the extent reasonable under the circumstances. Notwithstanding the foregoing, nothing set forth in this Section 10.6 relieves Developer, Affordable Housing Developer or any Successor Owner with respect to the Tustin TIC DDA 03.11.25 (14M)(3) FINAL 99 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 environmental responsibilities and obligations to, and/or environmental indemnification of the City in this Agreement. 10.7 Insurance and Indemnification. Notwithstanding anything contained in and without limiting or relieving Developer, Affordable Housing Developer, any Successor Owner or any Successor Ground Lessee of its obligations under this Agreement, the City agrees that with respect to any Claims tendered by any one or more of the City Indemnified Parties under this Agreement for which Developer, Affordable Housing Developer, any Successor Owner or any Successor Ground Lessee has the obligation to indemnify the City pursuant to the terms of this Agreement, the City Indemnified Parties shall seek recourse for such Claims under Developer's or Affordable Housing Developer's or such Successor Owner's or Successor Ground Lessee's, if applicable, insurance coverage required by Article 11, in each case only to the extent such insurance could reasonably be determined to be applicable to the type, extent, value and location of the Claim being made. The City shall thereafter use reasonable commercial efforts to prosecute its Claim for coverage with such insurer(s) and shall notify Developer (and may, but shall not be obligated to notify Affordable Housing Developer or any Successor Ground Lessee) of the City's tender of its Claim to such insurer(s). Developer, Affordable Housing Developer, or Successor Owner or Successor Ground Lessee, if applicable, shall reimburse the City for its reasonable costs incurred in complying with this Section 10.7, including reasonable out-of-pocket consultant costs and reasonable attorney fees. To the extent that insurance is determined by the City not to be applicable to the Claim or, if after six (6) months from tender of the Claim to the insurer, despite such efforts, insurance proceeds are not available to cover all or a portion of the Claim or if such Claim is earlier denied by the insurance carrier, then Developer or Successor Owner, if applicable, shall or shall cause Affordable Housing Developer or Successor Ground Lessee, if applicable (if and to the extent Affordable Housing Developer or Successor Ground Lessee has such obligation pursuant to the requirements of this Article 10) to defend and indemnify the City Indemnified Parties for the full amount of the Claim not covered by the insurance, including but not limited to sums theretofore expended by the City Indemnified Parties defending such Claim, but only to the extent Developer has such obligations in this Agreement or Affordable Housing Developer has such obligations pursuant to the requirements of this Article 10. If an insurer(s) to which a Claim is tendered declines to defend, or fails to timely defend, the Claim within the six (6) month period described above, then Developer shall and shall cause Affordable Housing Developer to defend and indemnify the City Indemnified Parties for the full amount of the Claim not covered by the insurance, including but not limited to sums theretofore expended by the City Indemnified Parties defending such Claim, but only to the extent Developer has such obligations in this Agreement or Affordable Housing Developer has such obligations pursuant to the requirements of this Article 10. At any time after six (6) months have passed since the original tender of a Claim to an insurer by the City as described herein if the insurer has not paid out on all or part of the insurance claim, Developer or Affordable Housing Developer in its sole discretion may decide to pay for the legal fees and expenses associated with filing and prosecuting litigation against such insurance carrier. If Developer or Affordable Housing Developer decides to pay such legal fees and expenses, the City shall proceed with such litigation at Developer's or Affordable Housing Developer's expense as further set forth below. Any fees and expenses of such litigation will be borne by Developer or Affordable Housing Developer (if Tustin TIC DDA 03.11.25 (14M)(3) FINAL 100 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 and to the extent Affordable Housing Developer has such obligation pursuant to the requirements of this Article 10). For avoidance of doubt, the obligations under this Section 10.7 apply only to the extent an obligation arises under either Section 10.1 or Section 10.2. 10.8 Selection of Counsel and Defense Obligations. A Person being defended pursuant to this Article 10 ("Defended Party") shall select legal counsel of its choice and reasonably acceptable to the Person with the obligation to defend ("Defending Party") and shall cooperate in the defense of any such action. Failure of the Defended Parry to notify the Defending Parry promptly of the filing of any Claim or Action shall offset the indemnification obligations of the Defending Party only to the extent of any prejudice to the Defended Parry caused by such failure to notify. 10.9 Settlement Procedures. No Defending Party or Defended Parry shall settle any Claim or Action that is the subject of an indemnity or obligation to defend under this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld, conditioned or delayed. 11. Insurance. 11.1 Required Insurance. Without limiting the City's rights to indemnification, Developer (with respect to the Market Rate Real Property, and with respect to the entire Real Property prior to the Lot 13 Transfer) or Affordable Housing Developer (with respect to the Lot 13 Real Property upon the Lot 13 Transfer) shall procure and maintain or cause to be procured and maintained, at its own cost and expense, and furnish or cause to be furnished to the City, evidence of the following policies of insurance (complying with the requirements set forth below) naming Developer or Affordable Housing Developer (as applicable) as insured and, with respect to the general liability and environmental liability insurance required pursuant to Sections 11.1.1 and 11.1.4 only, including as additional insureds the City and the City's additional insureds specified below. All endorsements to the policies required to be procured by Developer in this Article 11 shall also be procured by Affordable Housing Developer with respect to the policies required to be provided by Affordable Housing Developer with respect to the Lot 13 Real Property upon the Lot 13 Transfer. Unless otherwise specified below, all insurance required below shall be in place or obtained by Developer (as to the Market Rate Property, and with respect to the entire Real Property prior to the Lot 13 Transfer) and Affordable Housing Developer (as to the Lot 13 Real Property upon the Lot 13 Transfer) upon the date specified below and shall be kept in force with respect to each such component of the applicable Development Parcels, the Market Rate Project, the Affordable Project, the Market Rate Project Improvements and/or the Affordable Project Improvements until issuance of the Certificate of Compliance with respect thereto or for such longer period to the extent described below. Subject to the provisions of this Article 11, the insurance obligations under this Agreement shall be the minimum insurance coverage requirements and/or limits shown in this Article 11. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of Developer or Affordable Housing Developer, as Tustin TIC DDA 03.11.25 (14M)(3) FINAL 101 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 applicable, under this Agreement. 11.1.1 Liability Insurance. Commencing upon the Effective Date, Developer shall maintain or cause to be maintained commercial general liability insurance and automobile liability insurance, to protect against insurable loss from liability imposed by law for damages on account of personal injury, including death therefrom, suffered or alleged to be suffered by any Person or Persons whomsoever on or about the Real Property, the Market Rate Project, the Affordable Project, Market Rate Project Improvements and/or the Affordable Project Improvements and the business of Developer on the Real Property, or in connection with the operation thereof, resulting directly or indirectly from any acts or activities of Developer or anyone directly or indirectly employed or contracted with or acting for Developer, or under its respective control or direction, and also to protect against loss from liability imposed by law for damages to any property of any Person occurring on or about the Real Property, the Market Rate Project, the Affordable Project, the Market Rate Project Improvements and/or the Affordable Project Improvements or related to the Market Rate Project, the Affordable Project and/or the business of Developer on the Real Property, or in connection with the operation thereof, caused directly or indirectly by or from acts or activities of Developer or any Person acting for Developer, or under its control or direction. Such insurance shall also provide for and protect the City against incurring any legal cost (of legal counsel acceptable to Developer's or Affordable Housing Developer's insurer(s)) in defending Claims for alleged loss. Such insurance shall be maintained in full force and effect with respect to each of the Market Rate Project and the Affordable Project until issuance of a Certificate of Compliance therefor, and for so long thereafter as necessary to cover any claims of damages suffered by persons or property prior to issuance of the applicable Certificate of Compliance, resulting from any acts or omissions of Developer, Developer's employees, agents, contractors, suppliers, consultants or other related parties, as further set forth in Section 9.8 and Article 10. The amount of insurance required shall include comprehensive general liability and personal injury with limits of at least Ten Million Dollars ($10,000,000.00) each occurrence and annual policy aggregate and automobile liability with limits of at least Five Million Dollars ($5,000,000.00) combined single limit per occurrence. The insurance shall be issued by a company authorized by the Insurance Department of the state of California to do business in California and rated A-NII or better by the latest edition of Best's Key Rating Guide (`Best's"). Such insurance may be provided in part by an umbrella or excess insurance policy meeting the requirements of this Article 11, including the endorsements set forth in the following paragraph. ACORD certificates and endorsements signed by authorized representative(s) of the underwriter (or copies of the applicable pages from the policy if the applicable endorsement coverage is part of the policy rather than provided by separate endorsement) and reasonably approved by the City shall be delivered as soon as reasonably possible but in no event later than within thirty (30) Business Days following the Effective Date and in all events prior to access by Developer or Developer Representatives upon the Real Property pursuant to Section 5.1 and annually thereafter evidencing renewals of each policy until issuance of the Final Certificate of Compliance. The endorsements shall provide as follows: (i) designate "the City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency and their respective elected and appointed officials, agents, representatives and employees", as additional insureds on the commercial general liability policies and automobile liability policies; (ii) the commercial general Tustin TIC DDA 03.11.25 (14M)(3) FINAL 102 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 liability and automobile liability insurance coverages shall be primary, and not contribute with any insurance maintained by the City; and (iii) a waiver of subrogation for the benefit of "the City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency and their respective elected and appointed officials, agents, representatives and employees". "Blanket" endorsements (or coverage within the policy itself) providing the same protection as required by written contract shall be acceptable to the City. The procuring of such insurance and the delivery of policies, certificates or endorsements evidencing the same shall not be construed as a limitation of Developer's obligation to indemnify the City Indemnified Parties as set forth in this Agreement. 11.1.2 Workers' Compensation Insurance. Commencing upon the Effective Date, in the event the Developer entity has employees, Developer shall obtain, and thereafter maintain or cause to be maintained, workers' compensation insurance issued by a responsible carrier authorized under the laws of California to insure employers against liability for compensation under the workers' compensation laws now in force in California, or any laws hereafter enacted as an amendment or supplement thereto or in lieu thereof. Such workers' compensation insurance shall cover all Persons employed by Developer in connection with the Market Rate Project and the Affordable Project and shall cover liability within statutory limits for compensation under any such act aforesaid, based upon death or bodily injury claims made by, for or on behalf of any employee of Developer incurring or suffering injury or death in connection with the Market Rate Project and the Affordable Project or the construction and operation thereof by Developer. Notwithstanding the foregoing, Developer may, in compliance with the laws of California and in lieu of maintaining such insurance, self -insure for workers' compensation in which event Developer shall deliver to the City evidence that such self-insurance has been approved by the appropriate State authorities. Developer shall also furnish (or cause to be furnished) to the City evidence satisfactory to the City that any contractor with whom it has contracted for performance of work on the Real Property or otherwise pursuant to this Agreement carries workers' compensation insurance required by law. Policies or an ACORD certificate of insurance may be provided as evidence of the existence of insurance policies and their limits, but actual endorsements (or copies of the applicable pages from the policy if the coverage is part of the policy) are required to be provided to the City to evidence that each endorsement requirement has been satisfied. The insurance policy(ies), by endorsement signed by an authorized representative of the underwriter(s), shall contain a waiver of subrogation for the benefit of the following additional insureds: "the City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective elected and appointed officials, agents, representatives and employees". A "blanket" endorsement providing the same protection as required by written contract shall be acceptable to the City. The insurance provided for under this Section 11.1.2 shall be issued by a company rated B-NIII or better by Best's or from the state of California Compensation Fund. 11.1.3 Builder's Risk Insurance. Commencing upon the commencement of construction of Vertical Improvements by Developer of any Market Rate Project Improvements, or by Affordable Housing Developer of any Affordable Project Improvements, and continuing until the issuance of a final certificate of occupancy therefor and for such longer period as work on the Project Improvements is continuing on the Parcel, Developer or Affordable Housing Developer, as applicable, shall obtain, or shall cause its contractor to obtain, and thereafter Tustin TIC DDA 03.11.25 (14M)(3) FINAL 103 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 maintain a builder's risk policy with respect to Vertical Improvements constructed on the applicable Parcels, or maintain comparable coverage through a property policy. Such insurance shall be maintained in an amount not less than one hundred percent (100%) of the full insurable value of the Market Rate Project Improvements and the Affordable Project Improvements, as applicable, to be constructed on the Real Property or in connection with developing the Market Rate Project and/or the Affordable Project. The insurance provided for under this Section 11.1.3 shall be provided by insurer(s) authorized to do business in California and with a Best's rating of A-/VII or better. 11.1.4 Environmental Insurance. On or before the Close of Escrow, Developer (as to the entire Real Property) shall obtain, or shall require its Contractor to obtain, and shall thereafter maintain environmental and pollution legal liability insurance coverage for the applicable Development Parcels, including coverage for loss, remediation expense and legal defense expenses, and including "the City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency and their respective elected and appointed officials, agents, representatives and employees" as additional insureds to address pollution risks at the Development Parcels ("PLL Policy"). As used in this Agreement, "PLL Policy" shall mean the individual or multiple policies that, taken together, meet the requirements set forth below. The PLL Policy shall comply with the following minimum requirements, subject to the provisions of the last paragraph of this Section 11.1.4: (i) The PLL Policy shall be written by the insurance company selected by Developer and approved by the City, which approval shall not be unreasonably withheld, and which insurer(s) shall have a Best's rating of A-/VII or better; (ii) The PLL Policy shall not exclude coverage for activities of the Affordable Housing Developer; (iii) The PLL Policy shall provide at least (A) limits of Ten Million Dollars ($10,000,000.00) in aggregate coverage for and with at least Ten Million Dollars ($10,000,000.00) per claim, subject to a maximum One Million Dollars ($1,000,000.00) deductible per claim, (B) coverage to protect against Claims and loss from insured liability relating to known and unknown conditions on the Development Parcels, and (C) for a term commencing upon the earlier of (1) commencement of any invasive testing or grading or construction work upon the Real Property or (2) the Close of Escrow and continuing in effect for a period of ten (10) years; (iv) The full policy premium for the PLL Policy shall be paid for in full at the time of issuance and shall contain a waiver of subrogation for the benefit of the City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency and their respective elected and appointed officials, agents, representatives and employees. The unwillingness of an insurance company to provide a waiver of subrogation for the benefit of the City Indemnified Parties shall Tustin TIC DDA 03.11.25 (14M)(3) FINAL 104 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 be a reasonable basis for the City to withhold approval of the insurance company under Section 11.1.4(i); (v) The obligation of Developer to maintain the PLL Policy pursuant to this Section 11.1.4 shall survive the termination of this Agreement following the Close of Escrow for the term required for the PLL Policy pursuant to Section 11.1.4(iii); (vi) The PLL Policy shall include "the City and the Successor Agency to the Tustin Community Redevelopment Agency and their respective elected and appointed officials, agents, representatives and employees" as additional insureds with respect to the PLL Policy Developer acquires for the Development Parcels or any portion thereof and to the extent the PLL Policy is prepaid, shall not modify or terminate the PLL Policy following the termination of this Agreement; (vii) Subject to insurer consent, the PLL Policy shall permit (by the terms of the policy or by endorsement) transfer of the policy to Successor Owners and successors and assigns of Developer or Affordable Housing Developer, as applicable, (but excluding any End Users) and/or to the City, and if the City should reacquire the Real Property or any portion thereof following the Close of Escrow, Developer shall transfer the PLL policy to the City with respect to the portion of the Real Property acquired by the City. It is the mutual intent and agreement of the Parties that the PLL Policy shall be substantially in the form and substance of the specimen policy set forth in Attachment 26 and with the addition of the insertion of this Agreement and the Other Agreements as insured agreements in the Schedule of Insured Contracts therein (the "Specimen PLL Policy") If the draft PLL Policy does not meet the minimum requirements set forth above and is different from the Specimen PLL Policy, and, if the draft PLL Policy is approved by the City in its sole discretion, then such approved PLL Policy shall control and be the PLL Policy for purposes of this Section even if it does not meet the minimum requirements set forth above. Subject to the foregoing, in the event a PLL Policy substantially in the form and substance of the Specimen PLL Policy is not commercially available at the time required to be obtained or maintained by Developer hereunder, the Parties shall promptly meet and confer pursuant to Section 11.2.5. Except as approved by the City in writing, neither Developer nor Affordable Housing Developer shall carry out any environmental testing, sampling, invasive testing, or boring on the Development Parcels prior to the effective date of the PLL Policy applicable to such Development Parcel. The provisions of this Section 11.1.4 shall survive the termination of this Agreement. 11.2 General Insurance Requirements. 11.2.1 For all policies or certificates, the insurer endorsements (or a copy of the policy binder, if applicable) shall specifically identify the Market Rate Project or the Affordable Project address, as applicable, and shall provide evidence that Developer has paid for its premium in full for any policy that is currently in place. Developer's and Affordable Housing Tustin TIC DDA 03.11.25 (14M)(3) FINAL 105 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Developer's insurance broker shall confirm in writing that premium payments are in compliance with the insurance policy(ies) payment terms. 11.2.2 The term "full insurable value" as used in this Article 11 shall mean the cost determined by Developer or Affordable Housing Developer (excluding the cost of excavation, foundation, underground utilities, and footings below the lowest floor and without deduction for depreciation) of providing similar Market Rate Project Improvements and Affordable Project Improvements of equal size and providing the same habitability as the Market Rate Project Improvements and the Affordable Project Improvements, as applicable, immediately before such casualty or other loss, but using readily -available contemporary components, including the cost of construction, architectural and engineering fees, and inspection and supervision, but in no event less than the value set forth in the Updated Financing Plan for the Market Rate Project and Affordable Project, as applicable. 11.2.3 All insurance provided under this Article 11 shall be for the benefit of the Parties. Developer shall, and shall cause each Insured Parry, (A) to timely pay all premiums for such insurance and, at its sole cost and expense, to comply and secure compliance with all insurance requirements necessary for the maintenance of such insurance, and (B) with respect to coverage required by Sections 11.1.1 and 11.1.2, to submit certificates evidencing such insurance to the City on an ACORD form following City Council approval of this Agreement or, with respect to coverage required by Section 11.1.4. upon the Close of Escrow and with respect to coverage required by Section 11.1.3, upon commencement of construction. Within seven (7) Business Days, if practicable, after expiration of any such policy, certificates evidencing renewal policies (and all required endorsements) shall be submitted to the City, together with evidence of compliance with insurance policy(ies) premium payment terms. 11.2.4 Subject to Section 11.2.5. if Developer fails to procure or to cause any Insured Party to procure and maintain insurance as required by this Agreement, the City shall have the right, at the City's election, and upon ten (10) Business Days' prior written notice to Developer, to procure and maintain such insurance. The premiums paid by the City shall be treated as a loan, due from Developer, to be paid on the first calendar day of the month following the date on which the premiums were paid and such cost, until paid, shall constitute a City Lien on the Real Property and improvements thereon, including the Market Rate Project Improvements and Affordable Project Improvements, as applicable. The City shall give prompt notice of the payment of such premiums, stating the amounts paid and the name of the insured(s). 11.2.5 In the event the PLL Policy or any other policy of insurance required hereunder is not then commercially available, the Parties shall promptly meet and confer in good faith to seek to resolve such issue and to facilitate the securing by Developer of a mutually acceptable policy. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 106 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 12. Covenants and Restrictions. 12.1 Covenants Run With the Land. This Agreement and all other obligations, agreements, covenants, representations, warranties, and indemnities set forth in this Agreement shall run with the land and shall be binding upon each Developer, its successors and assigns, each Successor Owner and each Person claiming by, through or under Developer or such Successor Owner, but excluding any End Users, to which such obligations, agreements, covenants, representations, warranties, and indemnities apply to the extent set forth in this Agreement and shall be enforceable as equitable servitudes against the Real Property for the benefit of the City and its successors and assigns for the applicable term with respect to each Parcel thereof, subject to the effects of Recording by the City of a Certificate of Compliance as provided in Article 9 and subject to any other limitations set forth in this Agreement or in any of the Other Agreements. After the Recording by the City of a Certificate of Compliance with respect to a Parcel, the allocation of responsibility and liability between the applicable Owner and any Ground Lessee on such Parcel for obligations under the Other Agreements shall be as set forth in the applicable Other Agreement. 12.2 Obligation to Refrain from Discrimination. Developer covenants and agrees on behalf of itself, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner, including each End User, that there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or in development of the Market Rate Project or the Affordable Project, nor shall Developer or any Person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property or in development of the Market Rate Project or the Affordable Project or any part thereof. 12.3 Use Covenant. Developer shall cause the Real Property to be developed only for lawful residential uses and ancillary commercial amenity uses in accordance with this Agreement and the Other Agreements. 12.4 Public Access Covenant. At the Close of Escrow there shall be Recorded against the Property a non-exclusive perpetual easement in gross for public access in, over, along, through, upon and across the Publicly Accessible Common Area located within the Real Property as depicted on Attachment 13A and the related Publicly Accessible Common Area Improvements, and to and from the adjoining public streets and sidewalks in substantially the form and substance of the Public Access Covenant attached as Attachment 13C. For all purposes under this Agreement, the Owner of "Lot 1" as shown on the Tentative Tract Map, which is a portion of Lot 11, shall be deemed to be the Owner Tustin TIC DDA 03.11.25 (14M)(3) FINAL 107 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 of "Lot A" as shown on the Tentative Tract Map, as such lots may be modified by the Developer Final Tract Map, and the "Parcel" owned by such Owner of "Lot 1" shall be deemed to include "Lot A". 13. Affordable Proiect Reauirements. 13.1 Lot 13 PDA, Ground Lease Option, Approved Ground Lease Form and Approved Ground Lease. 13.1.1 Approved Ground Lease. This Agreement contemplates that development of Lot 13 with the Affordable Project Improvements will be carried out by an Affordable Housing Developer approved by the City pursuant to Section 1.4.3 following an Affordable Project Closing at which Developer shall, among other things, ground lease the Lot 13 Property to Affordable Housing Developer by as many as two instruments in substantially the form and substance of the Approved Ground Lease Form (each such instrument is referred to as an "Approved Ground Lease"), with such modifications as may be approved by the City pursuant to Section 13.2.2. Developer shall have the right to replace USA Properties with an Approved Alternate Affordable Housing Developer or another Affordable Housing Developer approved by the City in its sole discretion or, in lieu of a Lot 13 Transfer, to pursue an Alternative Affordable Project Development Plan in accordance with Sections 4.7.1 and 4.8. 13.1.2 Affordable Proiect Provisions. The Lot 13 PDA and the Approved Ground Lease shall establish the Affordable Project Provisions to be performed by Affordable Housing Developer and shall require performance within the time periods specified in the Schedule of Performance and this Agreement and otherwise in accordance with the terms of this Agreement and the Other Agreements. 13.1.3 Affordable Housing Declaration, Lower Income Unit Obligations. The Affordable Project shall be constructed consistent with the Affordable Housing Declaration and upon Completion of each Building on Lot 13, all Residential Units constructed thereon, excluding the authorized number of manager/staff units in each Building as shown on the Approved Plans, shall be Lower Income Units and shall be made available for rental only to Lower Income Households, for the term set forth in, and otherwise in accordance with, the Affordable Housing Declaration. 13.2 Lot 13 PDA, Ground Lease Option and Approved Ground Lease. 13.2.1 No Release; Affordable Proiect Enforcement Obligations. Under the terms of the Lot 13 PDA, and upon execution thereof, the Approved Ground Lease, Developer has delegated and will further delegate the Affordable Project Provisions to Affordable Housing Developer. Neither the delegation of the Affordable Project Provisions to the Affordable Housing Developer nor entering into the Lot 13 PDA, the Ground Lease Option or the Approved Ground Lease, constitutes a release by the City of Developer and its successors and assigns that are designated as Developer pursuant to this Agreement from timely performance of (i) the Affordable Project Obligations, including the Affordable Project Provisions if not timely performed by Affordable Housing Developer, and (ii) the Affordable Project Enforcement Obligations in Tustin TIC DDA 03.11.25 (14M)(3) FINAL 108 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 accordance with the requirements of this Agreement. Developer hereby agrees for the benefit of the City that Developer shall (x) enforce all duties delegated to the Affordable Housing Developer pursuant to the Lot 13 PDA and, when in effect, the Approved Ground Lease and the Other Agreements, as they pertain to the Affordable Project Provisions, (y) if Affordable Housing Developer is not timely performing the Affordable Project Provisions, to promptly and diligently perform the Affordable Project Enforcement Obligations and (z) continue to perform all Affordable Project Obligations that are not delegated to Affordable Housing Developer as Affordable Project Provisions, with such enforcement and performance under the foregoing clauses x through (z) to be accomplished in a manner that will cause the Affordable Project Provisions to be fully and timely performed in accordance with the requirements of this Agreement and the Other Agreements. Except as otherwise set forth in Section 9.8 or the Other Agreements, the Affordable Project Obligations shall terminate as to each Parcel within Lot 13 upon the issuance of an Affordable Project Certificate of Compliance for such Parcel. For avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, the City and Developer hereby agree, that except (A) for the satisfaction of the Alternative Affordable Project Development Plan Conditions Precedent set forth in Section 4.8 in connection with an Alternative Affordable Project Development Plan, (B) City review of any proposed updated Financing Plans for the Affordable Project in accordance with Sections 4.6.1.2, 4.6.1.3 and 4.6.1.4, or (C) City rights to approve a replacement Affordable Housing Developer other than an Approved Alternative Affordable Housing Developer, Developer may proceed with any and all of its Affordable Project Enforcement Obligations (including, without limitation, termination of the Lot 13 PDA and the Approved Ground Lease) without first having to obtain any consent or approval from the City provided that Developer shall provide advance written notice to the City of its intent to exercise of the Affordable Project Enforcement Obligations together with general steps it intends to take prior to exercise thereof. In addition, Developer may elect to use an Alternative Affordable Project Development Plan, provided that the same shall not be subject to the cure rights or any schedule extensions set forth in Section 13.5. 13.2.2 No Amendment, Modification, Termination of Lot 13 PDA, the Ground Lease Option, or Approved Ground Lease. Without the prior written consent of the City Manager or his or her designee, which consent shall not be unreasonably withheld, delayed or conditioned, subject to the following: (i) Developer shall not take any other steps or actions that would affect the Affordable Housing Developer's ability to perform Affordable Project Provisions or Developer's ability to perform the Affordable Project Enforcement Obligations and the Affordable Project Obligations not delegated as Affordable Project Provisions to Affordable Housing Developer and (ii) Developer shall not and shall not permit Affordable Housing Developer to, amend, modify, or terminate, the Lot 13 PDA, the Ground Lease Option, or any Approved Ground Lease, provided that it shall not be unreasonable for the City to withhold its consent to any such amendment, modification, or termination, if among other things, the effect thereof is a termination of the Lot 13 PDA or any Approved Ground Lease (except a termination resulting from Developer performing its Affordable Project Enforcement Obligations) or any amendment or modification therein of. (A) any disclaimer by Affordable Housing Developer of any rights in this Agreement or remedies for any alleged breach of this Agreement, (B) any requirement that notice of or information about any matter be provided to the City, (C) any provision providing that the fee interest in Lot 13 not be merged with the leasehold estate created Tustin TIC DDA 03.11.25 (14M)(3) FINAL 109 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 under any Approved Ground Lease, (D) any restrictions on assignment of the Lot 13 PDA or the leasehold estate created under any Approved Ground Lease, (E) any requirement that the Affordable Housing Developer provide insurance for the benefit of the City, (F) any cure period provided to Affordable Housing Developer that results or would result in a failure of Affordable Housing Developer to achieve the dates set forth in the Schedule of Performance or in the applicable Subordination Agreement, (G) the Affordable Project Provisions set out as obligations of the Affordable Housing Developer in any Approved Ground Lease that would result in neither Developer nor the Affordable Housing Developer having responsibility for any such Affordable Project Provisions (provided that Developer affirms its direct responsibility for such provisions in writing to the City), (H) any requirement that conflicts with the express requirements of this Agreement or the Other Agreements or (I) in the event the Affordable Housing Developer is an Approved Alternative Affordable Housing Developer that is The Irvine Company, TICAD or any wholly -owned affiliate of any such entity or any limited partnership which any such entity Controls, the amendment or modification is not considered an arms' length transaction. Notwithstanding any other provision of this Section to the contrary, initial drafts of the contemplated modifications shall be delivered to the City at least thirty (30) Business Days prior to any proposed Lot 13 Transfer or any proposed assignment of the Ground Lease, with substantially final versions to be delivered at least five (5) Business Days prior to the assignment date, and executed copies to be delivered within three (3) Business Days after the assignment date and the City shall be provided an equivalent period of time to review other proposed substantial revisions. Additionally, Developer shall not waive any provisions in the Lot 13 PDA, the Ground Lease Option or any Approved Ground Lease in any of the matters identified in clauses (A) through above without the prior written consent of the City Manager or his or her designee, in his or her sole discretion. 13.2.3 No Assignment Without City Consent. Developer shall not assign the Lot 13 PDA, the Ground Lease Option or an Approved Ground Lease to any Person other than in connection with a Transfer pursuant to Section 2.2.2.1 or 2.2.3 or permit Affordable Housing Developer to assign the Lot 13 PDA the Ground Lease Option or an Approved Ground Lease to any Person, or permit any Transfer of Control of the Affordable Housing Developer to any Person without the prior written consent of the City in its sole discretion, the intent of the Parties being that Developer shall be in a position to ensure for the benefit of the City that the Affordable Housing Developer will perform the obligations under this Agreement and the Other Agreements that have been delegated to Affordable Housing Developer under the Lot 13 PDA and, following a Lot 13 Transfer, any Approved Ground Lease; provided that if the proposed transferee is an Approved Alternate Affordable Housing Developer such transferee shall be pre -approved as Affordable Housing Developer and if the proposed transferee is not an Approved Alternate Affordable Housing Developer, such transferee shall require the prior written consent of the City in its sole discretion. For the foregoing reasons, Developer shall cause the Guarantor for the Affordable Project to be the same as for the Market Rate Project unless otherwise agreed by the City in its sole discretion. To allow the City to exercise its consent rights, Developer shall provide to the City not less than thirty (30 ) Business Days prior to the date of any assignment or Transfer of Control that is the subject of this Section 13.2.3: Tustin TIC DDA 03.11.25 (14M)(3) FINAL 110 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 13.2.3.1 information analogous to the information to be provided for a Transfer or Transfer of Control pursuant to Section 2.2.3.1 through 2.2.3.7; 13.2.3.2 an Updated Affordable Project Financing Plan meeting the requirements of Section 4.6.1, 13.2.3.3 completed versions of all documents required to be delivered as conditions to a Lot 13 Transfer by Sections 4.6.1.2 and 4.7 (with initial drafts of the contemplated documents to be delivered at least thirty (30) Business Days prior to the proposed assignment date, substantially final versions to be delivered at least five (5) Business Days prior to the assignment date, and executed copies to be delivered within three (3) Business Days after the assignment date); and 13.2.3.4 such other relevant information as the City may request in its reasonable discretion in connection with its consent rights, which may include evidence that the proposed assignee, and its Controlling Person, and that Guarantor has sufficient financial capacity to perform, fund or guaranty, as applicable, the obligations of Affordable Housing Developer, and to meet the other requirements of the Lot 13 PDA and the Approved Ground Lease. 13.2.4 No Additional Agreements. Developer represents that there are no oral or written agreements, understandings or other communications and it shall not create or enter into any of the foregoing which in any way (i) cancel, abrogate, terminate, modify or interpret the words or the meaning of the Lot 13 PDA, the Ground Lease Option or the Approved Ground Lease or any other documents made available to the City in a manner that could adversely affect the interests of the City under this Agreement or the Other Agreements, or (ii) modify or affect the obligation of Affordable Housing Developer to perform any of the Affordable Project Provisions or the terms upon which Affordable Housing Developer is committed to do so. 13.3 Affordable Project Obligations of Developer. 13.3.1 Developer Representations Regarding Affordable Project. Developer hereby represents and warrants to the City as of the Effective Date, which representation and warranty shall be true and correct as of the Close of Escrow (unless Developer has terminated the Lot 13 PDA) and upon each Lot 13 Transfer that: (i) the Lot 13 PDA is in full force and effect in the form and substance reasonably approved by the City (without modification from such form or subject only to modifications approved by the City) and is enforceable in accordance with its terms; (ii) to Developer's Knowledge, except as disclosed by Developer to the City in writing, as of the date on which this representation is made, neither party is in default under the Lot 13 PDA nor is there any circumstance that, with the giving of notice, the passage of time, or both, could constitute or result in a default by either party to the Lot 13 PDA; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 111 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 (iii) Developer is a parry to and has the right under the Lot 13 PDA (A) to require Affordable Housing Developer to comply with and perform the applicable Affordable Project Provisions set forth therein, (B) to enforce, and pursuant to Section 13.3.3 and the terms of the Lot 13 PDA, to terminate the Lot 13 PDA and (C) to ensure that the Lot 13 PDA will not be amended, modified or terminated in a manner adversely affecting Developer's ability to enforce the obligation of Affordable Housing Developer to carry out the Affordable Project Provisions; and (iv) Other than completion of all conditions required for the completion of the Lot 13 Transfer, to Developer's Knowledge there is no legal requirement, contractual obligation, fact, information or event that could have the effect of limiting, prohibiting or restricting the ability of Developer to complete the Lot 13 Transfer or the ability of the Affordable Housing Developer to obtain financing (subject to and except for the requirements applicable to Affordable Housing Developer's ability to secure bond and tax credit allocations and financing for the Affordable Project pursuant to the approved Affordable Project Financing Plan) for the development, construction, or lease of the Affordable Project or leasing of the Lower Income Units. 13.3.2 Developer Affordable Proiect Obligations. Notwithstanding the delegation of the Affordable Project Provisions to Affordable Housing Developer, Developer is responsible for Completion of the Affordable Project Improvements and therefore agrees that it shall (i) perform all Affordable Project Obligations not delegated to Affordable Housing Developer as Affordable Project Provisions, and (ii) cause the Affordable Housing Developer to comply with the Affordable Project Provisions, provided that if Developer elects to use an Alternative Affordable Project Development Plan, Developer shall perform all Affordable Project Provisions directly. In furtherance of this obligation, in the event of a default by Affordable Housing Developer under the Lot 13 PDA (whether occurring prior to or following Lot 13 Transfer), a default by the Affordable Housing Developer under the Approved Ground Lease, or a default under the Other Agreements, Developer shall perform the Affordable Project Enforcement Obligations (which may include use of an Alternative Affordable Project Development Plan) and the Affordable Project Provisions in accordance with the requirements of this Agreement and within the time periods set forth in Section 13.5. 13.3.3 Obligation to Enforce or Terminate Lot 13 PDA. If Developer terminates the Lot 13 PDA and a Lot 13 Transfer has not then occurred, Developer shall terminate the Ground Lease Option. Within twenty (20) Business Days following termination of the Lot 13 PDA, Developer shall either (i) identify an Approved Alternate Affordable Housing Developer or other alternate Affordable Housing Developer satisfactory to the City in its sole discretion with which to enter into a new Lot 13 PDA and shall promptly enter into a Lot 13 PDA and Ground Lease Option with such entity or, if the Lot 13 Transfer Conditions are satisfied, an Approved Ground Lease with such entity, or (ii) shall notify the City of its intent to act as Affordable Housing Developer pursuant to an Alternative Affordable Project Development Plan. If Developer terminates the Lot 13 PDA after a Lot 13 Transfer has occurred, Developer shall either (x) Tustin TIC DDA 03.11.25 (14M)(3) FINAL 112 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 terminate the Approved Ground Lease subject to the terms and provisions of the Approved Ground Lease and any Leasehold Mortgagee protections set forth therein or in any applicable Subordination Agreement, or (y) keep the Approved Ground Lease in place provided that Developer replaces USA Properties' interest in the Affordable Housing Developer with, or USA Properties assigns its interest as Ground Lessee to, an Affordable Housing Developer, an Approved Alternative Affordable Housing Developer or another Affordable Housing Developer approved by the City in accordance with Section 1.4.3. The City hereby approves of TICAD, The Irvine Company, Bridge Housing, Meta Housing and Jamboree Housing (or any wholly -owned affiliate of any such entity or any limited partnership which any such entity Controls) as an alternate Affordable Housing Developer ("Approved Alternate Affordable Housing Developer"). 13.3.4 Obligation to Provide Notice of Default. Developer shall notify the City in writing within five (5) Business Days from its delivery to or receipt from Affordable Housing Developer of a notice of default under the Lot 13 PDA or the Approved Ground Lease or from such earlier date as Developer has actual knowledge that a material default by either party has occurred or with the giving of written notice to the Affordable Housing Developer and the passage of time will occur. The mere obligation to provide the City with written notice of a default or potential default of the Affordable Housing Developer does not trigger any Affordable Project Enforcement Obligations. The occurrence of a default by Developer under the Lot 13 PDA or the Approved Ground Lease or the failure by Developer to provide required notice to the City pursuant to this Section shall be a Potential Default under this Agreement which shall be deemed to commence upon the earlier of the date of delivery of the notice or if no notice by Affordable Housing Developer is provided by Developer, the date upon which the required notice was to have been provided by Developer to comply with the foregoing. 13.4 No Cross -Default With Market Rate Project. Notwithstanding anything in this Agreement to the contrary, unless Affordable Housing Developer (or any other Person that Controls, is Controlled by, or is under common Control with the Affordable Housing Developer) is the Owner of any portion of the land that comprises the Real Property, from and after the Lot 13 Transfer and, subject to the limitations set forth in clauses (A) through (M below, no act or omission of Developer, Guarantor or any Successor Owner of the Property shall: (i) constitute a Default that gives rise to or constitutes a City Lien as to the leasehold interest of Affordable Housing Developer or otherwise adversely affect any rights or benefits afforded to Affordable Housing Developer or any Leasehold Mortgagee with respect to the leasehold interest of Affordable Housing Developer pursuant to this Agreement, any Subordination Agreement entered into by the City and a Leasehold Mortgagee with respect to Lot 13 or any Parcel thereof, or any of the Other Agreements (including the right to obtain an Affordable Project Certificate of Compliance as set forth in Article 9); (ii) constitute a condition or requirement affecting the ground lease interest of Affordable Housing Developer or the Affordable Project to be constructed on Lot 13; or (iii) subject the Affordable Housing Developer or any Permitted Leasehold Mortgagee to any obligations, liability or responsibility (including any indemnity obligations) relating to Lot 11, Lot 12 or the fee interest of Developer in Lot 13; provided that the foregoing provisions of this Section 13.4 do not relieve (A) Developer of its obligations and liabilities to the City under this Agreement and the Other Agreements, (B) Tustin TIC DDA 03.11.25 (14M)(3) FINAL 113 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Guarantor of its obligations under the Guaranty, (C) Affordable Housing Developer from the obligations imposed on Affordable Housing Developer under the Lot 13 PDA, the Approved Ground Lease and/or the Other Agreements, or (D) the Affordable Housing Developer from any liability arising in connection with a Lot 13 Transfer that is not in compliance with the requirements of Section 4.7, whether such failure to comply with the requirements is caused by or results from acts or omissions to act of Developer that is the transferor or Affordable Housing Developer that is the transferee, or any other Person. The provisions of this Section 13.4 shall not apply until a Lot 13 Transfer has taken place. For the purposes of this Section 13.4, the Affordable Housing Developer shall not be deemed to be under common Control with any other persons or entity solely by virtue of the fact that Developer and/or certain affiliates of Developer serve as a limited partner of Affordable Housing Developer. 13.5 Exercise by Developer of Affordable Project Enforcement Obligations. Upon delivery by Developer to Affordable Housing Developer of a notice of default under the Lot 13 PDA or the Approved Ground Lease (any of the foregoing, an "Affordable Project Default") and commencing on the first date after the expiration of any applicable cure periods for the foregoing set forth in the Approved Ground Lease and/or Lot 13 PDA (the "Affordable Project Default Commencement Date"), Developer shall diligently prosecute its Affordable Project Enforcement Obligations to completion within ninety (90) calendar days from the Affordable Project Default Commencement Date such that the Affordable Project Default shall be cured within such time period, provided that if such enforcement is of a nature that it cannot be reasonably accomplished within such ninety (90) calendar day period then Developer shall be afforded such longer period as is reasonably required and approved by the City in its reasonable discretion to pursue its Affordable Project Enforcement Obligations, but only if the Affordable Housing Developer has commenced to cure the Affordable Project Default prior to the Affordable Project Default Commencement Date pursuant to the terms of the Lot 13 PDA and/or the Approved Ground Lease as applicable and diligently pursues such cure to completion; or, if Affordable Housing Developer has failed to commence and diligently prosecute such cure within the cure period provided by the Lot 13 PDA and/or the Approved Ground Lease as applicable, Developer shall have promptly commenced and be diligently prosecuting to completion its remedies under the Lot 13 PDA and Approved Ground Lease, as applicable, provided that in no event shall the time period for exercise of the Affordable Project Enforcement Obligations extend more than two (2) years from the Affordable Project Default Commencement Date nor shall it cause Developer or Affordable Housing Developer to fail to achieve the dates set forth in the Schedule of Performance for Lot 13 Transfer/Affordable Project Closing. If, following a Lot 13 Transfer, Developer is afforded a longer period than ninety (90) calendar days (as set forth above) to pursue its Affordable Project Enforcement Obligations, the time periods in the Schedule of Performance for commencement and Completion of the Affordable Project Improvements on the applicable Parcel shall be extended for a commensurate period with the period of extension approved by the City for the exercise by Developer of the Affordable Housing Enforcement Obligations. For avoidance of doubt, the provisions in the Lot 13 PDA or Approved Ground Lease governing notice, cure, and Leasehold Mortgagee protections in the event of an Affordable Project Default shall apply with respect to the declaration by Developer of an Affordable Project Default and Affordable Housing Developer or any Permitted Leasehold Mortgagee's rights to cure the same. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 114 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 13.6 Notice of Affordable Proiect Default; Quarterly Reporting. Developer shall deliver any Affordable Project Default notice to the City concurrently with delivery of the same to Affordable Housing Developer. In addition, within ten (10) calendar days following the end of each calendar quarter, commencing with the calendar quarter in which the Closing Date occurs and ending with the calendar quarter in which the second Affordable Project Certificate of Compliance is issued by the City, Developer shall deliver to the City a report executed by a senior officer of Developer certifying that, to the knowledge of the officer executing the report, no circumstance exists that, with the giving of notice and, if applicable, passage of time without cure, would entitle Developer to take remedial action under the Lot 13 PDA or any Approved Ground Lease, or, if to the knowledge of such officer such a circumstance exists, describing such circumstance in reasonable detail and describing the general actions that Developer intends to take regarding such circumstance. In the event of an Affordable Project Default, the report shall identify the relevant cure period for such default and the steps Affordable Housing Developer is taking, or intends to take, to cure the same, and any Affordable Project Enforcement Obligations undertaken or proposed to be undertaken by Developer with respect to such default. Nothing in this Section 13.6 shall restrict the right of the City to seek or to obtain more frequent updates from Developer regarding the status of the Affordable Project or any Affordable Project Default. 14. Potential Defaults and Material Defaults. 14.1 Potential Defaults. Except as otherwise provided in this Agreement, in the event either Party ("Defaulting Party") fails to perform, or delays in the performance of, any obligation, in whole or in part, required to be performed by the Defaulting Party as provided in this Agreement (a "Potential Default"), the other Party ("Injured Party") may give written notice of such Potential Default to the Defaulting Party ("Default Notice"), which Default Notice shall state the particulars of the Potential Default. For avoidance of doubt, and notwithstanding any provision in this Agreement to the contrary, no Potential Default shall be deemed to exist hereunder unless and until the Injured Party shall have provided to the Defaulting Party a Default Notice. In the event the Defaulting Party contests in writing to the Injured Party the Potential Default subject of a Default Notice, or in the event of any other disagreement between the Parties regarding this Agreement or the implementation thereof, the Parties shall promptly meet and confer in good faith to seek to resolve such Potential Default or other disagreement, provided that in no event shall the obligation to meet and confer or the discussions of the Parties pursuant to this Section 14.1 modify the time periods for cure set forth in Section 14.2, Article 15 or Article 16. 14.2 Material Defaults. 14.2.1 Monetary Defaults. Notwithstanding any other provision of this Agreement, if a Party fails to pay the other Party any sum as and when required to be paid pursuant to this Agreement or to make any deposit as and when required pursuant to this Agreement the Defaulting Party shall have a period of fifteen (15) Business Days after the date a Default Notice is received, or deemed to have been received, within which to cure the Potential Default by making Tustin TIC DDA 03.11.25 (14M)(3) FINAL 115 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 the required payment; provided that with respect to a Potential Default pursuant to Section 8.9.3, the period for cure shall be thirty (30) calendar days. The period to cure any Potential Default described in Section 8.9.3 or this Section 14.2.1 shall not be extended by Force Majeure Delay. In the event a Potential Default for nonpayment or failure to make a deposit is not cured within the applicable time period, the Potential Default shall become a "Material Default" that shall be deemed to have occurred upon the expiration of the cure period. 14.2.2 Non -Monetary Defaults. With respect to non -monetary defaults under this Agreement, a Potential Default shall become a "Material Default" in the event the Potential Default is not cured, at the Defaulting Parry's expense, (i) within thirty (30) Business Days after the date the Default Notice is received, or deemed to have been received by the Defaulting Parry; (ii) if such cure cannot be reasonably accomplished within such thirty (30) Business Day period, within ninety (90) Business Days (or if an Approved Ground Lease is then in effect, within one hundred fifty (150) calendar days as to the Lot 13 Property only) after the date the Default Notice is received, or deemed to have been received by the Defaulting Party, but only if the Defaulting Party has commenced such cure within such thirty (30) Business Day period and diligently pursues such cure to completion; or (iii) within such longer period of time as may be expressly provided in this Agreement or as mutually agreed to in writing between the Parties with respect to the Potential Default. Following written notice and failure to cure within the time periods set forth above, each Potential Default shall become a Material Default that shall be deemed to have occurred upon the expiration of the applicable cure period. Notwithstanding anything in the foregoing to the contrary, the Defaulting Party may cure a Material Default at any time prior to the date the Injured Parry exercises its remedy for the Material Default. Except as set forth in Sections 2.3, 4.7, 7.1, 14.2.3, and 16.4.1, the time periods set forth in this Section 14.2.2 to cure a Potential Default shall be extended by Force Majeure Delay. 14.2.3 Transfer Defaults. Notwithstanding the foregoing, any Transfer or any Transfer of Control in violation of the provisions of Article 2, Section 4.7 or the requirements of the Lot 13 PDA, Ground Lease Option and/or Approved Ground Lease, as applicable (including consent of the City thereto to the extent required by each such instrument), shall be null and void and, if related to a Transfer by Developer or a Transfer of Control in Developer, shall in all events be a Material Default under this Agreement as of the date of the Transfer or Transfer of Control by the violating party, without notice or cure period and shall not be subject to extension for Force Majeure Delay, except that with respect to involuntary Construction Liens the notice and cure periods set forth in Section 14.2.2 shall apply, in order to enable Developer to comply with the provisions of Section 8.11.5. 14.2.4 Affordable Proiect Obligations and Affordable Proiect Enforcement Obligation Defaults. It shall be a Material Default under this Agreement if Developer shall fail (i) prior to the Affordable Project Outside Date to have caused one of the following to occur as further described in Section 4.7.1: (A) enter into Approved Ground Lease(s) for the entirety of Lot 13, whether pursuant to one or two Lot 13 Transfers or (B) satisfied the Alternative Affordable Project Development Plan Conditions Precedent; (ii) upon the occurrence of an Affordable Project Default to perform the Affordable Project Obligations, including the Affordable Project Enforcement Obligations, in a manner that results in the Affordable Project Tustin TIC DDA 03.11.25 (14M)(3) FINAL 116 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 being performed (including commencement and Completion) within the time period set forth in the Schedule of Performance (as the same may be extended in certain circumstances pursuant to Section 13.5 or Force Majeure Delay) or (iii) to perform the remaining Affordable Project Provisions as and when required by this Agreement. 14.2.5 Interest. If a monetary Material Default occurs under this Agreement, then in addition to any other remedies conferred upon the Injured Parry pursuant to this Agreement, the Defaulting Party shall pay to the Injured Party, in addition to all principal amounts due, interest on such principal amounts at the Default Rate, for the period from the date such payment or part thereof was due until the date the same is paid. 14.2.6 No Waiver. Failure or delay by an Injured Parry to deliver a Default Notice shall not constitute a waiver of any Default, nor shall it change the time of Default. Except as otherwise expressly provided in this Agreement, any failure or delay by either Party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies. Delays by either Party in asserting any of its rights and remedies shall not deprive either Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 14.3 Due Diligence Information; Products. 14.3.1 Return of Due Diligence Information. Within five (5) Business Days following a termination of this Agreement occurring prior to the Close of Escrow, Developer shall use commercially reasonable efforts to return to the City all written Due Diligence Information in Developer's possession. Developer's obligation to return Due Diligence Information to the City is without representation or warranty of any kind by Developer. 14.3.2 Surrender of Transferable Products. In connection with the proposed Market Rate Project and the Affordable Project, Developer shall be preparing or causing to be prepared architectural and other products, surveys, plans, reports, tests, studies and investigations with respect to the Development Parcels and the proposed Market Rate Project and Affordable Project, as applicable, (collectively, "Products"). All Products shall be prepared at Developer's sole cost and expense. If this Agreement is terminated for any reason other than a Material Default by the City prior to or following the Close of Escrow or if the Right of Repurchase or Right of Reversion is exercised, then, with respect to all Products other than financial or economic estimates, projections and evaluations; studies and information related to potential tenants, lenders and investors; any confidential or proprietary information of Developer or its equity partner(s), or attorney -client or other privilege (the Products not subject to such exclusions are collectively "Transferable Products"), the City may request that Developer transfer Developer's rights to any or all of the Transferable Products identified by the City but in no event shall the cost to the City exceed Five Thousand Dollars ($5,000.00). Upon such request and payment of such consideration, Developer shall deliver to the City copies of all Transferable Products requested by the City together with a bill of sale therefor, provided that such transfer is made AS -IS and Developer makes no representation, warranty or guaranty regarding the completeness or accuracy or any other aspect of the Transferable Products, and Developer does not covenant to convey the copyright or Tustin TIC DDA 03.11.25 (14M)(3) FINAL 117 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 other ownership rights of third parties thereto. Such Transferable Products shall thereupon be free of all claims or interests of Developer or any liens or encumbrances. Upon the City's acquiring Developer's rights to any or all of the Transferable Products, the City shall be permitted to use, grant, license or otherwise dispose of such Transferable Products to any Person for development of the Market Rate Project or the Affordable Project or any other purpose; provided, however, that Developer shall have no liability whatsoever to the City or any transferee of title to the Transferable Products in connection with the use of the Transferable Products. Notwithstanding anything to the contrary in this Section 14.3.2, Developer shall only be obligated to transfer any Transferable Products to the extent that Developer owns the rights to the same pursuant to its contract with the preparer thereof. 14.3.3 Survival. The provisions of this Section 14.3 shall survive the termination of this Agreement in its entirety or as to any portion of the Property except that it shall terminate with respect to any Parcel upon the Recording by the City of a Certificate of Compliance applicable to that Parcel, or if no such Certificate of Compliance has been Recorded, upon the Recording by the City of the Final Certificate of Compliance. 15. Remedies Prior to Close of Escrow. 15.1 Failure of a Condition Absent a Default. 15.1.1 If the Close of Escrow does not occur by reason of the failure of any of the Closing Conditions (other than by reason of a Default by either Party) or any of the following conditions, each of which shall be an additional Closing Condition for the benefit of each Party, either Party shall have the right to terminate this Agreement as hereinafter provided: 15.1.1.1 If a final non -appealable decision in any litigation brought by a third parry or approval of a referendum or initiative results in the inability of the City to convey all or any portion of the Property to Developer, or prohibits Developer from performing any of its obligations under this Agreement that are not waived by the City, either Party shall have the right, upon thirty (30) Business Days' prior written notice to the other Party and the Escrow Holder, to terminate this Agreement. 15.1.1.2 If any litigation, referendum, or initiative brought by a third party remains pending on the Outside Closing Date and (i) such ongoing challenge prevents the City from conveying all or any portion of the Property to Developer, or (ii) such ongoing challenge prohibits Developer from performing any of its obligations under this Agreement that are not waived by the City, either Party shall have the right, upon thirty (30) Business Days' written notice to the other Party and the Escrow Holder, to terminate this Agreement. 15.1.1.3 If the City identifies the presence or Release of Hazardous Materials that require the City to make more than one claim against its policy of environmental insurance. 15.1.2 If the circumstances creating the right of termination in Sections 15.1.1.1 or 15.1.1.2 have been cured during the thirty (30) Business Day period described in each Tustin TIC DDA 03.11.25 (14M)(3) FINAL 118 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 such section, the right to terminate with respect to such circumstances shall likewise be extinguished. 15.1.3 If the Close of Escrow does not occur on or before 5:00 p.m., Pacific Time, on or before the Outside Closing Date because of the failure to occur of a Closing Condition for reasons other than a Default by either Party, then the Party for whose benefit the applicable Closing Condition was intended may, by delivery of written notice to the other Party and to the Escrow Holder, terminate this Agreement. In the event either Developer or the City is in Default as of the Closing Date, the Party in Default shall not have the right to terminate this Agreement pursuant to this Section 15.1.3 until and unless the Default is cured. Upon termination of this Agreement prior to the Close of Escrow in accordance with Section 15.1.1 or this Section 15.1.3, each Party shall pay one-half (1/2) of Escrow Holder's normal cancellation charges and the Original Purchase Price Deposit then held by Escrow Holder shall be paid to and retained in full by the City unless a Deposit Return Event occurred and the Additional Purchase Price Deposit then held by Escrow Holder shall be paid to and retained in full by the City notwithstanding the occurrence of a Deposit Return Event. The termination of this Agreement pursuant to Section 15.1.1 or this Section 15.1.3 prior to the Close of Escrow shall constitute a waiver of any rights or Claims either Party may have against the other or against the Property, the Market Rate Project Improvements or the Affordable Project Improvements, or any portion thereof, but shall not terminate or release any liability or obligations of either Party to comply with any obligations under this Agreement which are expressly stated to survive a termination of this Agreement. In the event of a termination as provided in Section 15.1.1 or this Section 15.1.3, under no circumstances shall Developer have any right or claim to, or against, the Market Rate Project, the Affordable Project or the Property or any portion thereof. 15.1.4 For purposes of clarity, the failure of a Closing Condition for the benefit of either Party to be satisfied at or prior to the Close of Escrow shall not, on its own, constitute a Default by either Party hereunto absent a Default under a separate covenant, obligation, representation or warranty set forth in this Agreement or any Other Agreement. 15.2 Failure of Close of Escrow; Developer Default. 15.2.1 CLOSE OF ESCROW. IF THE CLOSE OF ESCROW DOES NOT TAKE PLACE ON OR BEFORE 5:00 P.M., PACIFIC TIME, ON THE OUTSIDE CLOSING DATE AS A RESULT OF A DEFAULT BY DEVELOPER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND DEVELOPER THEREAFTER FAILS TO CURE THE SAME WITHIN THE APPLICABLE NOTICE AND CURE PERIOD SET FORTH IN ARTICLE 14, THEN THE PARTIES ACKNOWLEDGE AND AGREE BY INITIALING THIS AGREEMENT IN THE SPACE PROVIDED BELOW THAT: 15.2.1.1 THE CITY SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND THE ESCROW BY DELIVERING WRITTEN NOTICE TO DEVELOPER AND TO ESCROW HOLDER, WHEREUPON THIS AGREEMENT SHALL TERMINATE AND DEVELOPER AND CITY SHALL BE RELEASED FROM THEIR OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING THE CITY'S OBLIGATION TO Tustin TIC DDA 03.11.25 (14M)(3) FINAL 119 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 SELL THE PROPERTY TO DEVELOPER, BUT EXCLUDING THEREFROM ANY OBLIGATIONS WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT. IN SUCH EVENT, ESCROW HOLDER SHALL DISBURSE TO THE CITY THE ORIGINAL PURCHASE PRICE DEPOSIT PREVIOUSLY PAID BY DEVELOPER TO ESCROW HOLDER, AND THE CITY SHALL RETAIN THE ADDITIONAL PURCHASE PRICE DEPOSIT, IF ANY, PAID TO THE CITY, AND ALL ACCRUED INTEREST ON THE PURCHASE PRICE DEPOSIT, AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE CITY'S SOLE AND EXCLUSIVE REMEDY FOR DEVELOPER'S FAILURE TO CLOSE ESCROW, EXCEPT FOR THE CITY'S OTHER RIGHTS AND REMEDIES WITH RESPECT TO ANY OBLIGATIONS OF DEVELOPER THAT EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT. THE CITY'S RIGHTS AND REMEDIES DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. 15.2.1.2 THE PURCHASE PRICE DEPOSIT BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE SUFFERED BY THE CITY AS THE RESULT OF DEVELOPER'S FAILURE TO CLOSE ESCROW UNDER THIS AGREEMENT, WHICH DAMAGES WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO QUANTIFY. THE PURCHASE PRICE DEPOSIT CONSTITUTES A REASONABLE ESTIMATE OF THE CITY'S DAMAGES IN SUCH EVENT. THE REMEDY PROVIDED FOR IN THIS SECTION 15.2.1 IS NOT A PENALTY OR FORFEITURE AND IS A REASONABLE LIMITATION ON DEVELOPER'S POTENTIAL LIABILITY AS A RESULT OF SUCH FAILURE TO CLOSE ESCROW. NOTHING IN THIS AGREEMENT, HOWEVER, SHALL PRECLUDE THE CITY FROM RETAINING ALL REIMBURSEMENTS IT HAS PREVIOUSLY RECEIVED FROM DEVELOPER FOR THE DDA TRANSACTION EXPENSES AND RETAINING AND COLLECTING FROM DEVELOPER ANY ADDITIONAL AMOUNTS THEN DUE TO THE CITY ON ACCOUNT OF DDA TRANSACTION EXPENSES INCURRED BY THE CITY TO THE DATE OF TERMINATION OF THIS AGREEMENT. 15.2.1.3 DEVELOPER SHALL PAY THE FULL AMOUNT OF ESCROW HOLDER'S CHARGES AS A RESULT OF SUCH DEFAULT AND TERMINATION. 15.2.1.4 DEVELOPER SHALL COMPLY WITH THE REQUIREMENTS OF SECTION 14.3 AND SHALL INDEMNIFY THE CITY AS PROVIDED IN SECTION 5.2 AND COMPLY WITH ALL OTHER PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT. Initials of City Tustin TIC DDA 03.11.25 (HM)(3) FINAL ^I Initials of Developer 120 City of Tustin/Irvine Company Por. Disp. Areas 2B, 2C and 8 15.3 Failure to Close; Default of City. 15.3.1 Developer Remedies. If the Close of Escrow does not occur on or before 5:00 p.m., Pacific Time, on or before the Outside Closing Date, solely as a result of a Default by the City in the performance of its obligations under this Agreement with respect to the Close of Escrow, and the City thereafter fails to cure the same within the applicable notice and cure period set forth in Section 14.2 (the "City Cure Period"), then, as the sole remedy of Developer with respect to such Default by the City, and provided that Developer is not then in Default under this Agreement, Developer shall have the right, by providing written notice to the City, within twenty (20) Business Days after the last day of the City Cure Period, to elect one of the following remedies, it being agreed by the Parties that in the event Developer fails to deliver such notice within such twenty (20) Business Day period, Developer shall be deemed to have elected to terminate this Agreement in accordance with clause(iii) below: (i) to purchase the Property pursuant to this Agreement notwithstanding such Default by the City and subject to its agreement to waive all of Developer's rights with respect to any such City Default, whereupon such Default (other than Defaults with respect to City's failure to deliver the documents and instruments required under Section 7.2.1.1) shall be deemed waived as against the City; (ii) to elect to extend the Closing Date for a period of up to ninety (90) Business Days (without any obligation to pay the Additional Purchase Price Deposit) in order to provide the City with additional time to cure such Default (and in such event the City shall use commercially reasonable efforts to cure the same during such extension period) and, if despite such efforts the City is not able to cure the same by such extended Closing Date, Developer shall have the right by providing written notice to the City within twenty (20) Business Days after the extended Closing Date to elect the remedies set forth in clauses (i), (iii) or (iv) of this Section 15.3.1, in each case only if then applicable; (iii) to terminate this Agreement and cancel the Escrow as more particularly set forth in Section 15.3.3; or (iv) if all applicable City Closing Conditions have been waived by the City in writing or satisfied (except with respect to any applicable City Closing Condition which is not satisfied as a result of a Default by the City), and the City fails to deliver any of the materials described in Section 7.2.1.1 or otherwise fails to proceed with the Close of Escrow in breach of this Agreement after Developer has delivered into Escrow all of its required deliveries pursuant to Section 7.2.2 other than the Closing Payment, and Developer has provided the notice and City has failed to cure pursuant to Section 14.2 or Section 15.3.1(ii), Developer shall have the right to (A) bring an action in mandamus or at equity or otherwise against the City or subsequent owners, lessors or sublessors of the Property for specific performance of the City's obligation to close Escrow in Tustin TIC DDA 03.11.25 (14M)(3) FINAL 121 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 accordance with Article 7 and (B) Developer shall be entitled to a full refund of the Purchase Price Deposit to the extent paid by Developer. 15.3.2 Closing Pursuant to Section 15.3.1. In the event the City receives timely notice of Developer's election to purchase the Property pursuant to Section 15.3.1 notwithstanding the Default by the City, Developer shall deliver the Closing Payment and all other deliverables required by Section 7.2.2.2 into Escrow no later than ten (10) Business Days after the City's receipt of said notice, and, provided that the City Closing Conditions have been satisfied, (i) the Close of Escrow shall occur on that date which is eleven (11) Business Days after the City's receipt of such notice and (ii) Developer shall be deemed to have waived the Default as of the Close of Escrow. 15.3.3 Developer Termination of Agreement Pursuant to Section 15.3.1. 15.3.3.1 In the event that the Developer elects or is deemed to have elected to terminate this Agreement pursuant to Section 15.3.1, then Developer's election (or deemed election) shall terminate the entirety of this Agreement, the City shall pay the full amount of Escrow Holder's charges and Developer shall be entitled, as its exclusive remedy, to a full refund of the Purchase Price Deposit then held by Escrow Holder. 15.3.3.2 City Right to Terminate Agreement. In the event Developer has elected to purchase the Property pursuant to Section 15.3.1 but fails to deliver the Closing Payment into Escrow and to satisfy the other City Closing Conditions no later than ten (10) Business Days after the City's receipt of said notice in accordance with Section 15.3.2, then the City shall have the right to terminate this Agreement by providing written notice of its election to terminate to Developer, such termination to be in accordance with the provisions of Section 15.3.3.1. 15.3.4 Effect of Termination. The termination of this Agreement pursuant to Section 15.3 shall not terminate or release any liability or obligations of Developer to indemnify the City as provided in Section 5.2 or to comply with Section 14.3 or of either Party to comply with all other provisions of this Agreement that expressly survive the termination of this Agreement. In the event that Developer does not elect its remedy of specific performance within the time period set forth in Section 15.3, Developer shall have no further right or claim to or against such Property or any portion thereof following the termination of this Agreement. The termination of this Agreement pursuant to this Section 15.3 shall constitute a waiver of any and all rights and Claims either Party may have against the other, except as expressly provided in this Section 15.3. 15.4 Remedies Exclusive. The remedies provided in Sections 15.1 through 15.3 (and Section 18.2 as applicable) for the failure of a Closing to occur are the exclusive remedies of the Parties for such failure. Without limiting the generality of the immediately preceding sentence, (i) neither Party shall have any remedy in monetary damages against the other (other than the liquidated damages specifically provided for in Section 15.2) for the failure of the Close of Escrow to occur, whether or not the failure of the Closing to occur is due to the Default or other fault of the other Party, and (ii) Tustin TIC DDA 03.11.25 (14M)(3) FINAL 122 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 following the Close of Escrow, no such Default on the part of the City shall entitle Developer to a claim for the recovery of any portion of the Purchase Price or the Project Fair Share Contribution. 15.5 Survival. The provisions of this Article 15 shall survive the termination of this Agreement. 16. Remedies for Defaults After The Close of Escrow. 16.1 General Remedies. In the event Developer is in Material Default following the Close of Escrow, in addition to whatever other rights the City may have in law or at equity, or as otherwise provided in this Agreement, the City may do any one or more of the following: (i) record a lien against the Property then owned by Developer, in accordance with Section 16.2; incurred; (ii) subject to Section 18.5.1. sue for damages it may have (iii) seek to specifically enforce the obligations of Developer. (iv) exercise its Right of Repurchase with respect to the Property pursuant to Section 16.3; (v) in the event of a Reversion Action Trigger only, exercise its Right of Reversion with respect to the Property pursuant to Section 16.4. (vi) terminate this Agreement and/or the Other Agreements, or any of them, with respect to all or any portion of the Property. 16.2 Lien Rights. Developer, on behalf of itself, its successors and assigns and each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner (but specifically excluding any End Users) for the benefit of the City and its successors and assigns hereby agrees that the delinquent amount of any payments due under this Agreement, including any liquidated damages under this Agreement, together with any late charges or interest due on any such delinquent payment, reasonable attorneys' fees, experts' fees and consultants' fees and collection costs and the cost of in-house staff time (including City overhead and administrative costs) related to such delinquent payment shall, to the greatest extent permitted by applicable law, be a lien and charge in favor of the City relating back to the Recording of the Memorandum of DDA upon all portions of the Property and the Project Improvements for which no Certificate of Compliance is then Recorded by the City in the Official Records, provided that following Recording by the City of a Certificate of Compliance for a Parcel, the City Lien shall apply to the Tustin TIC DDA 03.11.25 (11M)(3) FINAL 123 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Parcel for which such Certificate of Compliance has been Recorded only if the default arises from or is related to such Parcel or if the City Lien is imposed in connection with default by the Owner thereof ("City Lien"), which lien and charge shall be paramount to the lien and charge of each and every Mortgage, Construction Lien and/or other lien upon or affecting the Real Property or any Improvements thereon, and, subject to the terms of any applicable Subordination Agreement, the City shall have the right to foreclose the City Lien with respect to any property so encumbered by the City Lien. Upon conveyance of any portion of the Real Property to an End User unless otherwise provided in the Landscape Installation and Maintenance Agreement, the City Lien shall automatically terminate as to such conveyed portions, provided however, that the termination of such City Lien shall not terminate the obligations of Developer and its successors and assigns to City with respect to amounts due and secured by such lien, which shall remain an ongoing obligation of Developer. No breach or violation of this Agreement, nor any foreclosure of any City Lien, shall permit the City to terminate any Ground Lease, nor defeat or render invalid Affordable Housing Developer's interest as Ground Lessee in any portion of the Lot 13 Property unless the City or its designee shall first have acquired fee title to the land then subject to a Ground Lease and shall have terminated the Ground Lease pursuant to its terms. 16.3 Right of Repurchase. 16.3.1 Property Subiect to Repurchase. Following the Close of Escrow and prior to commencement of Horizontal Improvements other than Grading Work on any Parcel within a Phase (for each Phase, such date is referred to as the "Repurchase Expiration Date"), the City shall have the right ("Right of Repurchase") on the terms and subject to the conditions set forth in this Section 16.3 to purchase the applicable portion of the Real Property as set forth in Section 16.3.10, and all applicable Entitlements, Development Permits and other development rights, consents, authorizations, variances, waivers, licenses, permits, certificates and approvals from any Governmental Authority, the Transferable Products, the Intangible Property and all other appurtenant rights applicable thereto ("Repurchase Property"). 16.3.2 Repurchase Default. The City shall have the right from time to time, at any time prior to the applicable Repurchase Expiration Date to give notice to Developer of its intent to acquire the Repurchase Property for the Repurchase Price in accordance with this Section 16.3. 16.3.3 Exercise of Right of Repurchase. The City may exercise its Right of Repurchase by delivering written notice to Developer stating that the City is exercising its Right of Repurchase; provided that such notice is delivered at least ninety (90) Business Days prior to the date on which the City requires Developer to convey the Repurchase Property to the City pursuant to the Right of Repurchase and otherwise in accordance with this Section 16.3. Prior to the applicable Repurchase Expiration Date, the City's Right of Repurchase shall constitute a lien and encumbrance on the applicable portions of the Real Property and Project Improvements then subject to the Right of Repurchase which lien shall be paramount to the lien and charge of any Mortgage, Construction Lien and/or other lien upon or affecting the Real Property or any Improvements thereon, but subject to the provisions of Section 16.6.2. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 124 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 16.3.4 Access, Inspection, Further Obligations. The provisions of Section 16.5 shall apply with respect to access to and inspection of the Repurchase Property. The provisions of Section 16.6 shall apply in accordance with their terms upon close of escrow with respect to any Repurchase Property. 16.3.5 Process. If the City is entitled to and elects to repurchase the Repurchase Property: (i) the Parties shall, within five (5) Business Days after the date of the City's notice of election to exercise the Right of Repurchase, open an escrow with an escrow agent designated by the City for the purchase and sale, and shall execute an escrow agreement that shall provide that Developer shall pay all costs of the escrow and shall include such usual and ordinary terms as are reasonably required by the escrow agent and by the transaction; (ii) Developer shall, no later than five (5) Business Days after the opening of escrow, place into the escrow the appropriate quitclaim deed and bill of sale conveying fee title to the Repurchase Property; and (iii) the City shall, no later than eighty-five (85) calendar days after the opening of the escrow, deposit into the escrow an amount equal to (A) the Repurchase Price minus (B) the Lien Release Amounts, if any, minus (C) any other amounts then owed to the City by Developer and/or any Successor Owner arising or resulting directly or indirectly from or related to this Agreement with respect to the Repurchase Property, minus (D) the actual costs incurred by the City to acquire environmental and pollution legal liability insurance coverage for the Repurchase Property, including coverage for loss, remediation expense and legal defense expenses. The escrow shall close, and title to the Repurchase Property shall be conveyed to the City, and the Repurchase Price paid to Developer no later than five (5) Business Days after the City has deposited into escrow the Repurchase Price. Concurrently with the close of escrow for the Repurchase Property, Developer shall comply with its obligations under Section 14.3 with respect to the Repurchase Property. Nothing in this Section 16.3 shall restrict the right of the City to terminate its exercise of the Right of Repurchase at any time prior to the close of escrow and such termination shall not be a default by the City. At the close of escrow, real property taxes and assessments with respect to the Repurchase Property shall be prorated between Developer and the City as of the date of the close of escrow. All prorations shall be based upon a 365-day year and actual days elapsed. All closing costs, including the cost of an ALTA policy of title insurance in favor of the City with respect to the Repurchase Property shall be borne by Developer and deducted from the Repurchase Price. The Parties agree that the amount of reduction in the Repurchase Price as compared with the applicable Purchase Price is justified in that it bears a reasonable relationship to the damages which the Parties estimate may be suffered by the City as the result of Developer's Material Default in the performance of its obligations under this Agreement, which damages would be impractical or extremely difficult to quantify, and that the remedy provided in this Section 16.3 is not a penalty or forfeiture, and is a reasonable limitation on Developer's potential liability as a result of Developer's default. 16.3.6 Cooperation and Grant of Easements. The Parties shall cooperate with respect to and concurrently with the close of escrow for the Repurchase Property, shall each reserve and/or grant to the other such roadway, utility, access and other easement rights as may be required by the other Party and its successors in interest to develop the portions of the Real Property owned by it as a unified development and as contemplated by the applicable Entitlements, this Agreement and the Other Agreements. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 125 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 16.3.7 Termination of Right of Repurchase. In the event that prior to delivery by the City of written notice to Developer of its exercise of the Right of Repurchase pursuant to Section 16.3.2, Developer or any Person on behalf of Developer cures the Repurchase Default which is the basis for the City's exercise of its Right of Repurchase, but excluding any Transfer or Transfer of Control in violation of this Agreement, such Right of Repurchase shall cease and terminate with respect to such Repurchase Property only; provided that the provisions of this sentence shall not be applicable to any subsequent notice by the City of its election to exercise the Right of Repurchase. In the event the City has declared a Repurchase Default, Developer shall not have the right to apply for permits for Horizontal Improvements or to commence construction thereof in a manner that affects or thwarts the ability of the City to exercise its Right of Repurchase. 16.3.8 Effect of Repurchase. The provisions of Section 16.6 shall apply with respect to the Repurchase Property following close of escrow for the repurchase. Following close of escrow, under no circumstances shall Developer or any lienholder (other than a Leasehold Mortgage to the extent of its interest in the Ground Lease estate only) have any right or claim to, or against, the Repurchase Property. Notwithstanding the purchase of the Repurchase Property by the City as provided in this Section 16.3, this Agreement shall remain in full force and effect with respect to the portions of the Property, the Market Rate Project Improvements and the Affordable Project Improvements not purchased by the City. 16.3.9 Rights of Third Parties. The Right of Repurchase shall not defeat or render invalid or limit any rights or interests provided in easements, covenants, conditions or restrictions in favor of third parties (i.e., Persons other than Developer or its Developer Affiliates) granted pursuant to Transfers approved by the City (or constituting Permitted Transfers) and Recorded on the portion of the Real Property for which the City exercises its rights under this Section 16.3. The Repurchase Property acquired by the City shall be delivered to the City at close of escrow free and clear of all liens, including Construction Liens (other than Lien Release Amounts that are actually deducted from the Repurchase Price paid by the City), but subject to the provisions of Section 16.6.2 and (v) the Permitted Exceptions in effect at the time of the original Close of Escrow for such Property, (w) the Developer Final Tract Map, if then Recorded, (x) utility easements and/or roadway easements, (y) other matters affecting title consented to or requested by any Governmental Authority with respect to the Repurchase Property in connection with development or operation of the Repurchase Property, or consented to or requested by the City, and any covenants to comply with the Entitlements, and (z) the Other Agreements then in effect. 16.3.10 Additional Terms Applicable To Right of Repurchase. From the Close of Escrow until the Repurchase Expiration Date for Phase 1, the City shall have the right, but not the obligation, to exercise the Right of Repurchase on the entirety of the Real Property only. Following the Repurchase Expiration Date for Phase 1 until the Repurchase Expiration Date for Phase 2, the City shall have the right but not the obligation to exercise the Right of Repurchase on the entirety of the Real Property within Phase 2 only, including all of Lot 13 if the Developer Final Tract Map has not Recorded. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 126 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 16.3.11 Survival of Provisions. The provisions of this Section 16.3 shall survive the termination of this Agreement. 16.4 The Right of Reversion. Following Close of Escrow and prior to the applicable Reversion Expiration Date, in the event of the occurrence of any Reversion Action Trigger (defined in Section 16.4.1), and in addition to its other rights or remedies as a result of the occurrence of any such Reversion Action Trigger, the City shall have the right on the terms and subject to the conditions set forth in this Section 16.4 to re-enter and take possession of the applicable Reversion Property or any portion thereof and to revest title thereto in the City ("Right of Reversion") notwithstanding that the Reversion Property may be encumbered by liens, including Construction Liens and Mortgages. The revesting of any Reversion Property by the City is referred to in this Agreement as a "Reversion Event", whether based on voluntary action of Developer or otherwise after notice by the City of its intent to exercise the Right of Reversion. The City shall be entitled to exercise the Right of Reversion at any time on or after the occurrence of any of any one or more of the Reversion Action Triggers and prior to the applicable Reversion Expiration Date; provided that the City has complied with the conditions to exercise of the Right of Reversion set forth in Section 16.4.2. Prior to the City's exercise of the Right of Reversion, if exercised prior to the applicable Reversion Expiration Date, the Right of Reversion shall constitute a lien and encumbrance on the portions of the Real Property, and Project Improvements thereon then subject to the Right of Reversion, which lien and encumbrance shall have priority over the lien and charge of any Mortgage, Construction Lien and/or other lien upon the Real Property and any improvements thereon, but subject to the provisions of Section 16.6.2. 16.4.1 Certain Defaults Triggering the Right of Reversion. Following the Close of Escrow and prior to the applicable Reversion Expiration Date, the City may exercise the Right of Reversion if it elects to do so with respect to the applicable portion of the Real Property as set forth in Section 16.4.7, and all applicable Entitlements, Development Permits and other development rights, consents, authorizations, variances, waivers, licenses, permits, certificates and approvals from any Governmental Authority, the Transferable Products, the Intangible Property and all other appurtenant rights applicable thereto (collectively, "Reversion Property") upon the occurrence of any one of the following (each, a "Reversion Action Trigger", and the date on which the Reversion Action Trigger occurs is referred to in this Agreement as the "Reversion Action Trigger Date"). 16.4.1.1 Developer fails prior to the Affordable Project Outside Date to have caused one of the following to occur as further described in Section 4.7.1: (A) enter into Approved Ground Lease(s) for the entirety of Lot 13, whether pursuant to one or two Lot 13 Transfers or (B) satisfied the Alternative Affordable Project Development Plan Conditions Precedent; 16.4.1.2 Developer fails to commence in accordance with the Approved Plans and all Governmental Requirements: (i) the Market Rate Project Horizontal Improvements on the Market Rate Real Property within the applicable time periods for each Phase Tustin TIC DDA 03.11.25 (14M)(3) FINAL 127 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 set forth in the Schedule of Performance; or (ii) the Affordable Project Horizontal Improvements on the Lot 13 Real Property within the applicable time periods for each Phase set forth in the Schedule of Performance; 16.4.1.3 Developer fails to commence or Complete in accordance with the Approved Plans and all Governmental Requirements: (i) construction of the Vertical Improvements for any Building comprising the Market Rate Project Improvements within the applicable time period set forth in the Schedule of Performance; or (ii) construction of the Vertical Improvements of each Building comprising Affordable Project Improvements within the applicable time period set forth in the Schedule of Performance; 16.4.1.4 Developer abandons or, substantially suspends for reasons other than for Force Majeure Delay, for a period of six (6) consecutive months construction of the Market Rate Project or the Affordable Project following commencement of such construction; 16.4.1.5 The occurrence of a Developer Insolvency Event; 16.4.1.6 With respect to any Guarantor which has provided a Guaranty to the City, the occurrence of a Guarantor Illiquidity Event, unless Developer shall, within the time period required thereby, provide substitute security meeting the requirements of Section 8.9.3; 16.4.1.7 Except to the extent performed by Developer directly in its exercise of the Affordable Project Enforcement Obligations or Affordable Project Obligations, Developer or any Person acting under the direction of Developer pulls a grading or building permit for Lot 13 or commences any construction on the Lot 13 Real Property prior to a Lot 13 Transfer that satisfies all the requirements for such Lot 13 Transfer pursuant to this Agreement. 16.4.2 Conditions to Exercise of the Right of Reversion. The City shall be entitled to exercise the Right of Reversion as to a Phase at any time on or after the applicable Reversion Action Trigger Date and prior to the applicable Reversion Expiration Date, without regard to any notice and cure periods except as expressly provided in Section 16.4.1; provided that the City has provided written notice to Developer that the City elects to exercise its Right of Reversion and such notice states the date for the Reversion Event. The provisions of Section 16.5 shall be applicable to exercise of the Right of Reversion. The date for the Reversion Event shall not occur before the later of (i) the date that is ninety (90) Business Days after the date of such notice of exercise; and (ii) the date that is five (5) Business Days after Developer has had the opportunity to address the City Council at a public meeting regarding the Reversion Action Trigger. In the event that, following the first notice by the City of its election to exercise the Right of Reversion and prior to the Reversion Event, Developer or any Person on behalf of Developer cures the Reversion Action Trigger which is the basis for the City's exercise of its Right of Reversion, such Right of Reversion shall cease and terminate with respect to such Reversion Action Trigger only; provided that the provisions of this sentence shall not be applicable to any subsequent notice by the City of its election to exercise the Right of Reversion. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 128 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 16.4.3 Exercise and Effect of Right of Reversion. 16.4.3.1 Cooperation. If the City exercises its Right of Reversion in accordance with the provisions of this Agreement, Developer shall, and shall cause each Mortgagee (if any) to use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable law to consummate the revesting of the Reversion Property in the name of the City, including the execution and delivery of such other documents, certificates, agreements, deeds and other writings and the taking of such other actions as may be reasonably necessary to consummate such revesting and the other provisions of this Section 16.4. 16.4.3.2 Effect on Mortgages. Subject to the provisions of Section 16.6.2, a Reversion Event shall foreclose, defeat and render invalid each and every Construction Lien and Mortgage. 16.4.4 Sale of Reversion Property. Upon the revesting in the City of title to the Reversion Property, the City shall use reasonable efforts to resell the Reversion Property as soon and in such manner as the City shall find feasible, in accordance with applicable law and consistent with the objectives of this Agreement, to a qualified and responsible Person or Persons as determined by the City in its sole discretion who will assume the obligation of making or completing the Market Rate Project Improvements and the Affordable Project Improvements. Concurrently with such resale of the Reversion Property, and each part thereof, the proceeds thereof shall be applied in the following order and amounts to the extent of funds available and the City shall have no liability to Developer or any Person to the extent the balance is insufficient to pay any or all of the following amounts nor shall the City have any obligation to make payments to any Person except in accordance with the priorities and obligations set forth below: 16.4.4.1 Delinquencies. First, to repayment in full of all delinquent tax and delinquent assessment liens with respect to the portion of the Reversion Property sold. 16.4.4.2 Reimbursement to the City. Second, to repayment in full of City Liens and to reimburse the City on its own behalf for all costs and expenses incurred by the City, in connection with the recapture, management, maintenance, repair, and resale of the Reversion Property, or any part thereof and the enforcement of City's rights under this Agreement and the Other Agreements including City's exercise of the Right of Reversion, taxes, assessments, and other delinquent liens, if any, whether arising before or after the acquisition by the City of: a pro-rata share of the salaries of personnel engaged in such action (based on the amount of time spent by such personnel on such matters relating to the Reversion Property as compared to the aggregate amount of time worked by such personnel; all taxes, assessments and utility charges with respect to the Reversion Property; any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, Defaults or acts of Developer or any Successor Owner or each and every Person claiming by, through or under Developer or any Successor Owner (but specifically excluding any End Users); any expenditures made or obligations incurred with respect to the making or completion of the agreed improvements or any part thereof on the Reversion Property; all costs of sale and marketing, Tustin TIC DDA 03.11.25 (14M)(3) FINAL 129 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 including reasonable brokers' fees and costs incurred in the marketing and sale of the Reversion Property; all legal fees and expenses; all escrow and title fees and costs; all survey and due diligence fees and costs; all the Lien Release Amounts, if any, paid by the City to third parties; and any amounts otherwise owing to the City by Developer and/or any Successor Owner under this Agreement or the Other Agreements, including any City Liens and the actual cost incurred by the City to acquire environmental and pollution legal liability insurance coverage for the Reversion Property, including coverage for loss, remediation expense and legal defense expenses. 16.4.4.3 Release of Claims. Third, at the election of the City in its sole discretion, (i) to release any Claims affecting the Reversion Property (other than with respect to any Leasehold Mortgage with respect to a Ground Lease then remaining in effect and for which there is no pending default) in such amounts as may be determined by the City in its sole discretion to be required to satisfy such Claims or to reinstate service or work on the Reversion Property or to pay utility charges with respect to the Reversion Property; (ii) to make any payments necessary to be made to discharge or prevent from attaching or being made any subsequent Claims, encumbrances or liens due to obligations, Defaults or acts of Developer or any Successor Owner or each and every Person claiming by, through or under Developer or any Successor Owner; (iii) to make any expenditures or incur any obligations with respect to completion of the agreed improvements or any part thereof on the Reversion Property, including the construction to Completion of the Project Improvements; (iv) to pay all costs of sale and marketing, including reasonable brokers' fees and costs incurred in the marketing and sale of the Reversion Property; (v) to cure any defaults in Developer's obligations under any Ground Lease and/or the Lot 13 PDA, and (vi) to pay all legal fees and expenses, escrow and title fees and costs, survey and due diligence fees and costs; and any amounts otherwise owing to any other Person whether by Developer, Ground Lessee and/or any Successor Owner or otherwise with respect to the Project or any of the foregoing whether arising prior to or following the acquisition by the City of the Reversion Property and only to the extent that any Claim is not fully foreclosed or otherwise terminated by or as a result of the exercise by the City of the Right of Reversion. 16.4.4.4 Reimbursement to Developer. Fourth, to reimburse Developer up to the amount equal to the Repurchase Price attributable to the portion of the Reversion Property sold. 16.4.4.5 Balance Retained by the City. Any balance remaining after such reimbursements shall be retained by the City as its property. 16.4.5 Effect of Exercise of Right of Reversion. The provisions of Section 16.6 shall apply with respect to the Reversion Property following the revesting of title thereto in the City. Following the revesting of title pursuant to this Section 16.4, under no circumstances shall Developer or any lienholder have any right or claim to, or against, the Reversion Property, provided that any Leasehold Mortgage may remain a lien on the Affordable Housing Developer's leasehold interest in an Approved Ground Lease in accordance with the provisions of the applicable Subordination Agreement. Notwithstanding the acquisition of the Reversion Property by the City as provided in this Section 16.4, this Agreement shall remain in full force and effect with respect to the portions of the Property, the Market Rate Project Improvements and the Tustin TIC DDA 03.11.25 (14M)(3) FINAL 130 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Affordable Project Improvements not acquired by the City. The City's Right of Reversion shall not defeat or render invalid or limit any rights or interests provided in easements, covenants, conditions or restrictions in favor of third parties who are not Developer Affiliates that are approved by the City (or constituting a Permitted Transfer) and Recorded on the portion of the Property for which the City exercises its rights under this Section 16.4. 16.4.6 Cooperation and Grant of Easements. Concurrently with close of escrow for the Reversion Property, the Parties shall each reserve and/or grant to the other such roadway, utility, access and other easement rights as may be required by the other Parry and its successors in interest to develop the Property as a unified development and as contemplated by the Entitlements, this Agreement and the Other Agreements. In the event the City has declared a Repurchase Default, Developer shall not have the right to apply for building permits for Vertical Improvements or to commence construction thereof in a manner that affects or thwarts the ability of the City to exercise its Right of Repurchase. 16.4.7 Additional Terms Applicable To Right of Reversion. 16.4.7.1 In the event the City exercises its Right of Repurchase as to the Repurchase Property as provided in Section 16.3, its Right of Reversion as to the Reversion Property as provided in Section 16.4 shall terminate with respect to the Repurchase Property as of the date of the close of escrow conveying to the City title to the Repurchase Property. If the Right of Reversion is exercised it shall be subject during the periods listed below to the following additional terms: 16.4.7.2 From the Close of Escrow until the Reversion Expiration Date for Phase 1, the City shall have the right, but not the obligation, to exercise the Right of Reversion on the entirety of the Real Property. Following the Reversion Expiration Date for Phase 1 until the Reversion Expiration Date for Phase 2, the City shall have the right but not the obligation to exercise the Right of Reversion on the Real Property within Phase 2 only; provided that if Lot 13 is subject to one Ground Lease for all Parcels comprising a portion thereof, the Right of Reversion shall apply only to the Market Rate Parcels within Phase 2 and shall not apply to the portion of Lot 13 within Phase 2 (i.e., Building 6 as shown on the Phasing Plan). 16.4.8 Survival of Provisions. The provisions of this Section 16.4 shall survive the termination of this Agreement. 16.5 Access and Inspection. From and after the occurrence of any Repurchase Default or Reversion Action Trigger, the City and its appointed and elected officials, agents, attorneys, employees, contractors, consultants and representatives shall have the non-exclusive right, exercising such right in the Proprietary Capacity of the City, to enter upon at any reasonable time, at its own cost and expense entirely and upon not less than forty-eight (48) hours prior telephonic or email notice to Developer, the Potential Returned Property for the purpose of making such feasibility and other studies, inspections, appraisals, audits, tests, evaluations, investigations, surveys and reports of the Potential Returned Property (including engineering and environmental audits, evaluations and Tustin TIC DDA 03.11.25 (14M)(3) FINAL 131 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 tests relative to the presence of any Hazardous Material within, under or upon the Potential Returned Property) (collectively, "City Inspections") as City may elect to make or obtain in connection with its exercise of its Right of Repurchase or Right of Reversion; provided that during such City Inspections, the City shall use commercially reasonable efforts to minimize its interference with Developer's activities on the Property. The City shall indemnify, protect and defend Developer against any and all Claims which Developer may incur or suffer by reason of any acts or omissions to act of the City or its appointed and elected officials, agents, attorneys, employees, contractors, consultants and representatives in the conduct of any City Inspections on the Potential Returned Property, provided that the foregoing indemnity shall not apply to the extent of (i) the gross negligence, willful misconduct or fraud of Developer or any of the Developer Representatives, or (ii) Hazardous Materials conditions unless such condition is exacerbated by, or any Release caused by, negligent acts of City or its employees, consultants or contractors, or (iii) the acts or the negligence, gross negligence, or willful misconduct of Developer or any of the Developer Representatives in performance of work on the Development Parcels Accruing prior to the close of escrow pursuant to this Article 16; provided that in no event shall the foregoing apply with respect to inspections conducted by the City in its Governmental Capacity. 16.6 Obligations and Release Following Repurchase or Reversion. 16.6.1 Developer, City and Ground Lessee Obligations. Except as set forth in Sections 16.3 and 16.4, if the City exercises the Right of Repurchase or the Right of Reversion, the obligations of Developer under this Agreement and the Other Agreements, and Guarantor under the Guaranty and the Equity Investor under the Equity Commitment and the obligations of the City under this Agreement and the Other Agreements shall be released and terminated as to the Returned Property as of the close of escrow associated with such repurchase or as of the Reversion Event, as applicable, provided that the foregoing does not release Developer, Equity Investor, Guarantor or the Guaranty or the City with respect to matters Accruing prior to the date of such termination nor does it release any Ground Lessee from the obligations under any Ground Lease or under the Other Agreements with respect to such Returned Property. 16.6.2 City Assumption of Ground Lease Obligations. Upon the City's acquisition of Returned Property that includes a portion of the Lot 13 Real Property (i) any Approved Ground Lease and any Leasehold Mortgage then in effect with respect to a Parcel comprising a portion of the Lot 13 Real Property shall remain in effect and (ii) the City shall assume the obligations of ground lessor under any Approved Ground Lease then in effect with respect to such Parcel, in each case described in the foregoing clauses i) and iisubject to the provisions of any applicable Subordination Agreement and the terms of any direct agreement between the City and the Ground Lessee. 16.7 Cooperation of Developer. If the City exercises its Right of Repurchase or Right of Reversion in accordance with the provisions of this Agreement, Developer shall use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or desirable under applicable law to consummate the repurchase of the Repurchase Property or revesting of the Tustin TIC DDA 03.11.25 (14M)(3) FINAL 132 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Reversion Property, as the case may be, including the execution and delivery of such other documents, certificates, agreements, deeds and other writings and the taking of such other actions as may be reasonably necessary to consummate such transactions. 17. Mortgages and Mortgagee Protection for Affordable Project. 17.1 Restrictions On Mortgage. 17.1.1 Generally. Until issuance of a Certificate of Compliance with respect to a Parcel, Developer shall not encumber such Parcel or the Market Rate Project Improvements, the Publicly Accessible Common Area, Publicly Accessible Common Area Improvements or the Boundary Landscape Area associated with such Parcel with any Mortgage. Notwithstanding the foregoing, an Affordable Housing Developer may during the term of an Approved Ground Lease (i) enter into Construction Loans each of which is secured by a Permitted Leasehold Mortgage encumbering the leasehold interest of Affordable Housing Developer in the Lot 13 Property and Affordable Project Improvements under such Approved Ground Lease and consistent with the requirements set forth in this Article 17, and (ii) enter into Construction Loans, each of which is secured by a Mortgage in favor of an Affiliate Leasehold Mortgagee and encumbering the leasehold interest of Affordable Housing Developer in the Lot 13 Property and Affordable Project Improvements under such Approved Ground Lease and consistent with the requirements set forth in this Article 17 (any such Mortgage in favor of an Affiliate Leasehold Mortgagee being referred to as an "Affiliate Leasehold Mortgage"; an Affiliate Leasehold Mortgage or a Permitted Leasehold Mortgage is referred to as a "Leasehold Mortgage"). With respect to any Leasehold Mortgage, it shall be the obligation of Developer to review and confirm that all conditions to entering into a Leasehold Mortgage have been satisfied, and Developer and Affordable Housing Developer shall certify the same to the City in writing prior and as a condition to entering into a Leasehold Mortgage. Any Mortgage or other encumbrance of any Parcel in violation of this Article 17 shall be a prohibited Transfer and a Material Default by Developer. 17.1.2 Permitted Leasehold Mortgage and Permitted Leasehold Mortgagee Definitions; Affiliate Leasehold Mortgage. A Mortgage shall be a Permitted Leasehold Mortgage and a Mortgagee shall be a Permitted Leasehold Mortgagee if: (i) such Mortgagee is a Qualified Institutional Lender or other lender identified in the last Financing Plan approved by the City in accordance with Section 4.6; (ii) the terms of its Mortgage and all of the loan documents executed in connection with the corresponding Construction Loan are materially consistent with the portion of the Financing Plan approved by the City in Section 4.6 and the requirements of Section 4.7 and this Article 17; (iii) complete copies of the loan documents have been provided to the City in accordance with Section 17.2.3 and the City has not identified that such loan documents fail to materially comply with the requirements of Sections 17.1 through 17.3; (iv) the loan proceeds will be used to finance the entitlement, development and the construction of the Lower Income Units and other Affordable Project Improvements thereon and for associated costs and expenses (including financing costs) and for no other purpose; and (v) the fee interest of Developer in Lot 13, including the fee interest of Developer to the Publicly Accessible Common Areas and the fee interest of Developer (if any) to the Publicly Accessible Common Area Improvements on Lot 13 (as opposed to the Affordable Housing Developer's Tustin TIC DDA 03.11.25 (14M)(3) FINAL 133 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 ground lease interest in Lot 13, the Publicly Accessible Common Areas and the Publicly Accessible Common Area Improvements) is not encumbered by the Mortgage and is subordinated to this Agreement, the Other Agreements and the fee interest of Developer in Lot 13 pursuant to the terms and conditions of the applicable Subordination Agreement. A Mortgage shall be an Affiliate Leasehold Mortgage if it is in favor of an Affiliate Leasehold Mortgagee, if it is by its terms in all respects subordinated in lien and right of repayment to each Permitted Leasehold Mortgage and the Construction Loan secured by each Permitted Leasehold Mortgage, and if it otherwise complies with the requirements of clauses (ii) through (v) of the immediately preceding sentence. 17.2 Restrictions on Transfer to Mortgagee. In addition to the other restrictions on Mortgages set forth in this Agreement, the following requirements shall apply to the Real Property and each Parcel thereof and all Improvements thereon: 17.2.1 Neither this Agreement, nor the Property, nor any portion thereof (including the Lot 13 Property) or all or any portion of the Market Rate Project Improvements or the Affordable Project Improvements shall be cross collateralized with any other contract or real or personal property, nor shall this Agreement or the Property (or any portion thereof) or all or any portion of the Market Rate Project Improvements or the Affordable Project Improvements serve as additional security for any other loan by a Mortgagee, nor any debt other than a Construction Loan. In addition, no Leasehold Mortgage shall serve as additional security for any loan other than a Construction Loan, or any other debt of Developer or Affordable Housing Developer and shall not be cross collateralized or cross defaulted with any other indenture of mortgage or deed of trust, hypothecation, pledge, assignment for security purposes, bond, grant of taxable or tax-exempt funds from a governmental agency or other security interest. 17.2.2 Developer shall not transfer the Property or any portion thereof (including the Lot 13 Property) or any interest therein or all or any portion of the Market Rate Project Improvements or the Affordable Project Improvements or any interest therein to a third party for purposes of a sale -leaseback transaction or permit Affordable Housing Developer to do SO. 17.2.3 Developer shall deliver to the City loan documents for each proposed Leasehold Mortgage, including all documents and guaranties securing the interest of the proposed Leasehold Mortgagee, with initial drafts of the core documents (i.e., the Loan Agreement, Deed of Trust, Assignment of Rent (if applicable), Environmental Indemnity and any Guaranty Agreement) to be delivered at least thirty (30) Business Days prior to the proposed date of entry into the Leasehold Mortgage, and substantially final versions, which shall be red -lined to show changes from the drafts reviewed by the City, to be delivered at least five (5) Business Days prior to the date of entry into the Leasehold Mortgage, and executed copies to be delivered within three (3) Business Days after the date of entry into the Leasehold Mortgage, and either indicating no change in the previously submitted forms or providing documents red -lined to show changes from the versions previously delivered to the City), and such other information as may be reasonably Tustin TIC DDA 03.11.25 (14M)(3) FINAL 134 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 requested by the City to confirm the matters that require the City's determinations described in Section 17.1 and this Section 17.2, provided that all initial drafts of the documents related to any Leasehold Mortgage that are not loan agreements, trust indentures, deeds of trust, indemnities and guaranties (or documents performing similar functions) may be provided thereafter, but in any event no later than the earlier of one (1) Business Day after receipt by Developer and ten (10) calendar days prior to entering into the Leasehold Mortgage. The City shall determine, in its reasonable discretion, whether the loan documents for a proposed Leasehold Mortgage comply with the requirements of this Agreement, including: 17.2.3.1 With respect to any Permitted Leasehold Mortgage, whether the proposed Permitted Leasehold Mortgagee is a Qualified Institutional Lender or, if the proposed Permitted Leasehold Mortgagee is not a Qualified Institutional Lender, whether the proposed Permitted Leasehold Mortgagee was identified in the Affordable Project Financing Plan or Updated Affordable Project Financing Plan approved by the City. With respect to any Affiliate Leasehold Mortgage, whether the proposed Mortgagee is an Affiliate Leasehold Mortgagee. 17.2.3.2 The loan documents shall include a subordination agreement in substantially the form and substance of the subordination agreement attached as Attachment 24A (in the case of a Permitted Leasehold Mortgage) or Attachment 24B (in the case of an Affiliate Leasehold Mortgage) or if there are modifications proposed thereto, in such other form and substance as shall be approved by the City, Developer and the applicable Mortgagee, each in its reasonable discretion (each referred to as a "Subordination Agreement"), provided that it shall not be unreasonable for the City to withhold its approval to any form of Subordination Agreement that, in the case of any Subordination Agreement with respect to an Affiliate Leasehold Mortgage, differs in any substantive respect from the form of Attachment 24B, or that, in the case of any other Subordination Agreement, would have the effect, among other things, when compared to the terms reflected in Attachment 24A, of (i) imposing on the City any additional cost, liability, or obligation that is more than administrative or transactional in nature, (ii) altering the extent or priority of the interests described in Attachment 24A, or (iii) creating a conflict with an express requirement of this Agreement or the Other Agreements. The Subordination Agreement shall be Recorded by the City at the Affordable Project Closing, immediately after the Mortgage to which it relates is Recorded. 17.2.3.3 Developer shall not obtain or utilize Mezzanine Financing or permit Affordable Housing Developer to do so without the prior consent of the City in its sole discretion. 17.2.3.4 Subject to the terms set forth in the applicable Subordination Agreement, all Mortgages and all loan documents for any loan secured thereby shall be subject and subordinate to City Liens. In addition, and without limiting the applicability of the foregoing, Mortgages of the fee interest in all or any portion of the Real Property, if any, shall also be subject and subordinate to this Agreement, any Joint Use Agreement and the Other Agreements. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 135 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 17.3 Acknowledgment by City of Permitted Leasehold Mortgagee. Within fifteen (15) Business Days following Developer's delivery of the first set of loan documents and information required under Section 17.2.3 and within ten (10) Business Days following delivery of a set of modified documents and information that are substantively responsive to City's initial comments to the same, (i) the City shall acknowledge receipt of the same and (ii) in its response, if not previously addressed, the City shall confirm in writing to Developer whether the proposed Leasehold Mortgagee is a Permitted Leasehold Mortgagee or Affiliate Leasehold Mortgage, or explain why the City reasonably considers the proposed Mortgagee not to be a Permitted Leasehold Mortgagee or Affiliate Leasehold Mortgagee, and (iii) the City shall confirm in writing to Developer whether it has determined, in its reasonable discretion, if the loan documents comply with the requirements of Sections 17.1 and 17.2, or explain why the City reasonably considers the loan documents not to comply. If the loan documents are determined by the City, in its reasonable discretion, not to comply, then Developer shall promptly cause revisions in the loan documents and resubmit the same to the City for further consideration pursuant to this Section 17.3 and, if requested by Developer, the City shall agree to meet and confer with Developer and such other Persons as Developer may request with respect to open issues pertaining to the loan documents. 17.4 Change in Loan Documents, Special Restrictions and/or Landscape Installation and Maintenance Agreement. 17.4.1 Following approval by the City of loan documents and the Subordination Agreement pursuant to Section 17.3 (and subject to the terms and conditions of the Subordination Agreements), Developer shall not modify or permit Affordable Housing Developer to modify those loan documents without the prior written approval of the City provided that the City shall provide specific, detailed responses should it object to any terms and conditions and its approval shall not be unreasonably withheld, conditioned or delayed, and provided further that it shall not be unreasonable for the City, among other things, to withhold its consent to any modification of the loan documents if the modifications would render the loan documents inconsistent with the provisions of this Article 17 or with the most recent Updated Affordable Project Financing Plan for the Affordable Project. Nothing in this Agreement shall require the City's consent for any Leasehold Mortgage to modify any performance or other date set forth in any loan document and/or to waive any provision of any loan document. 17.4.2 City and Developer hereby agree that neither City nor Developer shall unreasonably withhold its consent to approval of any requested modifications to either the Special Restrictions or the Landscape Installation and Maintenance Agreement made by any Permitted Leasehold Mortgagee in connection with and prior to the funding of the related financing associated with a Lot 13 Transfer; provided that it shall not be unreasonable for the City to withhold its approval of any proposed modification that would have the effect, among other things, when compared to the terms of the particular instrument then in effect (or if not then in effect, in the form attached to this Agreement) of (i) removing or reducing the extent of an obligation of the Lot 13 Ground Lessee under such agreement, unless Developer agrees to assume such obligation within that document, (ii) removing or reducing the extent of an obligation of any Owner to the Tustin TIC DDA 03.11.25 (14M)(3) FINAL 136 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 City thereunder, (iii) imposing on the City any additional cost, liability, or obligation that is more than administrative or transactional in nature, (iv) altering the priority of the interests described in such instrument or the obligations of any Mortgagee or successor Ground Lessee to comply with the terms of such instruments or to cure prior defaults in accordance with the terms as currently stated, or (v) creating a conflict with an express requirement of this Agreement. 17.5 Condemnation or Insurance Proceeds. Except as might be otherwise expressly set forth in an Approved Ground Lease, the rights of any Permitted Leasehold Mortgagee pursuant to its Permitted Leasehold Mortgage to receive condemnation or insurance proceeds which are otherwise payable to such Permitted Leasehold Mortgagee or to a Party which is its mortgagor shall not be impaired. 17.6 Constructive Notice and Acceptance. Until such time as the applicable Certificate of Compliance as to a Parcel is Recorded and subject to the provisions of Article 2 or this Article 17 and the terms of any applicable Subordination Agreement, all of the provisions contained in this Agreement shall be binding upon and benefit any Person who acquires fee title to a portion of the Property. 17.7 Bankruptcy Affecting Developer. Developer and City hereby agree that this Agreement (including the Right of Repurchase and Right of Reversion), the Quitclaim Deed and the Other Agreements shall contain and consist of covenants running with the land and that neither this Agreement, the Quitclaim Deed or the Other Agreements shall be subject to rejection in bankruptcy, and Developer hereby waives its rights to reject this Agreement, Quitclaim Deed and the Other Agreements in bankruptcy. 18. General Provisions. 18.1 Applicable Law, Consent to Jurisdiction; Service of Process. This Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State, irrespective of California's choice -of -law principles. Developer and the City agree that any disputes arising between them in connection with this Agreement or in connection with or under any instrument, agreement or document provided for or contemplated by this Agreement, including in connection with the execution of this Agreement, the Close of Escrow or any other matter arising under, related to or in connection with this Agreement (including a determination of any and all issues in such dispute, whether of fact or of law) shall be tried and litigated exclusively in the Superior Court of the County of Orange in the State, in any other appropriate court of that county, or in the United States District Court for the Central District of California. This choice of venue is intended by Developer and the City to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between or among Developer and the City with respect to or arising out of or related to this Agreement in any jurisdiction other than that specified in this Section 18.1. Each Party hereby waives any right that it may have to assert forum non convemens or similar doctrine or to object to venue with respect Tustin TIC DDA 03.11.25 (HM)(3) FINAL 137 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 to any proceeding brought in accordance with this Section 18.1 and stipulates that the state of California and federal courts located in the County of Orange, in the State, shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or proceeding arising out of or related to this Agreement. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Section 18.1 by means of registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement, or in the manner set forth in Section 18.66or (iii) of this Agreement pertaining to notice. Any final judgment rendered against a Party in any Action shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. 18.2 Legal Fees and Costs. If any Parry to this Agreement institutes any action, suit, proceeding, counterclaim or other proceeding for any relief against another Party, declaratory or otherwise (collectively an "Action"), to enforce the terms hereof or to declare rights under this Agreement or with respect to any inaccuracies or material omissions in connection with any of the covenants, representations, warranties or obligations on the part of the other Party to this Agreement, then the Prevailing Party (defined below) in such Action shall be entitled to have and recover of and from the other Party all costs and expenses of the Action, including (i) the Prevailing Party's reasonable attorneys' fees (which shall be payable at the contractual hourly rate for City's litigation counsel at the time the fees were incurred, but in no event more than $400.00 per hour with this rate being used to calculate the attorneys' fees to be recovered by the Prevailing Party regardless of whether the City or another Person is the Prevailing Party), and (ii) costs actually incurred in bringing and prosecuting such Action and/or enforcing any judgment, order, ruling or award (collectively, a "Decision") granted therein, all of which shall be deemed to have accrued on the commencement of such Action and shall be paid whether or not such Action is prosecuted to a Decision. Any Decision entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including reasonable attorneys' fees and expert fees and costs (collectively "Costs") incurred in enforcing, perfecting and executing such judgment. For the purposes of this paragraph, Costs shall include in addition to Costs incurred in prosecution or defense of the underlying action, reasonable attorneys' fees, costs, expenses and expert fees and costs incurred in the following: (A) post judgment motions and collection actions; (B) contempt proceedings; (C) garnishment, levy, debtor and third -party examinations; (D) discovery; (E) bankruptcy litigation; and (F) appeals of any order or judgment. "Prevailing Party" within the meaning of this Section 18.2 includes a Party who agrees to dismiss an Action in consideration for the other Party's payment of the amounts allegedly due or performance of the covenants allegedly breached or obtains from a court of competent jurisdiction substantially the relief sought by such Party. 18.3 Memorandum of DDA; Modifications or Amendments. The Parties shall cause the Memorandum of DDA to be Recorded concurrently with the Close of Escrow. No amendment, change, modification or supplement to this Agreement shall be valid and binding on any of the Parties unless it is represented in writing and signed by each of the Parties hereto. Except with respect to changes to Attachments 1, 2A, 2B and 13A, and/or changes Tustin TIC DDA 03.11.25 (14M)(3) FINAL 138 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 to Attachment 7 that extend the date of Completion of the Market Rate Project Improvements and/or the Affordable Project Improvements, as applicable, by more than six (6) months (exclusive of any extensions resulting from any Force Majeure Delay which shall be subject to the limitations set forth in Section 18.7), each of which shall require consent of the City Council, the Parties (with the City Manager or his or her designee having delegated authority to act on behalf of the City) may by mutual written agreement (in the Parties' respective sole discretion) update and substitute any updated Attachment for the Attachment attached hereto as of the Effective Date, and such substitution shall be deemed an administrative amendment of this Agreement and shall not require Recording of an amendment of the Memorandum of DDA. In addition, the City Manager is authorized, without further approval of the City, to waive or modify any City Closing Conditions or to make them conditions subsequent to the close of escrow under this Agreement. The provisions of this Section do not modify or supersede the retention of authority set forth in Section 18.11.3. 18.4 Further Assurances. Each of the Parties hereto shall execute and deliver at their own cost and expense, any and all additional papers, documents, or instruments, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of its obligations under this Agreement in order to carry out the intent and purposes of this Agreement. 18.5 Rights and Remedies Are Cumulative, Limitation on Damages. 18.5.1 Cumulative Remedies. Except with respect to the rights and remedies expressly declared to be exclusive in this Agreement or the Other Agreements, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Material Default or any other Material Default by the other Party. Except as otherwise specifically set forth in this Agreement, and subject to Section 18.5.2, wherever a Parry has a right to damages for the Material Default of another Parry (i) such damages shall be limited to direct (actual) damages for the Material Default of the other Party, and (ii) each of the Parties, on behalf of itself and its successors and assigns, hereby expressly waives, releases and relinquishes any and all right to any lost profits, incidental, special, collateral, expectation, anticipation, indirect, consequential, exemplary or punitive damages or losses (it being understood that consequential or punitive damages owed by such Party to a third party shall constitute direct actual damages or losses of such Party). 18.5.2 Limitation on Damages Payable by the City. Developer acknowledges that the City would not have entered into this Agreement if the City could become liable for significant damages under or with respect to this Agreement and the Other Agreements. Consequently, and notwithstanding any other provision of this Agreement, except for (i) the monetary damages that may arise from the City's obligations referenced in Section 18.5.3, and (ii) the payment of attorneys' fees in accordance with Section 18.2 and court costs, the City shall not be liable in damages under this Agreement or any Other Agreement to Developer or to any Successor Owner and Developer, on behalf of itself, each Successor Owner and each and every Tustin TIC DDA 03.11.25 (14M)(3) FINAL 139 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Person claiming by, through or under Developer or any Successor Owner hereby waives any and all rights to claim damages of any kind or nature from the City except as set forth in Section 18.5.3. 18.5.3 Special Circumstances Where Damages may be Payable by the Cam. Subject to Section 18.5.1, the limitations on damages set forth in Section 18.5.2 shall not preclude Developer from seeking (i) payment of amounts, if any, which the City is obligated to pay to Developer or Escrow Holder pursuant to Sections 1.8.3, 7.4.1, 7.4.4, 14.2.5, 14.3.2 or 18.2, or Article 15 provided that (A) the provisions of Section 18.5.1 shall apply to such claims and payments, and (B) Developer shall not be entitled to any damages in addition to the actual amounts owed by the City to Developer pursuant to this Agreement or the Other Agreements, or (ii) damages which arise out of a breach of the City's representations and warranties contained in Sections 3.3 or 18.12.2, provided that the amount of any damages payable pursuant to this clause fW shall be the lesser of (x) actual damages, or (y) Five Hundred Thousand Dollars ($500,000.00) or (z) the value of any of the rights reserved to the City pursuant to Section 1.2.2.1 through 1.2.2.3 and as the same shall be included in the Quitclaim Deed. 18.5.4 Right to Specific Performance. In the event the City is in Material Default following the Close of Escrow, Developer shall be entitled to seek mandamus or special writs, specific performance, or injunctive relief in order to enforce the rights expressly granted to Developer pursuant to this Agreement. For purposes of clarity, in the event that the City is obligated to pay any amounts to Developer pursuant to this Agreement, and the City fails to pay such amounts to Developer as and when required by this Agreement, Developer shall be entitled to seek specific performance of such obligation, notwithstanding the other provisions of this QPctinn 1 R 5 18.6 Notices, Demands and Communications between the Parties. All notices, demands, consents, requests and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed conclusively to have been duly given (i) when hand delivered to the other Parry; (ii) three (3) Business Days after such notice has been sent by U.S. Postal Service via certified mail, return receipt requested, postage prepaid, and addressed to the other Party as set forth below; (iii) the next Business Day after such notice has been deposited for overnight delivery with an overnight delivery service reasonably approved by the Parties (Federal Express, Overnite Express, United Parcel Service and U.S. Postal Service are deemed approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as set forth below with next -business -day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider; or (iv) when transmitted if sent by email (referencing "TUSTIN LEGACY DDA" in the subject matter line) to the email address set forth below; provided that notices given by email shall not be effective unless either (A) a duplicate copy of such notice is promptly sent by any method permitted under this Section 18.6 other than by email (provided that the recipient Party need not receive such duplicate copy prior to any deadline set forth in this Section); or (B) the receiving Parry delivers a written confirmation of receipt for such notice either by email or any other method permitted under this Section. Any notice given by email shall be deemed received on the next Business Day if such notice is received after 5:00 p.m. Pacific Time or on a non -Business Day. Unless otherwise Tustin TIC DDA 03.11.25 (14M)(3) FINAL 140 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 provided in writing, all notices with respect to this Agreement shall be addressed as follows: City: City Manager City of Tustin 300 Centennial Way Tustin, CA 92780 Attention: Aldo E. Schindler Email: citymanagerktustinca.org With a copy to: Deputy City Manager — Real Property City of Tustin 300 Centennial Way Tustin, CA 92780 Attention: Brian Moncrief Email: DCM-RP(ctustinca.org And with a copy to: City Attorney Woodruff & Smart, APC 555 Anton Blvd., Suite 1200 Costa Mesa, CA 92626 Attention: David Kendig, Esq. Email: dkendigkwoodruff.law And with a copy to: Hepner & Myers LLP 1241 Johnson Avenue, Suite 360 San Luis Obispo, CA 93401 Attention: Amy E. Freilich. Esq. Email: afreilichkHepnerMyers.com Developer: Kevin Roberts Senior Vice President Irvine Company Apartment Development 550 Newport Center Drive Newport Beach, CA 92660 Email: kmroberts(&,irvinecompan. Jay D'Elia Vice President and Assistant General Counsel The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Email: jadelia&irvinecompan. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 141 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 And with a copy to: Holland & Knight LLP 560 Mission Street, Suite 1900 San Francisco, CA 94105 Attention: David L. Preiss Email: david.preisskhklaw.com In addition, the City agrees that, if any Approved Ground Lease is in effect, contemporaneously with the City giving any Default Notice to Developer, the City will provide a copy of the Default Notice, in the manner otherwise specified for giving notice to a Party, to the following: (a) the Affordable Housing Developer, at the address provided for the Affordable Housing Developer in the Approved Ground Lease or in any assignment of Affordable Housing Developer's interest therein Recorded against the Lot 13 Real Property; and (b) if requested by the Affordable Housing Developer in a writing delivered to the City in accordance with this Section 18.6, to counsel for the Affordable Housing Developer and to the Tax Credit Investor, at their most recent addresses for notices provided to the City in such request. No failure by the City to provide any Default Notice to or at the request of the Affordable Housing Developer shall affect the validity or effect of such Default Notice. Any Parry may by written notice to the other Party in the manner specified in this Agreement change the address to which notices to such Party shall be delivered. 18.7 Delay. 18.7.1 Definition of Force Maieure Delay. "Force Majeure Delay" shall mean the occurrence of any of the following events when such event is beyond the control of the First Party and such Party's officers, directors, employees, contractors, consultants, agents and representatives and is not due to an act or omission of such Party or its officers, directors, employees, contractors, consultants, agents or representatives or other Person for whom such Party may be contractually or legally responsible, which directly, materially and adversely affects the ability of the First Party to meet its non -monetary obligations under this Agreement, including the deadlines imposed by the Schedule of Performance, or the ability of Developer to Complete the Market Rate Project or the Affordable Project, as applicable, and which events (or the effect of which events) could not have been avoided by use of commercially reasonable efforts by the Party claiming Force Majeure Delay: 18.7.1.1 Civil Unrest. An epidemic, pandemic, widespread disease, blockade, quarantine, rebellion, war, insurrection, act of terrorism, strike or lock -out, riot, act of sabotage, civil commotion, act of a public enemy, freight embargo, or lack of transportation; 18.7.1.2 Unforeseeable Conditions. Reasonably unforeseeable physical condition of the Real Property including the presence of Hazardous Materials; 18.7.1.3 Casualty. Fire, earthquake or other casualty, including liquefaction resulting from an earthquake, in each case only if causing material physical destruction or damage on the Real Property; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 142 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 18.7.1.4 Litigation. Any lawsuit seeking to restrain, enjoin, challenge or delay any issuance of any of the Entitlements or seeking to restrain, enjoin, challenge, or delay construction of the Market Rate Project or the Affordable Project, as applicable, which is defended by the First Party; 18.7.1.5 Change of Law. The passage of a referendum or initiative that results in the inability of such Party to perform its material obligations under this Agreement or any change in law by Governmental Authorities other than the City; provided that the foregoing shall not apply to a Party's performance regarding the Close of Escrow, which are governed by Articles 7 and 15; 18.7.1.6 Weather. Unusually severe weather conditions not reasonably anticipatable for the City of Tustin, based upon U.S. Weather Bureau climatological reports for the months included plus a report indicating average precipitation, temperature, etc. for the last ten (10) years from the nearest reporting station; 18.7.1.7 Materials Shortage. Inability to secure adequate supplies or types of materials necessary to prosecute construction of the Project hereunder (but not an increase in material costs); and/or 18.7.1.8 Delays Caused by Governmental Authorities other than Cam. Delay in time to obtain, and comply with, any permits issued or to be issued by any state or federal governmental entities and which are required for construction of the Project. 18.7.2 Limitation. The term "Force Majeure Delay" shall be limited to the matters listed in Section 18.7.1 and specifically excludes from its definition the following matters which might otherwise be considered Force Majeure Delay: 18.7.2.1 Entitlements. The suspension, termination, interruption, denial or failure to obtain or nonrenewal of any of the Entitlements, permits, including Development Permits, license, consent, authorization or approval which is necessary for the development of the Market Rate Project or the Affordable Project, as applicable, except for any such matter resulting from a lawsuit or referendum as described in Section 18.7.1.4 or 18.7.1.5; 18.7.2.2 Foreseeable Changes in Governmental Requirements. Any change in Governmental Requirements by the City or any such change by any Governmental Authority other than the City which was formally proposed or was otherwise reasonably foreseeable at the Effective Date; 18.7.2.3 Failure to Perform Obligations. Failure of Developer, Affordable Housing Developer or any Successor Owner or other Person to perform any obligation to be performed by Developer or any Successor Owner or such other Person under this Agreement as the result of adverse changes in the financial condition of Developer or such Successor Owner or other Person, as applicable; Tustin TIC DDA 03.11.25 (14M)(3) FINAL 143 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 18.7.2.4 Failure to Provide Financial Security. Failure of Developer or any Successor Owner to provide financial security required by this Agreement when due or to submit evidence of financing of the Market Rate Project or the Affordable Project, as applicable, or failure to perform any obligation to be performed by Developer or any Successor Owner or other Person under this Agreement as the result of adverse changes in market conditions; 18.7.2.5 Failure to Submit Required Documentation. Failure of the First Party to submit documentation as and when required by this Agreement; 18.7.2.6 Failure to Submit Basic Concept Plan or Other Plans and Entitlements. Failure of Developer, Affordable Housing Developer or a Successor Owner, as applicable, to submit a modification of the Basic Concept Plan, and/or applications for Entitlements or Development Permits required for construction of the Market Rate Project Improvements or the Affordable Project Improvements, and/or development of the Market Rate Project or the Affordable Project, as applicable; 18.7.2.7 Failure to Maintain Required Insurance. Failure to acquire, maintain and submit evidence of insurance policies as required by Article 11; 18.7.2.8 Failure to Execute Documents. Failure of the First Party to execute documents; and 18.7.2.9 Other Matters. All other matters not caused by the Second Party and not listed in Section 18.7.1.1 through 18.7.1.8. 18.7.3 Procedure. If any Party ("First Party") believes that it is entitled to an extension of time due to Force Majeure Delay, it shall notify the other Party ("Second Party") in writing within ninety (90) calendar days from the date upon which the First Party becomes aware of such Force Majeure Delay, generally describing the Force Majeure Delay and its date of commencement. Upon written request from the Second Party, the First Party shall promptly provide the following information with respect to such Force Majeure Delay: a more detailed description of the Force Majeure Delay, when and how the First Party obtained knowledge thereof, the date the First Party understands the event commenced, the steps the First Party anticipates taking to respond to such Force Majeure Delay, and the estimated delay resulting from such Force Majeure Delay and such other information as the Second Party may reasonably request. The extension for Force Majeure Delay shall be granted or denied in writing by the Second Parry in its reasonable discretion in compliance with this Section 18.7. If the First Party fails to notify the Second Parry in writing of its request for a given Force Majeure Delay within the ninety (90) calendar days specified above, there shall be no extension for such Force Majeure Delay. 18.7.4 Extension of Time Periods. Except as otherwise specifically set forth in this Agreement, all time periods under this Agreement, including the Schedule of Performance and the dates provided in Section 16.4 relating to non -monetary obligations under this Agreement shall be extended for Force Majeure Delay in accordance with this Section 18.7, such that the First Party shall not be in default for an excused Force Majeure Delay; provided that the limitations set forth on the maximum period for Force Majeure Delay in this Agreement shall in all cases apply. Tustin TIC DDA 03.11.25 (14M)(3) FINAL 144 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 18.7.5 Not Applicable to Reversion Action Trigger Dates. Except as specifically provided in this Agreement, the Reversion Action Trigger Dates shall not be extended for Force Majeure Delay. 18.7.6 Limitations on Force Majeure Delay. The outside dates in the Schedule of Performance for commencement and/or Completion of the Market Rate Improvements or the Affordable Project Improvements may be extended individually, provided that the aggregate of Force Majeure Delay with respect to such commencement and/or Completion dates shall not exceed twelve (12) months for each Phase of the Project. 18.8 Conflict of Interest. No appointed or elected official or employee of the City shall have any personal interest, direct or indirect, in this Agreement nor shall any official or employee participate in any decision relating to this Agreement which affects his interests or the interests of any corporation, partnership, or association in which he or she is directly or indirectly interested. 18.9 Non -liability of City Officials and City or Developer Employees. No elected or appointed official, representative, employee, agent, consultant, legal counsel or employee of the City shall be personally liable to Developer, any successor or assign of Developer, Affordable Housing Developer or any Successor Owner or Successor Ground Lessee in the event of any Default or breach by the City for any amount which may become due to any of the foregoing Persons or on any obligation under the terms of this Agreement or any direct agreement between the City and Affordable Housing Developer. No natural person serving as an officer, director, member, shareholder, partner in, representative, agent, consultant, legal counsel or employee of Developer or Affordable Housing Developer shall be personally liable to the City or any Successor Owner of the City in the event of any Default or breach by Developer or Affordable Housing Developer for any amount which may become due to the City or any Successor Owner of the City or on any obligation under the terms of this Agreement. 18.10 Inspection of Books and Records. The City shall have the right at all reasonable times, upon ten (10) Business Days prior written notice but, unless Developer or Affordable Housing Developer is then in Default, not more than one time per twelve (12) month period during the Term, to inspect the books and records of Developer pertaining to the Market Rate Project, the Affordable Project, the Property, the Market Rate Project Improvements and/or the Affordable Project Improvements and the areas subject to any encroachment permit, only as pertinent to the purposes of this Agreement. 18.11 Consents and Approvals. 18.11.1 Consent. In any instance in which a Parry's has a right to approve or disapprove of any matter with respect to which such Party's approval is required by any of the provisions of this Agreement, such approval shall only be effective if given in writing and except as otherwise provided in this Agreement (e.g., where reasonable discretion review and approval is Tustin TIC DDA 03.11.25 (14M)(3) FINAL 145 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 expressly indicated) shall be in the sole discretion of the Parry whose approval is required and shall not be unreasonably delayed; provided that nothing in this Agreement shall modify the City's regulatory authority. 18.11.2 Deemed Submitted. Any matter required by this Agreement to be submitted by Developer to the City shall be deemed submitted upon the submittal to the Deputy City Manager — Real Property or designee, provided that the provisions of this Section shall not amend or modify the requirement to deliver notice pursuant to Section 18.6 whenever notice is provided for in this Agreement. 18.11.3 Action Taken. Following its approval by the City, this Agreement shall be administered by the Deputy City Manager — Real Property or any designee. Except where the terms of this Agreement expressly require the approval of a matter or the taking of any action by the City Council, any matter to be approved by the City shall be deemed approved, and any action to be taken by the City shall be deemed taken, upon the written approval by the City Manager (or designee). The City Manager or designee shall have the authority to issue interpretations with respect to this Agreement and to determine whether any action requires the approval of the City Council. All amendments or modifications of this Agreement shall require the approval of the City Council. All waivers and extensions of time for performance under this Agreement shall be approved by the City Manager (or designee) unless in the City Attorney's opinion such action requires a waiver to be approved by the City Council under applicable law. 18.12 Real Estate Commissions. 18.12.1 Developer Representation and Indemnity. The City shall not be liable for any real estate commissions, brokerage fees or finder's fees which may arise from this Agreement or the Lot 13 Transfer. The City has retained CBRE pursuant to a separate agreement which provides that Developer will be responsible for payment of a brokerage commission to CBRE thereunder in connection with the conveyance of the Property by the City to Developer in an amount equal to one percent (1 %) of the Purchase Price ("Developer Commission Payment"). For avoidance of doubt, the Developer Commission Payment is not based upon nor does it include any commission payment with respect to all or any portion of the Project Fair Share Contribution. Developer agrees to indemnify and hold the City and the City Parties harmless from any and all Claims arising from or in any way related to any claim by CBRE for the Developer Commission Payment or by any other broker, agent, or finder retained by Developer or any Affordable Housing Developer regarding this Agreement or the sale, lease or development of the Development Parcels or any portion thereof. The City represents that it has not engaged any broker, agent, or finder in connection with this Agreement other than CBRE. Developer represents that it has engaged no broker, agent or finder in connection with this Agreement or the transactions identified in this Agreement or the Other Agreements. Developer, on behalf of itself, and its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner (but only with respect to such Person's acquisition or disposition of the Parcel owned by such Person or a leasehold interest in such Parcel) but excluding End Users hereby agrees to indemnify and hold the City and the City Parties harmless from any and all Claims arising from or in any way related to any claim by CBRE for the Developer Commission Payment or by Tustin TIC DDA 03.11.25 (14M)(3) FINAL 146 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 any other broker, agent, or finder retained by Developer regarding this Agreement or the Other Agreements or for the sale or lease of the Real Property or any portion thereof or development of the Market Rate Project, the Affordable Project, as applicable, or the transactions identified in this Agreement or the Other Agreements. The provisions of this Section 18.12.1 shall survive the termination of this Agreement. 18.12.2 City Representation. The City represents that except as disclosed in Section 18.12.1, it has engaged no broker, agent, or finder in connection with this Agreement or the transactions identified in this Agreement or the Other Agreements. 18.12.3 Survival. The indemnity set forth in Section 18.12.1 shall survive the termination of this Agreement. 18.13 Date and Delivery of Agreement; Term of Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Parties intend that this Agreement shall be deemed effective, executed and delivered for all purposes under this Agreement and for the calculation of any statutory time periods based on the date an agreement between the Parties is effective, executed and/or delivered, as of the Effective Date. Subject to the foregoing and the provisions of Article 9, the term of this Agreement ("Term") shall commence as of the Effective Date and shall terminate as of the date of City's issuance of a Final Certificate of Compliance for the Project, unless earlier terminated as provided in this Agreement. 18.14 Constructive Notice and Acceptance. Every Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner, including Affordable Housing Developer and each Successor Ground Lessee, is and shall be conclusively deemed to have consented and agreed to every provision contained in this Agreement, whether or not any reference to this Agreement is contained in the instrument by which such Person acquired an interest in the Market Rate Project, the Affordable Project or Property. 18.15 Survival of Covenants, Representation and Warranties. 18.15.1 Runs with the Land. The covenants, representations, warranties, and indemnities specified in this Agreement shall survive any investigation made by any Party hereto and the closing of the transactions contemplated hereby until the termination of this Agreement and for such additional period as is set forth herein. This Agreement and the covenants, representations, warranties, releases and indemnities specified herein shall run with the Real Property and any interest therein (including any leasehold created under a Ground Lease), and except as provided herein, be binding upon Developer, each Successor Owner, Affordable Housing Developer and each Successor Ground Lessee, unless and until terminated in accordance with the terms of this Agreement, any Recorded Certificate of Compliance or the Other Agreements. Notwithstanding anything contained in this Agreement to the contrary, except for the express provisions contained in the Affordable Housing Declaration, the Quitclaim Deed, the Memorandum of DDA, the Special Restrictions, the Public Access Covenant and the Landscape Tustin TIC DDA 03.11.25 (14M)(3) FINAL 147 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 Installation and Maintenance Agreement and other matters Recorded against the Property or any portion thereof, the obligations, covenants, conditions and restrictions set forth herein shall not run with that portion of the Real Property Transferred to an End User, and each End User shall take title to that portion of the Real Property conveyed to it free and clear of the lien or charge of this Agreement or any of the obligations, covenants, conditions and restrictions set forth herein. 18.15.2 Rights of the City to Enforce. The City is the beneficiary of the terms and provisions of this Agreement and of the covenants running with the Property and any interest therein (including any leasehold created under an Approved Ground Lease), for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided, without regard to whether the City has been, remains or is an owner of any land or interest in the Property, the Development Parcels, the Market Rate Project and/or the Affordable Project. The City shall have the right, if this Agreement or any covenants herein are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and any covenants may be entitled. 18.16 Construction and Interpretation of Agreement. 18.16.1 Construction. The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. The Parties hereto acknowledge and agree that this Agreement has been prepared jointly by the Parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each Parry has been given the opportunity to independently review this Agreement with legal counsel, and that each Party has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the Party preparing it. The provisions of California Civil Code Section 1654 are specifically waived by each Party hereto. 18.16.2 Effect of Invalidity or Unenforceability. If any term or provision of this Agreement, the deletion of which would not modify or affect the Backbone Infrastructure Program, the annexation of the Real Property to City of 18-01 CFD Zone 3, the de -annexation of the Real Property from City of Tustin Community Facilities District No. 13-01, and/or the amount payable under this Agreement as Purchase Price or as Project Fair Share Contribution shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each other term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the Parties hereto that in lieu of each clause or provision of this Agreement that is illegal, invalid, or Tustin TIC DDA 03.11.25 (14M)(3) FINAL 148 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 unenforceable, there be added as a part of this Agreement an enforceable clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible. 18.16.3 Captions. The captions of the articles, sections and clauses in this Agreement are inserted solely for convenience and under no circumstances are they or any of them to be treated or construed as part of this instrument. 18.16.4 Gender, Singular and Plural. As used in this Agreement and as the context may require, the singular includes the plural and vice versa and the masculine gender includes the feminine and vice versa. 18.16.5 No Merger. Any provision of this Agreement stated to survive the Close of Escrow (or with respect to the Returned Property, the close of escrow) shall be interpreted to mean that such provision shall not merge with any deed conveying the Property or any portion thereof, including the Quitclaim Deed. 18.17 Time of Essence. Time is of the essence with respect to all provisions of this Agreement in which a definite time for performance is specified; provided that the foregoing shall not be construed to limit or deprive a Party of the benefits of any cure period or Force Majeure Delay expressly provided for in this Agreement. 18.18 Fees and Other Expenses. Except as otherwise provided in this Agreement, each of the Parties hereto shall pay its own fees and expenses, including attorneys' fees, experts' fees and consultants' fees and costs, in connection with negotiation and preparation of this Agreement and compliance with its terms. 18.19 No Partnership. Nothing contained in this Agreement shall be deemed or construed to create a partnership, joint venture or any other relationship between the Parties hereto other than purchaser/developer and seller/municipality according to the provisions contained in this Agreement or cause the City to be responsible in any way for the debts or obligations of Developer. 18.20 Binding Effect. This Agreement and terms, provisions, promises, covenants, conditions and restrictions contained herein shall be binding upon and shall inure to the benefit of the Parties hereto and their Tustin TIC DDA 03.11.25 (14M)(3) FINAL 149 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 respective heirs, legal representatives, successors and assigns in accordance with and subject to the provisions of this Agreement. 18.21 No Third -Party Beneficiaries. This Agreement has been made and entered into solely for the benefit of the Parties to this Agreement and their respective successors and permitted assigns. Nothing in this Agreement confers any rights or remedies on any other Person. Nothing in this Agreement relieves or discharges the obligation or liability of any third Persons to any Parties to this Agreement. 18.22 Counterparts. This Agreement may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. This Agreement shall not be effective until the execution and delivery by the Parties of at least one set of counterparts. The Parties agree to recognize execution of this Agreement by email or other electronically transmitted signatures; provided that such execution by email or other electronic transmission shall not be effective unless a manually executed copy of the signature page is promptly sent by U.S. Postal Service, postage prepaid or overnight delivery service or is hand delivered to the Parties or Escrow Holder, as applicable, pursuant to Section 4.4. The Parties hereby authorize each other (and Escrow Holder) to detach and combine original signature pages and consolidate them into a single identical original. Any one of such completely executed counterparts shall be sufficient proof of this Agreement. 18.23 Duplicate Originals, Entire Agreement and Waivers. 18.23.1 Duplicate Originals. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 18.23.2 Entire Agreement. This Agreement, including the Attachments hereto, together with the Other Agreements, constitute the entire agreement between the Parties with respect to the subject matter hereof. Except as set forth in the last sentence of this Section 18.23.2, this Agreement and the Other Agreements supersede and replace any and all prior agreements, proposed agreements, negotiations and communications, oral or written, relating to the subject matter hereof and contain the entire agreement between the Parties as to the subject matter hereof and any and all prior agreements, understandings or representations between the Parties and/or any Developer Affiliate are hereby terminated and canceled in their entirety. Each Party hereby acknowledges that no other Party hereto, nor its agents or attorneys, have made any promises, representations or warranties whatsoever, expressed or implied, not contained in this Agreement or the Other Agreements, to induce such Party to execute this Agreement, and each Party acknowledges that it has not executed this Agreement in reliance on any such promise, representation or warranty not contained in this Agreement or any Other Agreements. For the avoidance of doubt, this Agreement shall terminate and supersede the ENA, except that this Agreement does not supersede Sections 10.4, Section 10.6 or 10.12 (and the provisions referenced therein) of the ENA which shall remain in effect with respect to claims arising during or related to the term of the ENA and the provisions of 4.5.2, 4.5.3 and Exhibit B thereof (including Section Tustin TIC DDA 03.11.25 (14M)(3) FINAL 150 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 1.1.3 of Exhibit B) which shall remain in effect and shall not merge with any deed. 18.23.3 No Waiver. No waiver of any provision or consent to any action under this Agreement shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a Party to provide a waiver in the future except to the extent specifically set forth in writing. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities for the City and Developer and all amendments hereto must be in writing and signed by the appropriate authorities of the City and Developer. 18.24 Confidentiality. 18.24.1 Public Records Act; Confidentiality Exceptions. Subject to the provisions of the Public Records Act, which governs the City's use and disclosure of its agreements and records, the City and Developer hereby agree that each shall keep confidential information provided by the other and denominated as confidential and will not disclose any such information to any Person without obtaining the prior written consent of the other Party, except that (i) the City shall have the right to disclose any information contained in any third party reports produced or obtained by Developer and required to be disclosed by it pursuant to law, (ii) Developer shall have the right to disclose any Developer Excluded Information, (iii) the City shall have the right to disclose any City Excluded Information, (iv) Developer shall have the right to disclose to its consultants, members, and their respective consultants and members, any information to the extent necessary or desirable in connection with Developer's due diligence on the Development Parcels and performance of its obligations under this Agreement and the Other Agreements, (v) City shall have the right to disclose to its officials, employees and the City retained consultants, attorneys and representatives all information received by it from Developer as required to perform its obligations under this Agreement and the Other Agreements and (vi) either Party shall have the right to disclose any information to the extent that it is legally required or compelled to do so provided that (to the extent permitted) it provides the other Party with prior notice of such disclosure obligation and cooperates with such other Party (at no cost or liability to the cooperating Parry) in any attempts to obtain confidential treatment of such disclosed information. The Parties' obligations pursuant to this Section 18.24 shall terminate upon the earlier of the termination of this Agreement or the Recording of the Final Certificate of Compliance. 18.24.2 Financial Information. Developer shall identify with specificity any submitted financial documents (including equity financing documents and Guarantor information) which Developer wants the City to maintain as confidential documents and a statement as to why the request is consistent and complies with specific provisions of the Public Records Act. The City's staff, agents, negotiators and consultants may review the statements as necessary as long as such parties agree to maintain the confidentiality of such statements. Developer acknowledges that documents or other "records" (as that term is defined in the Public Records Act) related to the Project may be required to be made public upon request. Govt. Code Section 7922.525 provides that "[p]ublic records are open to inspection at all times during the office hours" of the City. If Developer believes that any documents or other records provided to the City are exempt from the Public Records Act, Developer shall state in writing at the time of submittal of the documents or Tustin TIC DDA 03.11.25 (14M)(3) FINAL 151 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 records the legal basis for Developer's belief that such documents or other records are exempt from the Public Records Act, Developer and City shall meet and confer about exemption of such documents or other records, and City shall evaluate the asserted basis for the exemption(s) in good faith. If City determines that the requested documents or other records qualify for an exemption, the City shall conspicuously mark the documents and other records "Confidential" and the City will not make the records public except as otherwise required by law or by court order. The City's failure to correctly determine the applicability or inapplicability of an exemption to the Public Records Act shall not constitute a breach of this Agreement. In addition, during the period in which The Irvine Company or TICAD is Guarantor, with respect to any financial information specifically required to be made available for review by representatives of the City under the terms of the Guarantor Original Certificate, any Guarantor Date Down Certificate, or any "Quarterly Certificate" required to be delivered under the terms of the Guaranty (collectively, "Guaranty Certificates") or under the terms of the Guaranty, Developer shall make such financial information available to City's representatives in Developer's offices in Orange County, California, on one or more occasions as City's representatives may request, during normal business hours, and the City shall have the right to review such financial information in Developer's offices, but the City representatives shall not be entitled to make copies of such financial information or remove it from Developer's offices. For the purposes of the immediately preceding sentence, the term "financial information" includes documentation specifically required to be made available to the City under the terms of the Guaranty or Guaranty Certificates but does not include the Guaranty Certificates or any information disclosed by the text of the Guaranty or any of the Guaranty Certificates. 18.24.3 Cooperation. In the event that the City obtains a request pursuant to the provisions of the Public Records Act to disclose any of Developer's information which the City is required to keep confidential pursuant to the terms of this Agreement, the City shall provide Developer with prompt written notice thereof and the City and Developer shall cooperate at Developer's sole cost and expense to seek to avoid disclosure of such matters to the extent legally permissible pursuant to the provisions of the Public Records Act. Developer agrees to defend, indemnify and hold harmless the City and the City Parties from any claims for damages, costs, court costs, awards of attorney fees, or related claims in all lawsuits and writ proceedings seeking to make records public that Developer has marked "Confidential" hereunder and requests the City to protect as confidential. The City shall promptly notify Developer of any claim made against City of an alleged breach of the Public Records Act resulting from document(s) that Developer elected to mark as "Confidential" so that Developer may evaluate such claim and its determination of the confidentiality of such document(s). In no event shall the City be required to maintain as confidential any materials required by law to be disclosed by Developer, or otherwise disclosed by Developer as part of its public filings. 18.25 Proprietary and Governmental Roles; Actions by Parties. Except where expressly provided otherwise in this Agreement, the capacity of the City in this Agreement shall be as owner, lessor, assembler, redeveloper and/or seller of property only ("Proprietary Capacity"), and any obligations or restrictions imposed by this Agreement on the City, shall be limited to that capacity and shall not relate to, constitute a waiver of, supersede or Tustin TIC DDA 03.11.25 (14M)(3) FINAL 152 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 otherwise limit or affect the exercise by the City of its governmental authority with respect to any matter related to this Agreement which shall include the regulation and entitlement of the Development Parcels pursuant to the Entitlements, Development Permits and/or Governmental Requirements, including enacting laws, inspecting structures, reviewing and issuing permits, and all of the other legislative and administrative or enforcement functions of each pursuant to federal, State or local law ("Governmental Capacity"). In addition, nothing in this Agreement shall supersede or waive any discretionary or regulatory approvals required to be obtained from the City in its Governmental Capacity under applicable Governmental Requirements. 18.26 Performance of Acts on Business Days. In the event that the final date for payment of any amount or performance of any act under this Agreement falls on a day other than a Business Day, such payment may be made or act performed on the next succeeding Business Day. [Signature page follows] Tustin TIC DDA 03.11.25 (14M)(3) FINAL 153 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the City and Developer have signed this Agreement as of the date first set forth above. CITY OF TUSTIN: Dated: By: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City By: Amy E. Freilich Aldo E. Schindler City Manager DEVELOPER: TUSTIN LEGACY ACQUISITION LLC, a Del awar 1' ited liability com any By. - Name: Kevin Roberts Title: Senior Vice President By: 2 ffzn� Name: Todd Keller Title: Division President Tustin TIC DDA 03.11.25 (HM)(3) FINAL S-1 City of Tustin/Irvine Company Por. Disp. Areas 211, 2C and 8 JOINDER OF ESCROW HOLDER The undersigned is joining this Agreement to evidence its agreement to receive, hold and disburse the Original Purchase Price Deposit in accordance with the terms of this Agreement and otherwise to comply with the escrow instructions set forth in this Agreement. FIRST AMERICAN TITLE INSURANCE COMPANY By:_ Name: Title: Tustin TIC DDA 03.11.25 (14M)(3) FINAL S-2 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 LIST OF ATTACHMENTS ATTACHMENT 1 GLOSSARY OF DEFINED TERMS ATTACHMENT 2A LEGAL DESCRIPTION OF DEVELOPMENT PARCELS ATTACHMENT 2B DEPICTION OF DEVELOPMENT PARCELS ATTACHMENT 3 SITE PLAN ATTACHMENT 4 PRELIMINARY REPORT ATTACHMENT 5A FORM OF CITY ESTOPPEL FOR TRANSFERS, TRANSFERS OF CONTROL OTHER THAN LOT 13 TRANSFERS ATTACHMENT 5B FORM OF CITY ESTOPPEL FOR LOT 13 TRANSFER ATTACHMENT 6 PHASING PLAN ATTACHMENT 7 SCHEDULE OF PERFORMANCE ATTACHMENT 8 SCOPE OF DEVELOPMENT ATTACHMENT 9 ALTERNATIVE AFFORDABLE PROJECT DEVELOPMENT PLAN CERTIFICATE ATTACHMENT 10 LIST OF ENVIRONMENTAL REPORTS AND STATEMENTS ATTACHMENT 11 FORM OF QUITCLAIM DEED ATTACHMENT 12 FORM OF MEMORANDUM OF DDA ATTACHMENT 13A PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS ATTACHMENT 13B COMMON AREA PLAN ATTACHMENT 13C FORM OF PUBLIC ACCESS COVENANT ATTACHMENT 14A FORM OF GUARANTY ATTACHMENT 14B FORM OF GUARANTOR ORIGINAL CERTIFICATE ATTACHMENT 14C FORM OF GUARANTOR DATE DOWN CERTIFICATE ATTACHMENT 14D FORM OF GUARANTY LEGAL OPINION ATTACHMENT 14E FORM OF REAFFIRMATION OF GUARANTY ATTACHMENT 14F FORM OF AFFORDABLE PROJECT REAFFIRMATION OF GUARANTY ATTACHMENT 14G FORM OF REAFFIRMATION OF LEGAL OPINION ATTACHMENT 15A FORM OF EQUITY INVESTOR ORIGINAL CERTIFICATE ATTACHMENT 15B FORM OF DATE DOWN OF EQUITY INVESTOR CERTIFICATE ATTACHMENT 15C FORM OF EQUITY COMMITMENT AGREEMENT ATTACHMENT 16A FORM OF MARKET RATE PROJECT CERTIFICATE OF COMPLIANCE ATTACHMENT 16B FORM OF AFFORDABLE PROJECT CERTIFICATE OF COMPLIANCE ATTACHMENT 17A FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT ATTACHMENT 17B FORM OF TRANSFEREE CERTIFICATE ATTACHMENT 18 FORM OF CITY REAFFIRMATION CERTIFICATE ATTACHMENT 19A FORM OF DEVELOPER ORIGINAL CERTIFICATE ATTACHMENT 19B FORM OF DEVELOPER DATE DOWN AND REAFFIRMATION CERTIFICATE ATTACHMENT 20 FORM OF DECLARATION OF SPECIAL RESTRICTIONS ATTACHMENT 21 FORM OF LANDSCAPE INSTALLATION AND MAINTENANCE AGREEMENT ATTACHMENT 22 FORM OF BILL OF SALE Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT LIST City of Tustin/Irvine Company 1 Por. Disp. Areas 213, 2C and 8 LIST OF ATTACHMENTS CONTINUED ATTACHMENT 23 MAXIMUM TAX BURDEN SCHEDULE FOR CFD 18-01 ZONE 3 ATTACHMENT 24A FORM OF SUBORDINATION AGREEMENT (PERMITTED LEASEHOLD MORTGAGE) ATTACHMENT 24B FORM OF SUBORDINATION AGREEMENT (AFFILIATE LEASEHOLD MORTGAGE) ATTACHMENT 25 FORM OF AFFORDABLE HOUSING DECLARATION ATTACHMENT 26 SPECIMEN POLICY Tustin TIC DDA 03.11.25 (14M)(3) ATTACHMENT LIST City of Tustin/Irvine Company FINAL 2 Por. Disp. Areas 213, 2C and 8 ATTACHMENT 1 GLOSSARY OF DEFINED TERMS For purposes of this Agreement, the following capitalized terms shall have the following meanings: "Accrue", "Accrued" or "Accruing" shall mean, with respect to any Claim, the date and time at which such Claim arises as a matter of law and could then or thereafter be asserted by any Person. to act. "Action" shall have the meaning set forth in Section 18.2. "Active Negligence" shall mean an affirmative act performed negligently and not a failure "Additional ALTA Coverage" shall have the meaning set forth in Section 6.4. "Additional Purchase Price Deposit" shall have the meaning set forth in Section 4.3.1. "Affiliate Leasehold Mortgage" shall have the meaning set forth in Section 17.1.1. "Affiliate Leasehold Mortgagee" shall mean, for the purposes of any Affiliate Leasehold Mortgage, a Person Controlling, Controlled by, or under common Control with Developer or Affordable Housing Developer and having the capacity of Mortgagee under the Affiliate Leasehold Mortgage. "Affordable Housing Declaration" shall have the meaning set forth in Section 1.6.1. "Affordable Housing Developer" shall have the meaning set forth in Section 1.4.3. "Affordable Project" shall have the meaning set forth in Section 1.3.3. "Affordable Project Certificate of Compliance" shall have the meaning set forth in Section 9.4_ "Affordable Project Closing" shall mean the close of escrow at which Developer, as ground lessor, enters into an Approved Ground Lease with the Affordable Housing Developer, as Ground Lessee, for the Lot 13 Property or any Parcel thereof created by the Developer Final Tract Map. "Affordable Project Default" shall have the meaning set forth in Section 13.5. "Affordable Project Default Commencement Date" shall have the meaning set forth in Section 13.5_ Tustin TIC DDA 03.11.25 (HM)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 1 Por. Disp. Areas 2B, 2C and 8 "Affordable Project Enforcement Obligations" shall mean the obligations of Developer, prior to receipt of a Certificate of Compliance with respect to an applicable portion of the Affordable Project, upon the occurrence and continuance of an Affordable Project Default under this Agreement, the Lot 13 PDA, the Affordable Housing Declaration and any of the Other Agreements to: (i) enforce the obligations of Affordable Housing Developer to perform any of the Affordable Project Provisions under the Lot 13 PDA and, following any Lot 13 Transfer, under the Approved Ground Lease and the Other Agreements, until performance is obtained, including by causing the Lot 13 Transfer to occur on or before the Affordable Project Outside Date and thereafter by causing the commencement and Completion of the Affordable Project in accordance with and within the time period set forth in the Schedule of Performance, or (ii) if performance cannot be obtained within the foregoing time periods or such other time periods as are set forth in the Lot 13 PDA or the Approved Ground Lease, to perform one or more of the following actions: (A) cause the Affordable Project Closing to occur with an Approved Alternate Affordable Housing Developer or another Affordable Housing Developer approved by the City pursuant to this Agreement on or before the Affordable Project Outside Date, (B) cure the Affordable Project Default or exercise the self-help rights of Developer, if any, under the Lot 13 PDA and/or the Approved Ground Lease to perform the obligations of Affordable Housing Developer including in either case by replacing USA Properties' interest in the Affordable Housing Developer with an Approved Alternative Affordable Housing Developer or such other alternative Affordable Housing Developer satisfactory to City in its sole discretion or the payment of such amounts by Developer as may be necessary for Developer or the Affordable Housing Developer to perform the Affordable Project Obligations including, if necessary, by lending or contributing such sums to the Affordable Housing Developer as may be necessary for the Affordable Housing Developer to perform the Affordable Project Provisions; (C) cause the defaulting Affordable Housing Developer to assign its interests in the Lot 13 PDA and/or Approved Ground Lease to an Approved Alternate Affordable Housing Developer or another Affordable Housing Developer approved by the City pursuant to this Agreement; (D) terminate the Lot 13 PDA and any Ground Lease Option and Approved Ground Lease then in effect (subject to the terms and conditions of the said documents) and Transfer the Lot 13 Property (pursuant to a new Lot 13 Transfer) to an Approved Alternate Affordable Housing Developer or other Affordable Housing Developer approved by the City pursuant to this Agreement; and/or (E) perform, at Developer's expense, the obligations of Affordable Housing Developer under this Agreement and the Other Agreements, including if necessary to allow such performance, by terminating the Lot 13 PDA and any Ground Lease Option and Approved Ground Lease then in effect to allow the Developer to directly perform the obligations of Affordable Housing Developer; and in either of the cases described in clauses (i) and (ii) of this definition, such that the Affordable Project Improvements shall be constructed and other Affordable Project Provisions performed as and when required by this Agreement provided the same is performed in accordance with the notice requirements set forth in Section 13.2.1. "Affordable Project Financing Plan" shall have the meaning set forth in Section 4.6.1.1. Tustin TIC DDA 03.11.25 (HM)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 2 Por. Disp. Areas 213, 2C and 8 "Affordable Project Horizontal Improvements" shall mean the Horizontal Improvements required in connection with development and construction of the Affordable Project and shall include in -tract infrastructure improvements and connections to public on -site and off - site infrastructure. "Affordable Project Improvements" shall have the meaning set forth in Section 1.3.3. "Affordable Project Obligations" shall mean the Affordable Project Provisions and the additional obligations of Developer, prior to the receipt of a Certificate of Compliance with respect to the applicable Parcel within the Affordable Project, applicable to or affecting Lot 13, the Affordable Project, the Lot 13 Property and/or the Affordable Project Improvements then constructed or to be constructed on the Lot 13 Real Property pursuant to this Agreement and the Other Agreements including the obligation to cause the Lot 13 Transfer to occur or to undertake the Affordable Project Provisions directly as specified in Section 4.7.1, to cause the Guaranty to be provided and to undertake the Affordable Project Enforcement Obligations. "Affordable Project Outside Date" shall have the meaning set forth in Section 4.7.1. "Affordable Project Provisions" shall mean those provisions of this Agreement during its term and the Other Agreements (including the provisions incorporated from the DDA into the Special Restrictions) applicable to Lot 13, the Affordable Project, the Lot 13 Property and/or the Affordable Project Improvements then constructed or to be constructed on the Lot 13 Real Property that are delegated by Developer to Affordable Housing Developer pursuant to the Lot 13 PDA and/or the Approved Ground Lease, and shall include, unless otherwise set forth in the Lot 13 PDA or the Approved Ground Lease, all aspects of design, development, financing, construction and operation of the Affordable Project on the Lot 13 Real Property in accordance with this Agreement and the Other Agreements, and, to the extent made or deemed to be made by Affordable Housing Developer, Ground Lessee or any Successor Ground Lessee, and related to the Affordable Project and/or the Affordable Project Improvements, all indemnities, waivers and releases under this Agreement and the Other Agreements. "Affordable Project Reaffirmation of Guaranty" shall mean a reaffirmation of the Guaranty executed by Guarantor at each Lot 13 Transfer which shall be in substantially the form and substance of the Affordable Project Reaffirmation of Guaranty attached as Attachment 14F. "Affordable Project Vertical Improvements" shall mean the Vertical Improvements required in connection with development, construction and operation of the Lot 13 Real Property with the Affordable Project, comprised of the following: (i) a maximum of 178 Lower Income Units (the final number of such Lower Income Units to be determined by the Approved Plans), but in no event less than twenty five percent (25%) of the total units within Phase 1, and between one (1) and three (3) manager/staff units (provided that the total number of manager/staff units on Lot 13 shall not exceed four (4) units) to be constructed in Building 5 on a legal lot to be created by the Developer Final Tract Map comprising a portion of Lot 13 as contemplated by the Scope of Development and as further depicted on the Site Plan; Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 3 Por. Disp. Areas 213, 2C and 8 (ii) a maximum of 156 Lower Income Units (the final number of such Lower Income Units to be determined by the Approved Plans), but in no event shall the total amount of Lower Income Units constructed in both Phase 1 and Phase 2 be less than twenty five percent (25%) of the total Residential Units constructed on the Real Property, and between one (1) and three (3) manager/staff units (provided that the total number of manager/staff units on Lot 13 shall not exceed four (4) units) to be constructed in Building 6 on a legal lot created by the Developer Final Tract Map comprising a portion of Lot 13 as contemplated by the Scope of Development and as further depicted on the Site Plan; provided, however, such Lower Income Units shall include a number of Very Low Income Units equal to 10% of the number of "base density" Residential Units to be constructed in the Project as that term is defined and used in California Government Code Section 65915. "Agreement" shall mean this Tustin Legacy Disposition and Development Agreement including all Attachments attached hereto. "ALTA Policy" shall mean an ALTA extended coverage owner's policy of insurance as such term is used in Section 6.2. "Alternative Affordable Project Development Plan" shall have the meaning set forth in Section 1.4.3. "Alternative Affordable Project Development Plan Certificate" shall have the meaning set forth in Section 4.8.3. "Alternative Affordable Project Development Plan Conditions Precedent" shall have the meaning set forth in Section 4.8. "Approved Alternate Affordable Housing Developer" shall have the meaning set forth in Section 13.3.3. "Approved Equity Investor" shall have the meaning set forth in Section 4.6.2.3. "Approved Ground Lease" shall have the meaning set forth in Section 13.1.1. "Approved Ground Lease Form" shall have the meaning set forth in Section 1.4.3. "Approved Plans" shall mean, collectively: (i) the Entitlements which govern development of improvements on the Real Property and Development Permits, including encroachment permits, necessary for development of the Market Rate Project and the Affordable Project, including approval of plans by the City pursuant to the Design Review process; (ii) the Basic Concept Plan and any modification thereto approved by the City pursuant to Section 8.5; and (iii) construction level drawings approved by the City or responsible agency as required to obtain the Development Permits. "Area Median Income" shall mean the area median income, as adjusted for household size, for Orange County, established periodically by HUD and published in the Federal Register. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 4 Por. Disp. Areas 213, 2C and 8 In the event HUD ceases to publish an established Area Median Income as aforesaid, AMI shall mean the then current area median income as determined by HCD. If such income standards are no longer in existence, the City will designate another reasonably comparable method of computing Area Median Income. "Assignment Agreement" shall have the meaning set forth in Section 2.2.4.1. "Attachment" shall mean all Attachments to this Agreement, including any and all exhibits and attachments thereto as required thereby. "Basic Concept Plan" shall mean the design, phasing, product mix and other related submittals by Developer to the City on or before the Effective Date for purposes of obtaining Entitlements approvals and to satisfy the City's design approval rights as set forth in Section 8.5 and shall include the phasing and proposed product mix as set forth in the Phasing Plan, Site Plan and the Scope of Development. "Best's" shall have the meaning set forth in Section 11.1.1. "Bill of Sale" shall have the meaning set forth in Section 7.2.1.1(x). "Bond Issuer" shall have the meaning set forth in Section 4.7.4. "Boundary Landscape Area" shall mean that portion of the Real Property and of the City Property (as defined in the Landscape Installation and Maintenance Agreement), in each case generally between the back of curb on each public street adjoining the Real Property and the Buildings on the Real Property, as more particularly depicted on Exhibit C thereto. "Budget Statement" shall mean a document delivered by Developer to the City in the format approved by the City for the Financial Plan, and which shows, as of the end of the immediately preceding quarter, (i) the fees paid through the end of such prior quarter and estimated fees to be paid prior to Completion of the Market Rate Project or the Affordable Project, as applicable, in connection with the development and construction of the Market Rate Project or the Affordable Project, as applicable and (ii) out-of-pocket costs spent through the end of such prior quarter and estimated out-of-pocket costs to be paid prior to Completion of the Market Rate Project and the Affordable Project, as applicable, in each case for each of the major categories of hard and soft costs for the development and construction of the Market Rate Project or the Affordable Project, as applicable. "Building" or "Buildings" shall mean each building and structure on the Real Property, including each building containing Residential Units. "Business Day(s)" shall mean any day other than Saturday, Sunday and each City observed legal holiday. "CDLAC" shall have the meaning set forth in Section 4.7.4. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 5 Por. Disp. Areas 213, 2C and 8 "CEQA" shall mean the California Environmental Quality Act and implementing regulations and guidelines, contained in Cal. Public Resources Code Section 21000 et seq., and Cal. Code of Regulations, title 14, Section 15000 et seq., respectively. "Certificate of Compliance" shall mean a certificate executed and Recorded by the City upon Completion by Developer of the Market Rate Project Improvements and/or Affordable Project Improvements, as applicable, and satisfaction of all additional Conditions Precedent thereto with respect to such Parcel as described in Article 9. "Certified Financial Statements" shall mean financial statements of a Person specified in this Agreement and certified to the City by the chief financial officer of such Person as having been prepared in accordance with GAAP and accurate in all material respects. "CFD 18-01 Zone 3" shall have the meaning set forth in Section 7.1.2.1. "CFD 18-01 Zone 3 Special Tax" shall mean a special tax levied by the City for CFD 18- 01 Zone 3 of the District, the proceeds of which shall be used by the City to fund a portion of City essential services, including but not limited to police protection services, fire protection services, ambulance and paramedic services, recreation program services, street sweeping, traffic signal maintenance and the maintenance of City -owned parks, parkways and open spaces, lighting, flood control and storm drain services and other City services and facilities at Tustin Legacy. "City" shall mean the City of Tustin and each assignee or successor to the City's rights, powers and responsibilities as described in Section 1.4.1; provided that when in this Agreement the term "City and its Governmental Successors" is used, the term "City" shall be deemed to mean solely the City of Tustin. "City Attorney" shall mean the individual appointed by the City Council as "City Attorney." "City Closing Conditions" shall have the meaning set forth in Section 7.2.2. "City/COC Deposit" shall have the meaning given such term in the TUSD Agreement. "City Code" shall mean the Tustin City Code for the City of Tustin, California, as the same may be amended from time to time. "City Costs Deposit" shall have the meaning set forth in Section 1.8.2. "City Council" shall mean the City Council of the City of Tustin which serves as the City's legislative body. "City Cure Period" shall have the meaning set forth in Section 15.3.1. "City Estoppel" shall have the meaning set forth in Section 2.2.9. "City Excluded Information" shall mean information that is (i) known by the City prior to the disclosure thereof by Developer or its officers, employees, agents, attorneys, affiliates, Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 6 Por. Disp. Areas 213, 2C and 8 representatives, contractors, successors or assigns; (ii) developed by or on behalf of the City without the use of any confidential information provided by Developer or its officers, employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns; (iii) disclosed to the City by a third party other than Developer or any of its officers, employees, agents, attorneys, affiliates, representatives or contractors; or (iv) known to the public through no act or fault of the City in violation of this Agreement. "City Final Map" shall have the meaning set forth in Section 1.2.1. "City Hall" shall mean the seat of government for the City of Tustin, presently located at 300 Centennial Way, Tustin, California. "City Indemnified Parties" shall mean the City and its appointed and elected officials, agents, attorneys, affiliates, employees, contractors, consultants and representatives. "City Inspections" shall have the meaning set forth in Section 16.5. "City Lien" shall have the meaning set forth in Section 16.2. "City Manager" shall mean Mr. Aldo E. Schindler or his successor in such capacity, or other designee as identified in writing by the City Manager. "City Premium" shall mean the premium attributed to the so-called standard coverage or CLTA coverage portion of the ALTA Policy in the face amount of the Purchase Price. "City Released Parties" shall mean the City, the Successor Agency to the Tustin Community Redevelopment Agency, the Tustin Housing Authority, the Tustin Finance Authority, and their respective elected and appointed officials, employees, agents, representatives, attorneys, affiliates, consultants, contractors, successors and assigns. "City Representatives" shall have the meaning set forth in Section 3.3.7. "City's Knowledge" shall have the meaning set forth in Section 3.3.7. "City Title Policy" shall have the meaning set forth in Section 7.4.6(iii). "Claim" or "Claims" shall mean any and all claims, actions, causes of action, demands, orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including attorneys' fees, fees of expert witnesses, consultants' fees and court and litigation costs), costs and expenses attributable to compliance with judicial and regulatory orders and requirements, fines, penalties, liens, taxes, monetary payment or reimbursements or any type of compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen. "Close of Escrow" or "Closing" shall mean the close of escrow for the Property and the transfer of fee title to the Property by the City to Developer pursuant to the Quitclaim Deed, and execution and Recording of the Other Agreements and additional documents associated therewith, as more fully set forth in Article 7, which shall take place on the Closing Date. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 7 Por. Disp. Areas 213, 2C and 8 "Closing Conditions" shall mean the Developer Closing Conditions and the City Closing Conditions. "Closing Date" shall have the meaning set forth in Section 7.1.1. "Closing Payment" shall have the meaning set forth in Section 4.3.3. "Common Area" shall mean the privately owned open space and other privately owned portions of the Real Property proposed to be maintained by Developer for the benefit of all residents, upon which land the Common Area Improvements are proposed to be located, which areas are generally depicted on the Common Area Plan attached as Attachment 13B and which shall, for avoidance of doubt, include the Publicly Accessible Common Area. "Common Area Improvements" shall mean with respect to the Market Rate Project and the Affordable Project, the applicable privately owned Market Rate Project Improvements and Affordable Project Improvements on the Common Area and shall include the Publicly Accessible Common Area Improvements, Private Drives and Sidewalks, Buildings, structures and improvements, including parking lots, swimming pools and related restrooms, Landscape Improvements and other landscaping, parks and open space amenities, roadways, drives, bike paths, alleyways, sidewalks, paseos, utilities, courtyards, hardscaping, fountains and other infrastructure and key interior amenities of the Market Rate Project and/or the Affordable Project to be available for and used in common by the residents of the Market Rate Project and/or the Affordable Project, as applicable, on the Real Property as approved in the Approved Plans. There shall be Common Area Improvements constructed as part of each of the separate Market Rate Project and Affordable Project. "Complete", "Completed" and "Completion" shall mean: with respect to the Market Rate Project and/or the Affordable Project, as applicable, the point in time when all of the following shall have occurred with respect to the Market Rate Project and/or the Affordable Project, as applicable: (i) the Market Rate Project Improvements and/or the Affordable Project Improvements, as applicable, have been completed in accordance with this Agreement in a good and workmanlike manner and substantially in accordance with the Approved Plans and specifications for each; (ii) the issuance of a final certificate of occupancy by the City for all Market Rate Project Improvements and/or Affordable Project Improvements, as applicable, or, to the extent a certificate of occupancy is not required by the City for particular Market Rate Project Improvements or Affordable Project Improvements, as applicable, the equivalent final inspection, signoff or other permit activity with respect to such improvements has been issued by the City and/or any other Governmental Authority with jurisdiction over such Improvement, (iii) Recording of a Notice of Completion pursuant to California Civil Code Section 8182 in each case by an "owner" as defined in Section 8182(e) with respect to both: (x) private improvements and (y) public improvements constructed by Developer, Affordable Housing Developer, any Successor Owner, any Successor Ground Lessee or any such Person's contractor, but not with respect to other public improvements; and (iv) all contractors, subcontractors, laborers, suppliers, architects, and engineers who performed work on the relevant Market Rate Project Improvements and/or Affordable Project Improvements, as applicable, either (x) shall paid in full and shall have executed final unconditional lien waivers or (y) any Construction Liens that have been Recorded or stop notices that have Recorded or delivered have been paid, settled or otherwise extinguished, discharged, Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 8 Por. Disp. Areas 213, 2C and 8 released, waived, bonded around or insured against, or (z) the statutory period for filing liens or stop notices with respect to such Market Rate Project Improvements and/or Affordable Project Improvements, as applicable, shall have expired without any liens or stope notices being filed. "Conditions Precedent" shall mean the conditions precedent to issuance of each Certificate of Compliance as set forth in Sections 9.3 and 9.4. "Construction Liens" shall have the meaning set forth in Section 8.11.6. "Construction Loan" shall mean a loan made by (i) a Permitted Leasehold Mortgagee to an Affordable Housing Developer and that will be secured by a Permitted Leasehold Mortgage or (ii) an Affiliate Leasehold Mortgagee and that will be secured by a Mortgage, and, in either case, the proceeds of which are required to be used by an Affordable Housing Developer only to entitle, develop, and construct all or a portion of the Affordable Project Improvements and pay other Development Costs for the Affordable Project or secure Affordable Housing Developer's obligations with respect to an interest rate hedge and/or to convert construction financing to permanent financing. "Contractual Mitigation Payments" shall have the meaning given such term in the TUSD Agreement. "Control" "Controlled" or "Controlling", as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current ability to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests, acting as the manager of a limited liability company, the administrative general partner of a partnership or otherwise. Notwithstanding the foregoing, the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute "Control" if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person. "Controlling Person" shall mean (i) any Person who Controls Developer during the Term and (ii) any Person who Controls a Controlling Person. Notwithstanding the foregoing, if a Person has the right to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of Developer, such Person shall not be deemed to be a Controlling Person unless such Person also possesses, directly or indirectly (including through one or more intermediaries), the power to direct or cause the direction of the management and policies of Developer. The Controlling Person of Initial Developer as of the Effective Date is Donald Bren. "Costs" shall have the meaning set forth in Section 18.2. "DDA Transaction Expenses" shall mean the City's predevelopment, negotiation and implementation costs incurred in connection with this Agreement, the Other Agreements, the Market Rate Project and the Affordable Project, and each and every component thereof, including (i) City's staff costs attributable to the Market Rate Project and the Affordable Project, (ii) fees, expenses and costs of third -party consultants, legal counsel (including, without, limitation, fees, Tustin TIC DDA 03.11.25 (HM)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 9 Por. Disp. Areas 213, 2C and 8 expenses and costs of the City Attorney and outside legal counsel), financial advisors, engineers, appraisers and environmental and other consultants incurred by the City, and (iii) any other expenditures incurred by the City in connection with the implementation of the Market Rate Project and the Affordable Project, the drafting, negotiation, execution, implementation and, if applicable, amendment or termination of this Agreement and the Other Agreements (including any requested modification to thereto or to the attachments thereto; the preparation of City Estoppels); the review and approval of requested Transfers, Transferees, Leasehold Mortgages and Leasehold Mortgagees and documentation submitted by Developer or any proposed Transferee or Leasehold Mortgagee in connection therewith), and other acts carried out in connection with the Market Rate Project and the Affordable Project, whether Accrued prior to or following the Effective Date and continuing for the period described in Section 1.8, provided that the same shall not include fees or deposits required of Developer for processing entitlement applications or complying with the provisions of CEQA or its State CEQA implementing regulations which shall be separately payable by Developer pursuant to the DA, or if the DA is not then in effect, pursuant to Section 8.4.7. "Decision" shall have the meaning set forth in Section 18.2. "Default" shall mean a Potential Default and/or Material Default, as the context requires. "Default Notice" shall have the meaning set forth in Section 14.1. "Default Rate" shall mean an interest rate of eight percent (8%) per annum, compounded annually, but in no event in excess of the maximum legal rate. "Defaulting Party" shall have the meaning set forth in Section 14.1. "Defended Party" shall have the meaning set forth in Section 10.8. "Defending Party" shall have the meaning set forth in Section 10.8. "Deposit Return Event" shall mean the occurrence of any one of the following: (i) a failure to close the Escrow on the Closing Date solely as a result of a Default by the City in the performance of its obligations under this Agreement prior to the Close of Escrow for which Developer is entitled to and does exercise its remedies set forth in Section 15.3; (ii) with respect to the Close of Escrow, a failure by the City to deliver closing documents and instruments required under Section 7.2.1.1 on or before the Outside Closing Date if all other Closing Conditions are either satisfied or are waived by the benefited Parry; (iii) a failure to close Escrow on or before the Outside Closing Date, as the same may be extended by the City in its sole discretion pursuant to Section 7.1.2, as a result of the failure of the conditions to Close of Escrow set forth in Sections 7.2.1.3 and 7.2.2.10 but only as related to formation of a new improvement area of the District and adoption of an RMA for CFD 18-01 Zone 3 Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 10 Por. Disp. Areas 213, 2C and 8 and de -annexation of the Real Property from City of Tustin Community Facilities District No. 13-01 (provided the same is not caused by a Default by Developer with respect to Section 8.7.3); (iv) a failure to close Escrow on or before the Outside Closing Date as a result of a failure of any one of the following Developer Closing Conditions: (1) Section 7.2.1.2; (2) Section 7.2.1.3, as a result of the existence of any agreement entered into by the City other than a Permitted Exception that would survive the Close of Escrow and of which Initial Developer or any subsequent Developer had no knowledge as of the Effective Date; (3) Section 7.2.1.6 as a result of a material condemnation; (4) Section 7.2.1.9 if the City is unable to make a representation or warranty set forth in Section 3.3 if the occurrence of a change in a representation and warranty is materially adverse to Developer or the Property; (v) termination of this Agreement pursuant to Sections 15.1.1.1 or 15.1.1.2 (termination due to entitlement challenge, initiative or referendum); or (vi) if within six (6) months following the Effective Date: (A) TUSD does not agree pursuant to Section 8.7.6, to the final form of a TUSD Assignment meeting the requirements set forth in Section 7.2.1.8, or (B) TUSD fails to execute its acknowledgement thereon and to submit its signed acknowledgement to Escrow and Developer terminates the Agreement based on the failure of TUSD to so agree or acknowledge. "Design Guidelines" shall mean the design guidelines for the City contained in the Neighborhood D South Design Guidelines, the City Code and the Specific Plan. "Design Review" shall mean the site plan and design review approvals as required by the City Code and the Specific Plan, which shall be part of the Entitlements. "Developer" shall have the meaning set forth in Section 1.4.2. "Developer Affiliate" shall mean with respect to any Developer, any entity that directly or indirectly Controls, is Controlled by or is under common Control with that Developer. "Developer Closing Conditions" shall have the meaning set forth in Section 7.2.1. "Developer Commission Payment" shall have the meaning set forth in Section 18.12.1. "Developer Date Down and Reaffirmation Certificate" shall have the meaning set forth in Section 2.2.4.2. "Developer Excluded Information" shall mean information that is (i) known by Developer prior to the disclosure thereof by the City or its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns; (ii) developed by or on behalf of Developer without the use of any confidential information provided by the City or its officers, employees, agents, attorneys, affiliates, representatives, contractors, successors or assigns; (iii) disclosed to Developer by a third party other than the City or any of its Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 11 Por. Disp. Areas 213, 2C and 8 elected and appointed officials, employees, agents, attorneys, affiliates, representatives or contractors; or (iv) known to the public through no act or fault of Developer in violation of this Agreement. "Developer Final Tract Map" shall have the meaning set forth in Section 1.2.3. "Developer Insolvency Event" shall have the meaning set forth in Section 2.2.7. "Developer Knowledge Parties" shall mean with respect to the Initial Developer, the Key Employees of Initial Developer and Deborah Cussen, Jay D'Elia and Shawn Monterastelli and following any Transfer, shall mean individuals in positions of responsibility and involvement in the Project at the time any representations and warranties are to be made who hold positions of authority commensurate with the positions held by the Developer Knowledge Parties of the Initial Developer as of the Effective Date. "Developer Original Certificate" shall have the meaning set forth in Section 4.6.2.1. "Developer Releasing Party" shall have the meaning set forth in Section 4.5.3. "Developer Representatives" shall have the meaning set forth in Section 5.1. "Developer Title Endorsements" shall have the meaning set forth in Section 6.4. "Developer TUSD Lien Release Payment" shall have the meaning set forth in Section 8.7.5.3(i). "Developer's Knowledge" shall have the meaning set forth in Section 3.1.17. "Development Agreement" or "DA" shall have the meaning set forth in Section 1.6.2. "Development Costs" shall have the meaning set forth in Section 8.2. "Development Parcels" shall have the meanings set forth in Section 1.2.1. "Development Permits" shall mean all ministerial permits, certificates and approvals which may be required by the City or any other Governmental Authority for the development and construction of the Market Rate Project Improvements and the Affordable Project Improvements for the Market Rate Project and the Affordable Project, respectively, including any engineering permits, grading permits, parking structure permits, construction permits, encroachment permits, building permits or other permits as may be necessary pursuant to Chapter 4 of the Specific Plan and/or the City Code and which shall be obtained and maintained in each case in accordance with this Agreement, the Development Agreement, the Entitlements and any required environmental mitigation. "Disapproved Exception" shall have the meaning set forth in Section 6.3. "District" shall have the meaning set forth in Section 8.7.3.1. "DTSC" shall mean the California Department of Toxic Substances Control. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 12 Por. Disp. Areas 213, 2C and 8 "Due Diligence Information" shall mean any and all information or documentation relating to the Development Parcels furnished to Developer by the City, or its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors or consultants or obtained by Developer with respect to Property prior to the Close of Escrow. "Effective Date" shall have the meaning set forth in the first paragraph of this Agreement and if no date is set forth in that location shall be the date of City Council approval of this Agreement (even if executed subsequent to such date). "ENA" shall have the meaning set forth in Section 1.1.7. "ENA Deposit" shall have the meaning set forth in Section 1.8.1. "End User" shall mean any (i) utility or Governmental Authority with respect to any transfer of portions of the Real Property or grants of easements affecting the Real Property desirable for the development of the Real Property, including the City or any lighting or landscaping district and (ii) any natural person that is the tenant under a lease for a Residential Unit and inhabits the unit for which it is the tenant. "Entitlements" shall mean the Development Agreement and all discretionary land use approvals and entitlements legally required by the City or any other Governmental Authority as a condition of subdivision of the Real Property or any portion thereof, development of the Real Property and/or construction of the Market Rate Project Improvements and the Affordable Project Improvements and shall include those specific Entitlements described in Section 8.4.2, but specifically excluding Development Permits. "Environmental Agency" shall mean any federal, State, or regional agency with applicable jurisdiction over the environmental conditions of the Real Property. "Environmental Claims" shall have the meaning set forth in Section 10.2. "Environmental Laws" shall mean any federal, State, regional or local laws, ordinances, rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory decrees, judgments and orders and common law, including those relating to industrial hygiene, public safety, human health, or protection of the environment, or the reporting, licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage, discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous Materials. Environmental Laws shall include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) ("CERCLA"); the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.) ("RCRA"); the federal Water Pollution Control Act, as amended, (33 U.S.C. Section 1251 et seq.); the Toxic Substances Control Act, as amended (15 U.S.C. Section 2601 et seq.); the Hazardous Substances Account Act (Chapter 6.8 of the California Health and Safety Code Section 25300 et seq.); Chapter 6.5 commencing with Section 25100 (Hazardous Waste Control) and Chapter 6.7 commencing with Section 25280 (Underground Storage of Hazardous Substances) of the California Health and Safety Code; and the California Water Code, Sections 13000 et seq. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 13 Por. Disp. Areas 213, 2C and 8 "Environmental Matters" shall mean (i) the environmental condition of the Development Parcels; (ii) the compliance of the Development Parcels with Environmental Laws; (iii) the existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, or from, the Development Parcels or any current or future improvement thereon or any portion thereof, and/or (iv) Claims of or acts or omission to act of any Governmental Authority or any other third parry arising or resulting directly or indirectly from or related to any actual, threatened, or suspected Release of a Hazardous Material on, in, under, from, about, or adjacent to the Development Parcels or any current or future improvement thereon, including any Investigation or Remediation at or about the Development Parcels or any current or future improvement thereon; provided that in each case in which the property in question is the Returned Property, the foregoing shall apply as to the Returned Property only. "Equity Commitment" shall have the meaning set forth in Section 4.6.2.3. "Equity Investor" shall mean (i) TICAD or (ii) The Irvine Company or (iii) one or more other Persons selected by Developer and approved by the City in its sole discretion, to provide equity funding for the Market Rate Project and the Affordable Project and as to a Person under clause iii of this definition only, which has Net Worth and Liquid Assets, as determined by the City in its sole discretion, to fund all Development Costs for the Market Rate Project and the Affordable Project as described in the last Financing Plan approved by the City for the Market Rate Project and the Affordable Project, as applicable. 2.2.4_1. 4.6.2.3. "Equity Investor Date Down Certificate" shall have the meaning set forth in Section "Equity Investor Original Certificate" shall have the meaning set forth in Section "Escrow" shall have the meaning set forth in Section 4.4. "Escrow Holder" shall mean First American Title Insurance Company. "Evidence of Equity" shall have the meaning set forth in Section 4.6.2. "Federal Deed" shall have the meaning set forth in Section 1.2.1. "Federal Government" shall mean the United States of America (including the Navy), by and through the Secretary of the Navy, or designee. "Final Certificate of Compliance" shall mean the final Certificate of Compliance executed by the City and Recorded for the last of the Market Rate Project or the Affordable Project. "Final EIS/EIR" shall have the meaning set forth in Section 1.1.2. "Finally Approved" shall mean, with (i) respect to CFD 18-01 Zone 3 described by this Agreement, that the City Council has approved annexation of the Property into the District and the creation of CFD 18-01 Zone 3 and the RMA, that the property owners having a vote shall have voted to approve such formation and annexation, all applicable appeal and statute of limitations Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 14 Por. Disp. Areas 213, 2C and 8 periods relating thereto shall have expired without the filing of any appeal or legal challenge or any such appeal or legal challenge shall have been resolved in a manner that permits formation and annexation in a manner acceptable to the City in its sole discretion and (ii) with respect to Entitlements, that all applicable appeal and statute of limitations periods relating thereto shall have expired without the filing of any appeal or legal challenge or any such appeal or legal challenge shall have been resolved in a manner that permits development of the Market Rate Project and the Affordable Project in a manner acceptable to each of the City and Developer in their respective sole discretion. "Financing Plan" shall mean, with respect to the Market Rate Project, the Market Rate Project Financing Plan or Updated Market Rate Project Financing Plan and with respect to the Affordable Project, the Affordable Project Financing Plan or Updated Affordable Project Financing Plan submitted by Developer or Affordable Housing Developer, as applicable, in satisfaction of the requirements in Sections 4.6.1, 4.7 and 8.6 and last approved by the City in satisfaction of such requirements. "FIRPTA Affidavit" shall mean an affidavit in form reasonably satisfactory to Developer certifying that the City is not a "foreign person" under the federal Foreign Investment in Real Property Tax Act of 1980. "First Party" shall have the meaning set forth in Section 18.7.3. "Force Majeure Delay" shall have the meaning set forth in Section 18.7.1 as limited by Section 18.7.2. "Foreclosure" shall mean the foreclosure of any Permitted Leasehold Mortgage (or any sale thereunder), whether by judicial proceedings, by virtue of any power of sale under the Permitted Leasehold Mortgage, by acceptance of a deed -in -lieu of foreclosure, or by any other conveyance of all or any portion of the Property, the Market Rate Project Improvements and/or Affordable Project Improvements by other appropriate proceedings in the nature of a foreclosure, resulting in the Transfer of all or any portion of the Property, the Market Rate Project Improvements and/or Affordable Project Improvements to (i) any Permitted Leasehold Mortgagee, (ii) any entity that Controls Permitted Leasehold Mortgagee, is Controlled by Permitted Leasehold Mortgagee, or is Controlled by an entity that also Controls Permitted Leasehold Mortgagee, (iii) any participating lender in the Construction Loan (excluding Developer or any Developer Affiliate) secured by a Permitted Leasehold Mortgage, and/or (iv) any agent or nominee for one or more of the lenders in clauses (i through (iii) of this definition under the Permitted Leasehold Mortgage that secures the Construction Loan. "FOST" shall mean the Department of Navy findings and determinations that the Development Parcels were suitable for transfer to the City, pursuant to the document entitled "Finding of Suitability for Transfer for Southern Parcels 4-8, 10-12, 14, and 42 and Parcels 25, 26, 30-33, 37, and Portions of 40 and 41 dated September 28, 2001. "Full Insurable Value" shall have the meaning set forth in Section 11.2.2. "GAAP" shall mean generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute Tustin TIC DDA 03.11.25 (HM)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 15 Por. Disp. Areas 213, 2C and 8 of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (FASB). "General Plan" shall mean the most current general plan for the City of Tustin. "Governmental Authority" and "Governmental Authorities" shall mean, respectively, each and all federal, State, county, municipal and local governmental and quasi -governmental bodies and authorities (including the United States of America, California and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over either or any of the Parties, the Market Rate Project, the Affordable Project, the Development Parcels or over any property owned by the City upon which work is conducted by or on behalf of Developer in connection with construction of the Market Rate Project, the Affordable Project or such portions of the foregoing as the context indicates. "Governmental Capacity" shall have the meaning set forth in Section 18.25. "Governmental Requirements" shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines, conditions, instructions, and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or otherwise affecting any or all of the Parties, the Market Rate Project, the Affordable Project, the Market Rate Project Improvements, the Affordable Project Improvements, the Development Parcels or any component thereof or over any property owned by the City upon which work is conducted by or on behalf of Developer in connection with construction of the Market Rate Project or the Affordable Project, as applicable, and including the California Surplus Land Act and Guidelines as the same may be amended from time to time, Environmental Laws, the City Code, the Specific Plan, the Entitlements, the Development Permits and the Approved Plans. "Governmental Successors" shall mean each and every Person that is a successor or an assignee of the City and that is a governmental entity or agency. "Govt. Code" shall have the meaning set forth in Section 1.1.6. "Grading Work" shall mean all of the grading work required to be completed by Developer pursuant to the Approved Plans, which shall include rough and precise grading of the Real Property and the portions of the Boundary Landscape Area owned by the City, including internal drives and access points, which shall be performed on a Parcel -by -Parcel basis unless otherwise agreed by the City. "Ground Lease" shall mean a lease pursuant to which an Owner leases a leasehold interest in one or more Parcels within Lot 13 and the improvements then present or constructed thereon to an Affordable Housing Developer. "Ground Lease Option" shall have the meaning set forth in Section 1.4.3. "Ground Lessee" shall mean each and every Person holding the tenant's interest in a Ground Lease. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 16 Por. Disp. Areas 213, 2C and 8 "Guarantor" shall mean (i) TICAD or (ii) such other Person(s) approved by the City in its sole discretion, and as to Persons under clause(ii) of this definition only, with assets and liquidity meeting the Minimum Asset Standards and sufficient, in the determination of the City in its sole discretion, to secure the development, construction and maintenance obligations of Developer or any Transferee with respect to the Market Rate Project and the Affordable Project, and the other requirements of this Agreement, including Section 8.9. "Guarantor Date Down Certificate" shall have the meaning set forth in Section 2.2.4.4. "Guarantor Illiquidity Event" shall have the meaning set forth in the Guaranty. "Guarantor Original Certificate" shall have the meaning set forth in Section 2.2.4.4. "Guaranty" shall mean a guaranty made by a Guarantor and to which the City is a named beneficiary, which shall, in the case of the initial Guarantor, be in substantially the form and substance of the guaranty attached as Attachment 14A, as the same shall be reaffirmed, amended, or replaced in accordance with this Agreement. "Guaranty Legal Opinion" shall have the meaning set forth in Section 2.4.4.4. "Hazardous Materials" shall mean and include the following: (i) "Hazardous Substance", "Hazardous Material", "Hazardous Waste", or "Toxic Substance" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. subsection 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. subsection 5101, et seq., or the Resource Conservation and Recovery Act, 42 U.S.C. subsection 6901, et seq.; (ii) An "Extremely Hazardous Waste", a "Hazardous Waste", or a "Restricted Hazardous Waste", under subsections 25115, 25117, or 25122.7 of the California Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the California Health and Safety Code; Ii1 "Hazardous Material", "Hazardous Substance", "Hazardous Waste", "Toxic Air Contaminant", or "Medical Waste" under subsections 25281, 25316, 25501, 25501.1, 117690 or 39655 of the California Health and Safety Code; (iv) "Oil" or a "Hazardous Substance" listed or identified pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U. S.C. Section 1321, as well as any other hydro carbonic substance or by-product; Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 17 Por. Disp. Areas 213, 2C and 8 (v) Listed or defined as a "Hazardous Waste", "Extremely Hazardous Waste", or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the California Code of Regulations; (vi) Listed by California as a chemical known by California to cause cancer or reproductive toxicity pursuant to Section 25249.8 of the California Health and Safety Code; (vii) A material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures damages or threatens to damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or public agency requires in order for the property to be put to any lawful purpose; (viii) Any material whose presence would require remediation pursuant to the guidelines set forth in the California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank; (ix) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. subsection 136 et seq.; (x) Asbestos, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. subsection 2601 et seq.; (xi) Any radioactive material including any "source material", "special nuclear material", "by-product material", "low-level wastes", "high-level radioactive waste", "spent nuclear fuel" or "transuranic waste", and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U.S.C. subsection 2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. subsection 10101 et seq., or pursuant to the California Radiation Control Law, California Health and Safety Code Section 114960 et seq.; (xii) Regulated under the Occupational Safety and Health Act, 29 U.S.C. subsection 651 et seq., or the California Occupational Safety and Health Act, California Labor Code subsection 6300 et seq.; (xiii) Regulated under the Clean Air Act, 42 U.S.C. subsection 7401 et seq. or pursuant to Division 26 of the California Health and Safety Code; and/or (xiv) Any substance or compound regarding which a federal or State agency has established a health advisory, including but not limited to, Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) or any associated additives or degradation byproducts thereof. "HCD" shall have the meaning set forth in Section 1.1.9. "High Quality Residential Project" shall mean a multi -family development that is of high quality design and construction and very well maintained and managed comparably to The Amalfi in the City. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 18 Por. Disp. Areas 213, 2C and 8 "Horizontal Improvements" shall mean with respect to both the Market Rate Project and the Affordable Project: (i) the Grading Work; (ii) all local on -site infrastructure improvements and utilities and utility systems required to be constructed or installed on or in connection with the development of the Real Property including (A) all Private Drives and Sidewalks, roadways, drives, bike paths, alleyways, sidewalks, courtyards, hardscaping, fountains and parking lots within the Real Property and all traffic and circulation mitigation to support the Market Rate Project and the Affordable Project; (B) all dry and wet utilities and utility systems required for each component of the Market Rate Project and the Affordable Project to the boundary of each Parcel, including domestic and reclaimed water; sewer; telemetry; utilities (electricity, gas, telephone, cable, telecommunications, etc.), and other infrastructure normally required to service a new High Quality Residential Project; and (C) mainline utilities for the Market Rate Project and the Affordable Project to the boundary of the Real Property, (iii) the Common Area Improvements facilities, including restrooms and swimming pools, and (iv) installation of all Landscape Improvements and installation or restoration, as applicable, of all sidewalks within the Boundary Landscape Area, and shall include all improvements required by the Entitlements and Development Permits conditions and all other Governmental Requirements as a condition to development of the Market Rate Project and the Affordable Project, all as generally described in Attachment 8 and depicted on Attachment 3. The Horizontal Improvements shall be developed on a parcel by parcel basis. "HUD" shall mean the U.S. Department of Housing and Urban Development. "Joint Use Agreement" shall have the meaning set forth in Section 4.7.3.4. "Independent Contract Consideration" shall have the meaning set forth in Section 1.8.2. "Initial Developer" shall have the meaning set forth in Section 1.4.2. "Injured Party" shall have the meaning set forth in Section 14.1. "Intangible Property" shall mean all rights, claims (other than claims under insurance policies maintained by or for the benefit of the City) and all permits, licenses, approvals, authorizations, issued by any Governmental Authorities in connection with the Real Property; but with respect to the Navy Responsibilities shall be a non-exclusive assignment of rights and shall not be deemed an assignment or release by the City of its rights against any responsible party or against the Federal Government or any third party with respect to the Navy Responsibilities. "Investigation(s)" shall mean any observation, inquiry, examination, sampling, monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying of or concerning the Development Parcels, or any other property upon which Developer is required to construct the Market Rate Project Improvements and the Affordable Project Improvements, including the air, soil, surface water, and groundwater, and the surrounding population or properties, or any of them, to characterize or evaluate the nature, extent or impact of Hazardous Materials. "IRWD" shall mean the Irvine Ranch Water District. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 19 Por. Disp. Areas 213, 2C and 8 "Key Employees" shall mean the following employees of Initial Developer: Kevin Roberts and, with respect to Affordable Project Developer, Geoffrey C. Brown, provided that following any Transfer or Transfer of Control, the Transferee shall specify its Key Employees. "Landscape Area" shall mean the Publicly Accessible Common Area and the Boundary Landscape Area, collectively. "Landscape Improvements" shall mean any and all landscaping, irrigation, lighting (other than City street lighting) and related utilities, street furniture, structures, and/or hardscape improvements required by the Approved Plans, the Entitlements, the Development Permits, the DA and/or the DDA to be constructed in connection with the Project upon the Landscape Area, which shall be developed on a parcel -by -parcel basis. "Landscape Installation and Maintenance Agreement" shall have the meaning set forth in Section 7.2.1.1. "Leasehold Mortgage" shall have the meaning set forth in Section 17.1.1. "Leasehold Mortgagee" shall mean the Mortgagee under a Leasehold Mortgage. "Lien Release Amounts" shall mean the amounts, if any, (i) of any City Lien and (ii) required to be paid to third parties by the City to clear all monetary liens (including all Construction Liens) and Mortgages that encumber the Property other than Leasehold Mortgages on the date of a Reversion Event or the date of the close of escrow pursuant to the Right of Repurchase and which, with respect to taxes and assessments, are then due and payable. "Liquid Assets" shall mean assets held in the form of cash, marketable securities and other cash equivalents that have not been pledged as collateral for any debt or other obligations. "Lot IV shall have the meaning set forth in Section 1.2.1. "Lot 12" shall have the meaning set forth in Section 1.2.1. "Lot 13" shall have the meaning set forth in Section 1.2.1. "Lot 13 PDA" shall have the meaning set forth in Section 1.4.3. "Lot 13 Property" shall mean the Lot 13 Real Property together with (i) all existing improvements, if any, located on the Lot 13 Real Property as of the Effective Date; (ii) all appurtenances pertaining to the Lot 13 Real Property or such improvements; (iii) all permits, licenses, approvals and authorizations issued prior to Close of Escrow by any Governmental Authority in connection with the Lot 13 Real Property for development of the Affordable Project Improvements; (iv) the right to construct Lower Income Units and four (4) manager/staff Residential Units on the Lot 13 Real Property, and (v) all of City's right, title and interest in, to and arising out of the Intangible Property (excluding the matters described in Section 1.2.2). "Lot 13 Real Property" shall mean the Real Property within the boundaries of the legal lot comprising Lot 13. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 20 Por. Disp. Areas 213, 2C and 8 "Lot 13 Transfer" shall have the meaning set forth in Section 4.7.1. "Lot 13 Transfer Conditions" shall have the meaning set forth in Section 4.7.3. "Lower Income Households" shall mean persons and families whose income does not exceed the qualifying limits for lower income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937. The limits shall be published by the Department of Housing and Community Development in the California Code of Regulations as soon as possible after adoption by the Secretary of Housing and Urban Development. In the event the federal standards are discontinued, the Department of Housing and Community Development shall, by regulation, establish income limits for lower income households for all geographic areas of the state at eighty percent (80%) of Area Median Income, adjusted for family size and revised annually. "Lower Income Households" includes Very Low Income Households. "Lower Income Units" shall mean Residential Units that are constructed and rented to, occupied by, or held available for Lower Income Households. "Major Modifications" shall mean, with respect to Basic Concept Plan or any component thereof (i.e., the Site Plan, the Scope of Development, or the Phasing Plan), any modification, revision, or change that is not a Minor Modification. "Market Rate Project" shall have the meaning set forth in Section 1.3.2. "Market Rate Project Certificate of Compliance" shall have the meaning set forth in Section 9.3. "Market Rate Project Financing Plan" shall have the meaning set forth in Section 4.6.1. "Market Rate Project Horizontal Improvements" shall mean the Horizontal Improvements required in connection with development and construction of the Market Rate Project and shall include in -tract infrastructure improvements and connections to public on -site and off -site infrastructure. "Market Rate Project Improvements" shall have the meaning set forth in Section 1.3.2. "Market Rate Project Vertical Improvements" shall mean the Vertical Improvements required in connection with development, construction and operation of the portion of the Market Rate Project to be developed on the Market Rate Real Property, comprised of (i) approximately 466 Market Rate Units (the final number of such Market Rate Units to be determined by the Approved Plans) to be constructed in Building 1 and Building 2 (as shown on the Phasing Plan) each of which shall be on a separate legal Parcel to be created by the Developer Final Tract Map comprising a portion of Lot 11 as contemplated by the Scope of Development and as further depicted on the Site Plan and (ii) approximately 532 Market Rate Units (the final number of such Market Rate Units to be determined by the Approved Plans) to be constructed in Building 3 and Building 4 (as shown on the Phasing Plan) each of which shall be on a separate legal Parcel to be created by the Developer Final Tract Map comprising a portion of Lot 12 as contemplated by the Scope of Development and as further depicted on the Site Plan. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 21 Por. Disp. Areas 213, 2C and 8 "Market Rate Property" shall mean the Property within the boundaries of and/or relating to the legal lots comprising Lot 11 and Lot 12, collectively. "Market Rate Real Property" shall mean the Real Property within the boundaries of the legal lots comprising Lot 11 and Lot 12. "Market Rate Units" shall mean the Residential Units to be constructed on the Market Rate Real Property. "Material Default" shall have the meaning set forth in Sections 14.2.1 and 14.2.2. "MCAS Tustin" shall have the meaning set forth in Section 1.1. "Memorandum of Agreement" shall have the meaning set forth in Section 1.1.3. "Memorandum of DDA" shall mean a memorandum of record of this Agreement to be Recorded against the Property in substantially the form and substance of the memorandum attached to this Agreement as Attachment 12. "Mezzanine Financing" shall mean, with respect to any Person, a loan that is secured by a pledge of the equity interests in such Person or any entity in the chain of ownership of such Person. "Minimum Asset Standards" shall mean the minimum thresholds of Net Worth and Liquid Assets required to be maintained by Guarantor pursuant to each Guaranty, which shall be subject to revision upon (i) any Transfer, (ii) any substitution of Guarantor pursuant to Section 8.9 or (iii) when authorized pursuant to Section 4.6.1.4. As of the Effective Date, the Minimum Asset Standards in effect require the Guarantor to maintain Net Worth of not less than Eight Hundred Million Dollars ($800,000,000.00) and Liquid Assets of not less than One Hundred Million Dollars ($100,000,000.00). "Minor Modifications" shall mean, with respect to the review by the City in its Proprietary Capacity of the Basic Concept Plan or any component thereof (i.e., the Site Plan, the Scope of Development, or the Phasing Plan), any modification, revision, or change that (i) as to the Site Plan, the Scope of Development and the Basic Concept Plan, is substantially consistent with the most recent such documents approved by the City, does not increase or reduce by more than five percent (5%) the overall gross square footage of any Building containing Residential Units, and does not result in any modification to or reduction in (unless offset within the Project) the character of the development concept or the design and materials to be used in enhancing the architecture and aesthetics of the Project Improvements, or (ii) as to the Basic Concept Plan conforms to or represents a logical or commercially reasonable implementation of the previously approved Basic Concept Plan. "Mortgage" shall mean any indenture of mortgage or deed of trust hypothecation, pledge, assignment for security purposes, bond, grant of taxable or tax-exempt funds from a governmental agency or other security interest or any documents constituting or relating to a sale -leaseback transaction, together with all loan documents related thereto, but excluding any community facilities districts, service districts, assessment districts, landscape and lighting districts, or other Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 22 Por. Disp. Areas 213, 2C and 8 assessments created or imposed by any Governmental Authority, and for the avoidance of doubt shall include any Permitted Leasehold Mortgage. "Mortgagee" shall mean any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage or, with respect to any property that is the subject of a sale -leaseback transaction, the Person acquiring fee title, and for the avoidance of doubt shall include any Permitted Leasehold Mortgagee. "Navy" shall mean the United States Department of Navy. "Navy Responsibilities" shall have the meaning set forth in Section 4.5.2.3. "Net Worth" shall mean the net worth of Guarantor or Equity Investor which shall be determined based on (i) the fair market value of the assets of each of the Persons comprising Guarantor or Equity Investor, as applicable (including the aggregate amount of uncalled capital commitments from such Persons' creditworthy direct and/or indirect limited partners (but excluding all intangible assets such as goodwill, intellectual property, licenses, organizational costs, deferred amounts, accumulated depreciation, intercompany receivables, covenants not to compete, unearned income, restricted funds and like matters), investments in subsidiaries or other Persons Controlled by, or is under common Control with Guarantor or Equity Investor, as applicable), less (ii) all liabilities of the Persons comprising Guarantor or Equity Investor, as applicable (as determined in accordance with GAAP). "Non -Environmental Claims" shall mean all Claims brought by third parties that are not Environmental Claims. "Notice of Completion" shall mean the notice of completion filed pursuant to California Civil Code Section 8182 after Completion in each case by an "owner" as defined in Section 8182(e) with respect to both: (i) private Market Rate Project Improvements or Affordable Project Improvements, as applicable; and (ii) public Market Rate Project Improvements or Affordable Project Improvements, as applicable, performed by Developer, Affordable Housing Developer, any Successor Owner, any Successor Ground Lessee or such Person's contractor. "Off -Sets" shall have the meaning set forth in Section 8.7.5.2. "Opening of Escrow" shall have the meaning set forth in Section 4.4. "Original ALTA Coverage" shall have the meaning set forth in Section 6.4. "Original Purchase Price Deposit" shall have the meaning set forth in Section 4.3.1. "Other Agreements" shall mean the Quitclaim Deed, Special Restrictions, Landscape Installation and Maintenance Agreement, the Public Access Covenant, the Memorandum of DDA, the Development Agreement, the Affordable Housing Declaration and the TUSD Assignment. "Outside Closing Date" shall have the meaning set forth in Section 7.1.1. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 23 Por. Disp. Areas 213, 2C and 8 "Owner" shall mean prior to the recording in the Official Records of a Certificate of Compliance for a Parcel, Developer, and thereafter shall have the meaning set forth in the Special Restrictions as to provisions incorporated from the DDA therein. "Owner Affiliate" shall mean with respect to any Owner, any entity that directly or indirectly Controls, is Controlled by or is under common Control with that Owner. "Parcel" shall mean each of Lot 11, Lot 12, and Lot 13 individually and, in each case, such parcel(s) or lot(s) legally created from all or any portion thereof pursuant to a Recorded Developer Final Tract Map or such other subset thereof as is indicated by the text. "Parcels" shall mean all of Lot 11, Lot 12 and Lot 13 collectively, and, in each case, such parcel(s) or lot(s) legally created from all or any portion thereof pursuant to a Recorded Developer Final Tract Map or such other subset thereof as is indicated by the text. "Parties" shall mean the City and Developer, collectively. "Party" shall mean either of the City or Developer, individually, as parties to this Agreement. "Permitted Exceptions" shall have the meaning set forth in Section 6.2 as may be modified by Section 6.3. "Permitted Leasehold Mortgage" shall mean any indenture of mortgage or deed of trust, bonds, grant of taxable or tax-exempt funds from a governmental agency or other conveyance of a security interest in the leasehold estate created by an Approved Ground Lease on Lot 13 to a Permitted Leasehold Mortgagee for the purpose of development and construction of all or a portion of the Affordable Project. "Permitted Leasehold Mortgagee" shall mean the Mortgagee, and any successor or assign of such Mortgagee having all right, title and interest in and to the loan documents, and in each case meeting the criteria set forth in Section 17.1 through 17.3 and accordingly entitled to the Permitted Leasehold Mortgagee protections provided by this Agreement. "Permitted Transfers" shall have the meaning set forth in Section 2.2.2. "Person" shall mean an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, governmental agency or other entity, domestic or foreign. "Phase" shall have the meaning set forth in Section 1.3.4. "Phase 1" shall have the meaning set forth in Section 1.3.4.1. "Phase 2" shall have the meaning set forth in Section 1.3.4.2. "Phases" shall have the meaning set forth in Section 1.3.4. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 24 Por. Disp. Areas 213, 2C and 8 "PLL Policy" shall have the meaning set forth in Section 11.1.4. "Potential Default" shall have the meaning set forth in Section 14.1. "Potential Returned Property" shall mean those portions of the Property which are eligible for repurchase pursuant and subject to Section 16.3 due to occurrence of a Repurchase Default or revesting pursuant to Section 16.4 due to occurrence of a Reversion Action Trigger, as applicable, together with all Market Rate Project Improvements or Affordable Project Improvements constructed thereon by or on behalf of Developer. "Pre -Closing Entitlements" shall mean the Entitlements listed in of Section 8.4.2(i) through (iii as the same may be modified from time to time with the approval of the City. "Preliminary Report" shall have the meaning set forth in Section 6.2. "Prevailing Party" shall have the meaning set forth in Section 18.2. "Private Drives and Sidewalks" shall mean those private streets, roadways, sidewalks, pedestrian pathways, and bike ways to be constructed by Developer on the Real Property. "Products" shall have the meaning set forth in Section 14.3.2. "Project" shall have the meaning set forth in Section 1.3.1. "Project Fair Share Contribution" shall have the meaning set forth in Section 4.2.2. "Project Improvements" shall mean the Market Rate Project Improvements and Affordable Project Improvements, collectively. "Property" shall have the meaning set forth in Section 4.1.1. "Proprietary Capacity" shall have the meaning set forth in Section 18.25. "Public Access Covenant" shall mean that certain Public Access Covenant to be executed and delivered by the City and Recorded against the Real Property at the Close of Escrow, in substantially the form and substance of the Public Access Covenant attached to this Agreement as Attachment 13C. "Public Records Act" shall mean the Public Records Act of the State of California, Govt. Code Sections 7920.000-7931.000). "Publicly Accessible Common Area" shall mean those portions of the Real Property depicted as "Publicly Accessible Common Area" on Attachment 13A upon which Developer shall construct or install the Publicly Accessible Common Area Improvements, and to which the public shall be provided access pursuant to one or more easements granted by Covenant or another instrument approved by the City. "Publicly Accessible Common Area Improvements" shall mean the improvements constructed or to be constructed on the Publicly Accessible Common Area including landscaping, Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 25 Por. Disp. Areas 213, 2C and 8 amenities, and other improvements depicted in the Approved Plans and/or required by the approved Entitlements. "Purchase Price" shall have the meaning set forth in Section 4.2.1. "Purchase Price Deposit" shall have the meaning set forth in Section 4.3.1. "Qualified Institutional Lender" shall mean (i) a nationally chartered bank, national association, federal association bank, savings and loan association, investment bank, state chartered bank, lending institution, pension fund, insurance company or other institutional lender which is duly established and in the business of financing the size and type of development contemplated hereunder, and such term shall include but not be limited to Fannie Mae, Freddie Mac, FHA, Citibank, Wells Fargo, Union Bank, US Bank, and Bank of America or (ii) any of East West Bank, Bank of America, Citi Community Capital, JP Morgan Chase, Merchants Capital, Berkadia, U.S. Bank, JLL, Lument, Capital One, Greystone, Deutsche Bank, Walker & Dunlop, CBRE, Bellwether Enterprise, PNC, RBC, California Bank & Trust, and Banner Bank, or (ii) any governmental or quasi -governmental agency or joint powers authority or indenture trustee acting for or on behalf of such Person. "Qualified Tax Credit Investor" shall mean (i) a Person who (A) is an experienced limited partner and investor in multifamily housing developments receiving Tax Credits, and (B) has obtained or is contractually obligated to obtain a limited partnership or limited liability company membership interest in Affordable Housing Developer whereby it will receive an allocation of at least ninety percent (90%) or more some or all of the Tax Credits allocated by the State or the Federal Government obtained in connection with the Affordable Project; provided that The Irvine Company, TICAD or any Person under common Control with The Irvine Company or TICAD is approved as a Qualified Tax Credit Investor. Bank of America, Boston Financial, CREA, Enterprise, Hudson Housing Partners, JP Morgan Chase, National Equity Fund, PNC, Raymond James, RBC, Red Stone, Richmond Group, Wells Fargo, US Bank and WNC are approved as Qualified Tax Credit Investors. Any Qualified Tax Credit Investor shall have the right to replace the Affordable Housing Developer's general partner(s) or manager (s) for cause under its partnership or limited liability documents, and the right to transfer its limited partnership or limited liability company interest without modification to its status as a Qualified Tax Credit Investor. "Quitclaim Deed" shall mean the quitclaim deed to be executed and delivered by the City at the Close of Escrow to quitclaim all of the City's interests in the Property (subject to Section 4_1 and the terms of this Agreement) to Developer. The Quitclaim Deed shall be in substantially the form and substance of the deed attached hereto as Attachment 11, acknowledged and in Recordable form. "Reaffirmation Legal Opinion" shall mean a legal opinion in the form and substance of the legal opinion attached as Attachment 14G to this Agreement, executed by legal counsel to Guarantor when required by this Agreement. "Reaffirmation of Guaranty" shall mean a reaffirmation of the Guaranty executed by Guarantor at each Transfer which shall be in substantially the form and substance of the Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 26 Por. Disp. Areas 213, 2C and 8 Reaffirmation of Guaranty attached as Attachment 14E to this Agreement; provided that a reaffirmation of Guaranty shall not be required for a Lot 13 Transfer or where a new Guaranty in a form and made by a Guarantor approved by the City is provided. "Real Property" shall have the meaning set forth in Section 1.2.2. "Record", "Recording" and "Recorded" shall mean to record the specified instrument, or the current or past recording of the specified instrument, in the office of the Clerk Recorder for Orange County, California. "Recordable" shall mean with respect to any document, that such document has been acknowledged and is otherwise in a form that would permit Recording thereof. "Release" (with respect to Hazardous Materials) shall mean any releasing, or threat of releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing, or dumping into the environment. "Remediate" or "Remediation" shall mean any response or remedial action as defined under Section 101(25) of CERCLA, and similar actions with respect to Hazardous Materials as defined under comparable state and local laws, and any other cleanup, removal, containment, abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or other mitigation or remediation of Hazardous Materials or Releases required by any Environmental Agency or within the purview of any Environmental Laws. "Repurchase Default" shall have the meaning set forth in Section 16.3.2. "Repurchase Expiration Date" shall have the meaning set forth in Section 16.3.1. "Repurchase Price" shall mean the lesser of seventy five percent (75%) of the per Residential Unit Purchase Price paid at Close of Escrow or fair market value. "Repurchase Property" shall have the meaning set forth in Section 16.3.1. "Residential Unit" or "Residential Units" shall mean the residential units within each Building to be developed on the Real Property. "Responsible Developer" shall mean the Initial Developer, or if Initial Developer has been previously released pursuant to Section 2.2.4, shall mean any Transferee that has been approved by the City in accordance with Section 2.2.3.1, and shall not include any Affordable Housing Developer. "Returned Property" shall mean those portions of the Property for which the City has exercised its Right of Repurchase as provided in and subject to Sections 16.3 and 16.6 or its Right of Reversion as provided in and subject to Sections 16.4 and 16.6 as applicable, including all Market Rate Project Improvements or Affordable Project Improvements constructed thereon by or on behalf of Developer. "Reuse Plan" shall have the meaning set forth in Section 1.1. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 27 Por. Disp. Areas 213, 2C and 8 "Reversion Action Trigger" shall have the meaning set forth in Section 16.4.1. "Reversion Action Trigger Date" shall have the meaning set forth in Section 16.4.1. "Reversion Event" shall have the meaning set forth in Section 16.4. "Reversion Expiration Date" shall mean the date upon which the Right of Reversion expires as to each Phase, and specifically, (i) as to Phase 1, shall mean the later of (A) issuance of a certificate of occupancy for the first Market Rate Project Building in that Phase and (B) commencement of construction of Horizontal Improvements (other than Grading Work) for Building 5 (as shown on the Phasing Plan) on Lot 13, and (ii) as to Phase 2, the later of (A) issuance of a certificate of occupancy for the first Market Rate Project Building in Phase 2 and (B) if the portion of the Affordable Project including Building 5 is subject to a Ground Lease separate from Building 6, commencement of construction of Horizontal Improvements (other than Grading Work) for Building 6 (as shown on the Phasing Plan) on Lot 13. "Reversion Property" shall have the meaning set forth in Section 16.4.1. "RFP" shall mean request for proposal. "Right of Repurchase" shall have the meaning set forth in Section 16.3.1. "Right of Reversion" shall have the meaning set forth in Section 16.4. "RMA" shall have the meaning set forth in Section 7.1.2.1. "Schedule of Performance" shall mean the document attached as Attachment 7 to this Agreement, as the same may be revised or extended from time to time in accordance with this Agreement, setting forth the dates and time periods for submissions, approvals and actions for the Term, including the construction and Completion of the Market Rate Project Improvements and the Affordable Project Improvements. "Scope of Development" shall mean the description of the Market Rate Project, the Affordable Project, the Market Rate Project Improvements and the Affordable Project Improvements attached as Attachment 8 to this Agreement. "Second Party" shall have the meaning set forth in Section 18.7.3. "Site Plan" shall have the meaning set forth in Section 1.2.1. "SLA Guidelines" shall have the meaning set forth in Section 1.1.9. "SLA Regulations" shall have the meaning set forth in Section 1.1.9. "Sole" shall have the meaning set forth in Section 1.9.5. "Special Restrictions" shall mean the Declaration of Special Restrictions for Portions of Disposition Areas 2B, 2C and 8, in substantially the form and substance of the document attached Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 28 Por. Disp. Areas 213, 2C and 8 hereto as Attachment 20 to be executed by the City and accepted by Developer and acknowledged in Recordable form and Recorded at the Close of Escrow. "Specific Plan" shall mean the Tustin Legacy Specific Plan as the same has been or shall be amended from time to time. "Subdivision Map" shall mean any Recorded final map or parcel map (or exemption therefrom or waiver thereof) subdividing any Parcels pursuant to the Subdivision Map Act substantially consistent with the Vesting Tentative Tract Map or such other tentative or vesting tentative map or tentative or vesting tentative parcel map as may be approved by the City with respect to the Real Property. "Subdivision Map Act" shall mean the California Subdivision Map Act as codified in Govt. Code Section 66410 et seq. "Subordination Agreement" shall have the meaning set forth in Section 17.2.3.2. "Successor Ground Lessee" shall mean each and every Person that is a successor to or assignee of Affordable Housing Developer with respect to its interest in the Ground Lease, but excluding each and every End User; provided that any such Transfer shall be subject to the applicable limitations set forth in Sections 1.4.3, 13.2.3 and 4.7 and Article 17. "Successor Owner" shall mean each and every Person owning or acquiring fee title to all or any portion of the Real Property from and after the conveyance of such Real Property to Developer by the City, but excluding each and every End User; provided that any such Transfer shall be subject to the applicable limitations set forth in Article 2. "Supplemental DU Mitigation Payments" shall have the meaning given such term in the TUSD Agreement. "Supplemental Title Report" shall have the meaning set forth in Section 6.3. "Surplus Land Act" shall have the meaning set forth in Section 1.1.9. "Survey" shall have the meaning set forth in Section 6.1. "Surveyor" shall have the meaning set forth in Section 6.1. "Tax Credits" shall mean any federal credits available under Section 42 of the Internal Revenue Code which are allocated and administered by the California Tax Credit Allocation Committee and/or any California state credits available under Section 12206 of the California Revenue and Taxation Code which are allocated and administered by the California Tax Credit Allocation Committee. "TCAC" shall have the meaning set forth in Section 4.7.4. "TCAC Application" shall have the meaning set forth in Section 4.7.3.3. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 29 Por. Disp. Areas 213, 2C and 8 "Term" shall have the meaning set forth in Section 18.13. "The Irvine Company" shall have the meaning set forth in Section 1.1.6. "TICAD" shall have the meaning set forth in Section 1.4.2. "Title Company" shall mean First American Title Insurance Company. "Transfer" shall mean (i) the transfer, sale, assignment, lease, sublease, license, entry into a property management agreement, gift, hypothecation, mortgage, pledge or encumbrance, or other similar conveyance by any Developer of Developer's interests in this Agreement, the Market Rate Project and the Affordable Project, the Property, the Market Rate Project Improvements or the Affordable Project Improvements thereon, as applicable, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, or any agreement to do so; (ii) the granting by Developer of any Mortgage, easement, license, lien or other encumbrance and/or the execution of any installment land sale contract or similar instrument affecting all or a portion of the Market Rate Project and the Affordable Project, the Property, the Market Rate Project Improvements and the Affordable Project Improvements thereon, or any portion thereof or interest therein; (iii) any divisive merger or similar term as such term is defined by the law of the state in which the transferor entity is formed, and (iv) shall also include any conversion of Developer to an entity form other than that of Developer at the time of execution of this Agreement. "Transfer Date" shall mean the effective date of any Transfer or Transfer of Control by or affecting Developer and with respect to a Transfer, shall be the date upon which the Assignment Agreement becomes effective. "Transfer of Control" shall mean, with respect to Developer or Developer's Controlling Person, the occurrence, directly or indirectly, in a single transaction or a series of transactions, of any of the following: (i) the conveyance, sale, assignment, transfer or disposition of all or substantially all of that Person's (or its Controlling Person's) assets, stock, membership or partnership interests or other equity interests; (ii) the dissolution, merger, reorganization, share exchange, recapitalization, restructuring or consolidation of that Person (or its Controlling Person), other than a transaction that would result in all of the voting securities of that Person (or its Controlling Person) outstanding immediately prior thereto to continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50.01% of the combined voting power of all of the voting securities of that Person (or its Controlling Person) or such surviving entity outstanding immediately after such transaction; and (iii) the acquisition by any "Person" or "Group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) of an aggregate of 50.01% or more of the beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934) of the issued and outstanding voting securities or other equity interests of that Person (or its Controlling Person), where such acquiring "Person" or "Group" did not directly or indirectly Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 30 Por. Disp. Areas 213, 2C and 8 (or through an affiliate) already Control or own at least 50.01 % of the voting securities or other equity interests of such Person (or its Controlling Person). "Transferable Interests" shall have the meaning set forth in Section 2.2.1. "Transferable Products" shall have the meaning set forth in Section 14.3.2. "Transferee" shall mean any Person to which a Transfer or Transfer of Control is made, of Developer's Transferable Interests, including by Transfer to a Successor Owner or Developer Affiliate. "Transferee Certificate" shall have the meaning set forth in Section 2.2.4.2. "Transferor" shall mean any Person that is a Developer under this Agreement which Transfers all of the Transferable Interests, including by Transfer to a Successor Owner or Developer Affiliate. "TUSD" shall have the meaning set forth in Section 2.2.3.7. "TUSD Agreement" shall have the meaning set forth in Section 7.2.1.8. "TUSD Assignment" shall have the meaning set forth in Section 7.2.1.8. "TUSD Bond Proceeds" means the proceeds of any issued TUSD Bonds. "TUSD Bonds" means bonds issued by TUSD on behalf of the TUSD CFD secured by the TUSD CFD Special Tax. "TUSD Certificate of Compliance" shall have the same meaning as the term "Certificate of Compliance" in the TUSD Agreement. "TUSD CFD" shall have the meaning set forth in Section 6.2. "TUSD CFD Special Tax" shall mean the special taxes levied by the TUSD CFD upon the property within the boundaries of the TUSD CFD. "TUSD Lien Release" shall have the meaning set forth in Section 8.7.5.3. "TUSD Lien Release Amount" shall have the meaning set forth in Section 8.7.5.3. "TUSD Lien Release Documentation" shall have the meaning set forth in Section 8.7.5.3. "TUSD Prepayment Alternative" shall have the meaning set forth in Section 8.7.5.2. "Tustin Legacy" shall have the meaning set forth in Section 1.1.3. "Tustin Legacy Backbone Infrastructure Program" shall have the meaning set forth in Section 8_7.1 . Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 31 Por. Disp. Areas 213, 2C and 8 "Updated Affordable Project Financing Plan" shall have the meaning set forth in Section 4.6.1.2. "Updated Market Rate Project Financing Plan" shall have the meaning set forth in Section 4.6.1.3. "USA Properties" shall have the meaning set forth in Section 1.4.3. "Very Low Income Household" shall mean persons and families whose incomes do not exceed the qualifying limits for very low income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937. These qualifying limits shall be published by the Department of Housing and Community Development in the California Code of Regulations as soon as possible after adoption by the Secretary of Housing and Urban Development. In the event the federal standards are discontinued, the Department of Housing and Community Development shall, by regulation, establish income limits for very low income households for all geographic areas of the state at fifty percent (50%) of Area Median Income, adjusted for family size and revised annually. "Very Low Income Units" shall mean each Residential Unit, if any, constructed and rented to, occupied by, or held available for a Very Low Income Household. "Vertical Improvements" shall mean all buildings, structures and other improvements, other than the Horizontal Improvements, to be constructed or installed on the Property, consistent with the Specific Plan, the Approved Plans, the Entitlements and the Development Permits. "Vesting Tentative Tract Map" shall have the meaning set forth in Section 1.2.3. Tustin TIC DDA 03.11.25 (14M)(3) FINAL ATTACHMENT 1 City of Tustin/Irvine Company Page 32 Por. Disp. Areas 213, 2C and 8 ATTACHMENT 2A - LEGAL DESCRIPTION LEGAL DESCRIPTION OF DEVELOPMENT PARCELS THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOTS 11, 12 AND 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. FOR CONVEYANCING PURPOSES ONLY: APN'S 430-481-02, 03, 04 AND 05 a -441111111- (, Ao RLOCm E N G I N E E R I N G TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 2B - DEPICTION OF DEVELOPMENT PARCELS EDINGER AVE MOFFET DR Li Q � Q W VICTORY RD ,3o o o TTM 17404 a WgRNeR q �F LOCATION OF THE z PROPERTY � QQ BARRANCA PKWY a SCALE: 1 " = 350' �,04�0 RUSCM E N G I N E E R I N G PAGE 1 OF 2 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 2B - DEPICTION OF DEVELOPMENT PARCELS d -4111111111- / ( 4O OE ENGINEERING ERTY LINE TION OF 'ROPERTY SCALE: 1 " = 250' PAGE 2OF2 al TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 3 - SITE PLAN LOT 13 BUI PEEBLER WAY LOT 12 i. z, Lu I Q U BUILDING QI2i 0 l SWAIM Y O O LOT 11 `I' D(r (I J BUILDING 1 FLIGHT WAY LEGEND - - - - PROPERTY LINE E N G I N E E R I N G BUILDING 2 SCALE: 1"=250' TUSTIN LEGACY APARTMENT HOMES PRO FORS' ATTACHMENT 4 - PRELIMINARY TITLE REPORT PRO FORMA iT }Y�i.t * ~ First American Owner's Policy of Title Insurance } r' California - 2021 v. 01.00 (07-01-2021) Transaction Identification Data, for which the Company assumes no liability as set forth in Condition 9.d.: Issuing Agent: First American Title Insurance Company National Commercial Services Issuing Office: 18500 Von Karman Ave, Suite 600, Irvine, CA 92612 Issuing Office's ALTA@ Registry ID: 1122872 Issuing Office File Number: NCS-1225375-SAl Property Address: Vacant Land, Tustin, CA SCHEDULE A Name and Address of Title Insurance Company: First American Title Insurance Company, 1 First American Way, Santa Ana, CA 92707 Policy Number: 1225375 Amount of Insurance: $TBD Premium: $TBD Date of Policy: Date of Recording at Time of Recording The Insured is: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company 2. The estate or interest in the Land insured by this policy is: Fee Simple 3. The Title is vested in: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company 4. The Land is described as follows: See Exhibit A attached hereto and made a part hereof NOTICE: This is a pro -forma policy furnished to or on behalf of the party to be insured. It neither reflects the present status of title, nor is it intended to be a commitment to insure. The inclusion of endorsements as part of the pro -forma policy in no way evidences the willingness of the Company to provide any affirmative coverage shown therein. There are requirements which must be met before a final policy can be issued in the same form as this pro -forma policy. A commitment to insure setting forth these requirements should be obtained from the Company. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 1 of 20 PRO FORMA PRO FORMA PRO FORMA PROFORMA , Jt First Am erican File No. NCS-1225375-SA1 Policy Number: 1225375 Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) SCHEDULE B EXCEPTIONS FROM COVERAGE Some historical land records contain Discriminatory Covenants that are illegal and unenforceable by law. This policy treats any Discriminatory Covenant in a document referenced in Schedule B as if each Discriminatory Covenant is redacted, repudiated, removed, and not republished or recirculated. Only the remaining provisions of the document are excepted from coverage. This policy does not insure against loss or damage and the Company will not pay costs, attorneys' fees, or expenses resulting from the terms and conditions of any lease or easement identified in Schedule A, and the following matters: 1. This item has been intentionally deleted. This item has been intentionally deleted. 3. This item has been intentionally deleted. 4. This item has been intentionally deleted. This item has been intentionally deleted. 6. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 7. This item has been intentionally deleted. 8. This item has been intentionally deleted. 9. General and special taxes and assessments for the fiscal year 2025-2026, a lien not yet due or payable. 10. General and special taxes and assessments for the fiscal year 2024-2025 are exempt. If the exempt status is terminated an additional tax may be levied. A.P. Nos.: 430-481-02; 430-481-03; 430-481-04 and 430-481-05. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 2 of 20 PRO FORMA PRO FORMA PRO FORMA PROFORMA , Jt Firs t Am erican 11. This item has been intentionally deleted. 12. This item has been intentionally deleted. 13. This item has been intentionally deleted. Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) 14. The lien of special tax assessed pursuant to Chapter 2.5 commencing with Section 53311 of the California Government Code for Community Facilities District No. 13-01, as disclosed by Notice of Special Tax Lien recorded May 16, 2013 as Instrument No. 2013000296640 of Official Records. [To be deleted upon an appropriate affidavit from Seller] 15. The lien of special tax assessed pursuant to Chapter 2.5 commencing with Section 53311 of the California Government Code for Community Facilities District No. 15-2, as disclosed by Notice of Special Tax Lien recorded November 18, 2015 as Instrument No. 2015000594036 of Official Records. [To be deleted upon an appropriate affidavit from Seller] 16. The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code, as a result of a transfer of title to the Vestee named in Schedule A or as a result of changes in ownership or new construction occurring on or after the date of the policy. 17. Easements, Covenants and Conditions contained in the Deed from The United States of America, as Grantor, to The City of Tustin, California, as Grantee, recorded May 14, 2002 as Instrument No. 20020404594 of Official Records. Reference being made to the document for full particulars. Document re -recorded April 09, 2003 as Instrument No. 2003000392129 of Official Records. 18. Easements, Covenants and Conditions contained in the Deed from The United States of America, as Grantor, to The City of Tustin, California, as Grantee, recorded May 14, 2002 as Instrument No. 20020404597 of Official Records. Reference being made to the document for full particulars. 19. The fact that the land lies within the area designated as a "Potential expansion area" of the MCAS Tustin Redevelopment Project Area, as disclosed by the document recorded June 18, 2003 as Instrument No. 2003000710836 of Official Records. 20. The conditions, character and definition disclosed in the Quitclaim Deed from the United States of America, acting by and through the Department of the Navy, as Grantor, to the City of Tustin, California, as Grantee, recorded February 08, 2006 as Instrument No. 2006000089845 of Official Records. 21. This item has been intentionally deleted. 22. This item has been intentionally deleted. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 3 of 20 PRO FORMA PRO FORMA PRO FORMA PROFORMA , Jt Firs t Am erican 23. This item has been intentionally deleted. 24. This item has been intentionally deleted. 25. This item has been intentionally deleted. 26. This item has been intentionally deleted. Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) 27. An easement for underground conduits, cables and incidental purposes, recorded June 25, 2014 as Instrument No. 2014000249986 of Official Records. In Favor of: Southern California Edison Company, a corporation, its successors and assigns Affects: As described therein 28. An easement for underground conduits, cables and incidental purposes, recorded June 25, 2014 as Instrument No. 2014000249987 of Official Records. In Favor of: Southern California Edison Company, a corporation, its successors and assigns Affects: As described therein 29. This item has been intentionally deleted. 30. This item has been intentionally deleted. 31. An easement for water and sewer pipelines, and related access purposes and incidental purposes, recorded April 06, 2021 as Instrument No. 2021000233545 of Official Records. In Favor of: Irvine Ranch Water District, a California District Affects: As described therein Terms and provisions contained in the above document. 32. An easement for public utility and incidental purposes, recorded May 24, 2021 as Instrument No. 2021000339055 of Official Records. In Favor of: Southern California Edison Company, a corporation, its successors and assigns Affects: As described therein Terms and provisions contained in the above document. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 4 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA * ~ First American Owner's Policy of Title Insurance } r' California - 2021 v. 01.00 (07-01-2021) 33. An easement for public utility and incidental purposes, recorded June 15, 2021 as Instrument No. 2021000392627 of Official Records. In Favor of: Southern California Gas Company, a California corporation, its successors and assigns Affects: As described therein Terms and provisions contained in the above document. 34. An easement for a non-exclusive perpetual Easement, and right to construct, place, operate, repair, inspect, maintain, replace, and remove such underground Telecommunication equipment as Grantee may require from time to time, consisting of one or more lines of cables, wires, conduits, above- ground utility pedestals, and necessary fixtures and appurtenances (the "Improvements"), in, under, and upon the hereinafter described Easement, together with the right to ingress thereto and egress therefrom and incidental purposes, recorded September 21, 2022 as Instrument No. 2022000312331 of Official Records. In Favor of: Cox Communications California, LLC, a Delaware limited liability company Affects: As described therein Terms and provisions contained in the above document. 35. The terms and provisions contained in the document entitled "Resolution No. 23-08" recorded March 09, 2023 as Instrument No. 2023000054080 of Official Records. 36. This item has been intentionally deleted. 37. Rights of parties in possession. [Company will delete this exception upon receipt of an adequate Owner's Affidavit from Seller] 38. The lien of special tax assessed pursuant to Chapter 2.5 commencing with Section 53311 of the California Government code for Community Facilities District No.2018-01, as disclosed by Notice of Assessment Map in Book 106, Pages 22-23 and recorded March 22, 2018, as Instrument No. 2018000102019 of Official Records. [Company will delete this exception upon receipt of evidence that this assessment has been paid] 39. This item has been intentionally deleted. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 5 of 20 PRO FORMA PRO FORMA PRO FORMA PROFORMA , Jt First Am erican File No. NCS-1225375-SA1 EXHIBIT A Policy Number: 1225375 Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) The Land referred to herein below in situated in the County of Orange, State of California, and is described as follows: LOTS 11, 12 AND 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 6 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA ~ First Am erica n „ J MINERALS AND OTHER SUBSURFACE SUBSTANCES - IMPROVEMENTS ENDORSEMENT Issued by First American Title Insurance Company Attached to Policy No.: 1225375 File No.: NCS-1225375-SA1 1. The insurance provided by this endorsement is subject to the exclusion in Section 4 of this endorsement; and the Exclusions from Coverage, the Exceptions from Coverage contained in Schedule B, and the Conditions in the Policy. 2. For purposes of this endorsement only, "Improvement" means a building, structure located on the surface of the Land, and any paved road, walkway, parking area, driveway, or curb, affixed to the Land at Date of Policy and that by law constitutes real property, but excluding any crops, landscaping, lawn, shrubbery, or trees. 3. The Company insures against loss or damage sustained by the Insured by reason of the enforced removal or alteration of any Improvement, resulting from the future exercise of any right existing at Date of Policy to use the surface of the Land for the extraction or development of minerals or any other subsurface substances excepted from the description of the Land or excepted in Schedule B. 4. This endorsement does not insure against loss or damage (and the Company will not pay costs, attorneys' fees, or expenses) resulting from: contamination, explosion, fire, flooding, vibration, fracturing, earthquake or subsidence; b. negligence by a person or an Entity exercising a right to extract or develop minerals or other subsurface substances; or c. the exercise of the rights described in (None).* *Instructional note: identify the interest excepted from the description of the Land in Schedule A or excepted in Schedule B that you intend to exclude from this coverage. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2012 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50-10827 (7-1-14) Page 7 of 20 ALTA 35.1-06 Minerals and Other Subsurface Substances - Improvements (4-2- 12) Technical Corrections 8-1-16 PRO FORL PRO FORMA PRO FORMA PRO FORMA ;, .M*," ~ First Am erica n „ J WATER - IMPROVEMENTS ENDORSEMENT Issued by First American Title Insurance Company Attached to Policy No.: 1225375 File No.: NCS-1225375-SA1 1. The insurance provided by this endorsement is subject to the exclusion in Section 4 of this endorsement; and the Exclusions from Coverage, the Exceptions from Coverage contained in Schedule B, and the Conditions in the policy. 2. For purposes of this endorsement only, "Improvement" means a building, structure located on the surface of the Land, and any paved road, walkway, parking area, driveway, or curb, affixed to the Land at Date of Policy and that by law constitutes real property, but excluding any crops, landscaping, lawn, shrubbery, or trees. 3. The Company insures against loss or damage sustained by the Insured by reason of the enforced removal or alteration of any Improvement, resulting from the future exercise of any right existing at Date of Policy to use the surface of the Land for the extraction or development of water excepted from the description of the Land or excepted in Schedule B. 4. This endorsement does not insure against loss or damage (and the Company will not pay costs, attorneys' fees, or expenses) resulting from: a. contamination, explosion, fire, flooding, vibration, fracturing, earthquake or subsidence; b. negligence by a person or an Entity exercising a right to extract or develop water; or c. the exercise of the rights described in None. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. Date: * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. Form 50-10950 (9-2-16) Page 8 of 20 ALTA 41.1-06 Water - Improvements (12-2-13) CLTA 143.1-06 PRO FORMA PRO FORMA PRO FORMA PRO FORMA ~ First American Endorsement 100.29 Minerals, Surface Damage - Owner/Lender (08-04-2022) CLTA 100.29 ENDORSEMENT - MINERALS, SURFACE DAMAGE This endorsement is issued as part of Policy Number 1225375 issued by FIRST AMERICAN TITLE INSURANCE COMPANY File No.: NCS-1225375-SA1 The Company insures against loss or damage sustained by the Insured by reason of damage to existing improvements, including lawns, shrubbery or trees, resulting from the future exercise of a right to use the surface of the Land for the extraction or development of minerals or any other subsurface substances excepted from the description of the Land or referred to in a Schedule B exception. This endorsement does not insure against loss or damage (and the Company will not pay costs, attorneys' fees, or expenses) resulting from: a. contamination, explosion, fire, flooding, vibration, fracturing, earthquake or subsidence; b. negligence by a person or an Entity exercising a right to extract or develop minerals or any other subsurface substances; or c. the exercise of the rights described in . This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. Dated: * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. © California Land Title Association. All Rights Reserved. The use of this Form is restricted to CLTA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Form 50-216200 (9-22-23) Page 9 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA , Jt Firs t Am erican Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) ALTA OWNER'S POLICY OF TITLE INSURANCE issued by FIRST AMERICAN TITLE INSURANCE COMPANY This policy, when issued by the Company with a Policy Number and the Date of Policy, is valid even if this policy or any endorsement to this policy is issued electronically or lacks any signature. Any notice of claim and any other notice or statement in writing required to be given to the Company under this policy must be given to the Company at the address shown in Condition 17. COVERED RISKS SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B, AND THE CONDITIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a Nebraska corporation (the "Company', insures as of the Date of Policy and, to the extent stated in Covered Risks 9 and 10, after the Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of: 1. The Title being vested other than as stated in Schedule A. 2. Any defect in or lien or encumbrance on the Title. Covered Risk 2 includes, but is not limited to, insurance against loss from: a. a defect in the Title caused by: i. forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation; ii. the failure of a person or Entity to have authorized a transfer or conveyance; iii. a document affecting the Title not properly authorized, created, executed, witnessed, sealed, acknowledged, notarized (including by remote online notarization), or delivered; iv. a failure to perform those acts necessary to create a document by electronic means authorized by law; V. a document executed under a falsified, expired, or otherwise invalid power of attorney; vi. a document not properly filed, recorded, or indexed in the Public Records, including the failure to have performed those acts by electronic means authorized by law; vii. a defective judicial or administrative proceeding; or viii. the repudiation of an electronic signature by a person that executed a document because the electronic signature on the document was not valid under applicable electronic transactions law. b. the lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid. C. the effect on the Title of an encumbrance, violation, variation, adverse circumstance, boundary line overlap, or encroachment (including an encroachment of an improvement across the boundary lines of the Land), but only if the encumbrance, * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 10 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA * ~ First American Owner's Policy of Title Insurance } r' California - 2021 v. 01.00 (07-01-2021) violation, variation, adverse circumstance, boundary line overlap, or encroachment would have been disclosed by an accurate and complete land title survey of the Land. 3. Unmarketable Title. 4. No right of access to and from the Land. S. A violation or enforcement of a law, ordinance, permit, or governmental regulation (including those relating to building and zoning), but only to the extent of the violation or enforcement described by the enforcing governmental authority in an Enforcement Notice that identifies a restriction, regulation, or prohibition relating to: a. the occupancy, use, or enjoyment of the Land; b. the character, dimensions, or location of an improvement on the Land; C. the subdivision of the Land; or d. environmental remediation or protection on the Land. 6. An enforcement of a governmental forfeiture, police, regulatory, or national security power, but only to the extent of the enforcement described by the enforcing governmental authority in an Enforcement Notice. 7. An exercise of the power of eminent domain, but only to the extent: a. of the exercise described in an Enforcement Notice; or b. the taking occurred and is binding on a purchaser for value without Knowledge. S. An enforcement of a PACA-PSA Trust, but only to the extent of the enforcement described in an Enforcement Notice. 9. The Title being vested other than as stated in Schedule A, the Title being defective, or the effect of a court order providing an alternative remedy: a. resulting from the avoidance, in whole or in part, of any transfer of all or any part of the Title to the Land or any interest in the Land occurring prior to the transaction vesting the Title because that prior transfer constituted a: i. fraudulent conveyance, fraudulent transfer, or preferential transfer under federal bankruptcy, state insolvency, or similar state or federal creditors' rights law; or ii. voidable transfer under the Uniform Voidable Transactions Act; or b. because the instrument vesting the Title constitutes a preferential transfer under federal bankruptcy, state insolvency, or similar state or federal creditors' rights law by reason of the failure: i. to timely record the instrument vesting the Title in the Public Records after execution and delivery of the instrument to the Insured; or ii. of the recording of the instrument vesting the Title in the Public Records to impart notice of its existence to a purchaser for value or to a judgment or lien creditor. 10. Any defect in or lien or encumbrance on the Title or other matter included in Covered Risks 1 through 9 that has been created or attached or has been filed or recorded in the Public Records subsequent to the Date of Policy and prior to the recording of the deed or other instrument vesting the Title in the Public Records. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 11 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA * ~ First American Owner's Policy of Title Insurance } r' California - 2021 v. 01.00 (07-01-2021) DEFENSE OF COVERED CLAIMS The Company will also pay the costs, attorneys' fees, and expenses incurred in defense of any matter insured against by this policy, but only to the extent provided in the Conditions. FIRST AMERICAN TITLE INSURANCE COMPANY 6)�, — By. By Kenneth D. DeGiorgio, President Lisa W. Cornehl, Secretary * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 12 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA * ~ First American Owner's Policy of Title Insurance } r' California - 2021 v. 01.00 (07-01-2021) EXCLUSIONS FROM COVERAGE The following matters are excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: 1. a. any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) that restricts, regulates, prohibits, or relates to: i. the occupancy, use, or enjoyment of the Land; ii. the character, dimensions, or location of any improvement on the Land; iii. the subdivision of land; or iv. environmental remediation or protection. b. any governmental forfeiture, police, regulatory, or national security power. C. the effect of a violation or enforcement of any matter excluded under Exclusion 1.a. or 1. b. Exclusion 1 does not modify or limit the coverage provided under Covered Risk 5 or 6. 2. Any power of eminent domain. Exclusion 2 does not modify or limit the coverage provided under Covered Risk 7. 3. Any defect, lien, encumbrance, adverse claim, or other matter: a. created, suffered, assumed, or agreed to by the Insured Claimant; b. not Known to the Company, not recorded in the Public Records at the Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; C. resulting in no loss or damage to the Insured Claimant; d. attaching or created subsequent to the Date of Policy (Exclusion 3.d. does not modify or limit the coverage provided under Covered Risk 9 or 10); or e. resulting in loss or damage that would not have been sustained if consideration sufficient to qualify the Insured named in Schedule A as a bona fide purchaser had been given for the Title at the Date of Policy. 4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights law, that the transaction vesting the Title as shown in Schedule A is a: a. fraudulent conveyance or fraudulent transfer; b. voidable transfer under the Uniform Voidable Transactions Act; or C. preferential transfer: i. to the extent the instrument of transfer vesting the Title as shown in Schedule A is not a transfer made as a contemporaneous exchange for new value; or ii. for any other reason not stated in Covered Risk 9.b. S. Any claim of a PACA-PSA Trust. Exclusion 5 does not modify or limit the coverage provided under Covered Risk 8. 6. Any lien on the Title for real estate taxes or assessments imposed or collected by a governmental authority that becomes due and payable after the Date of Policy. Exclusion 6 does not modify or limit the coverage provided under Covered Risk 2.b. 7. Any discrepancy in the quantity of the area, square footage, or acreage of the Land or of any improvement to the Land. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 13 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA , Jt First Am erican CONDITIONS Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) I. DEFINITION OF TERMS In this policy, the following terms have the meanings given to them below. Any defined term includes both the singular and the plural, as the context requires: a. "Affiliate": An Entity: i. that is wholly owned by the Insured; ii. that wholly owns the Insured; or iii. if that Entity and the Insured are both wholly owned by the same person or entity. b. "Amount of Insurance": The Amount of Insurance stated in Schedule A, as may be increased by Condition 8.d. or decreased by Condition 10 or 11; or increased or decreased by endorsements to this policy. C. "Date of Policy": The Date of Policy stated in Schedule A. d. "Discriminatory Covenant": Any covenant, condition, restriction, or limitation that is unenforceable under applicable law because it illegally discriminates against a class of individuals based on personal characteristics such as race, color, religion, sex, sexual orientation, gender identity, familial status, disability, national origin, or other legally protected class. e. "Enforcement Notice": A document recorded in the Public Records that describes any part of the Land and: i. is issued by a governmental agency that identifies a violation or enforcement of a law, ordinance, permit, or governmental regulation; ii. is issued by a holder of the power of eminent domain or a governmental agency that identifies the exercise of a governmental power; or iii. asserts a right to enforce a PACA PSA Trust. f. "Entity": A corporation, partnership, trust, limited liability company, or other entity authorized by law to own title to real property in the State where the Land is located. g. "Insured": i. (a). The Insured named in Item 1 of Schedule A; (b). the successor to the Title of an Insured by operation of law as distinguished from purchase, including heirs, devisees, survivors, personal representatives, or next of kin; (c). the successor to the Title of an Insured resulting from dissolution, merger, consolidation, distribution, or reorganization; (d). the successor to the Title of an Insured resulting from its conversion to another kind of Entity; or (e). the grantee of an Insured under a deed or other instrument transferring the Title, if the grantee is: (1). an Affiliate; (2). a trustee or beneficiary of a trust created by a written instrument established for estate planning purposes by an Insured; (3). a spouse who receives the Title because of a dissolution of marriage; (4). a transferee by a transfer effective on the death of an Insured as authorized by law; or (5). another Insured named in Item 1 of Schedule A. ii. The Company reserves all rights and defenses as to any successor or grantee that the Company would have had against any predecessor Insured. h. "Insured Claimant": An Insured claiming loss or damage arising under this policy. i. "Knowledge" or "Known": Actual knowledge or actual notice, but not constructive notice imparted by the Public Records. j. "Land": The land described in Item 4 of Schedule A and improvements located on that land at the Date of Policy that by State law constitute real property. The term "Land" does not include any property beyond that described in Schedule A, nor any right, title, interest, estate, or easement in * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 14 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA * ~ First American Owner's Policy of Title Insurance } r' California - 2021 v. 01.00 (07-01-2021) any abutting street, road, avenue, alley, lane, right-of-way, body of water, or waterway, but does not modify or limit the extent that a right of access to and from the Land is insured by this policy. k. 'Mortgage": A mortgage, deed of trust, trust deed, security deed, or other real property security instrument, including one evidenced by electronic means authorized by law. I. "PACA-PSA Trust": A trust under the federal Perishable Agricultural Commodities Act or the federal Packers and Stockyards Act or a similar State or federal law. M. 'Public Records": The recording or filing system established under State statutes in effect at the Date of Policy under which a document must be recorded or filed to impart constructive notice of matters relating to the Title to a purchaser for value without Knowledge. The term "Public Records" does not include any other recording or filing system, including any pertaining to environmental remediation or protection, planning, permitting, zoning, licensing, building, health, public safety, or national security matters. n. 'State": The state or commonwealth of the United States within whose exterior boundaries the Land is located. The term "State" also includes the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, and Guam. o. 'Title": The estate or interest in the Land identified in Item 2 of Schedule A. P. 'Unmarketable Title": The Title affected by an alleged or apparent matter that would permit a prospective purchaser or lessee of the Title or a lender on the Title to be released from the obligation to purchase, lease, or lend if there is a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF COVERAGE This policy continues as of the Date of Policy in favor of an Insured, so long as the Insured: a. retains an estate or interest in the Land; b. owns an obligation secured by a purchase money Mortgage given by a purchaser from the Insured; or C. has liability for warranties given by the Insured in any transfer or conveyance of the Insured's Title. Except as provided in Condition 2, this policy terminates and ceases to have any further force or effect after the Insured conveys the Title. This policy does not continue in force or effect in favor of any person or entity that is not the Insured and acquires the Title or an obligation secured by a purchase money Mortgage given to the Insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT The Insured must notify the Company promptly in writing if the Insured has Knowledge of: a. any litigation or other matter for which the Company may be liable under this policy; or b. any rejection of the Title as Unmarketable Title. If the Company is prejudiced by the failure of the Insured Claimant to provide prompt notice, the Company's liability to the Insured Claimant under this policy is reduced to the extent of the prejudice. 4. PROOF OF LOSS The Company may, at its option, require as a condition of payment that the Insured Claimant furnish a signed proof of loss. The proof of loss must describe the defect, lien, encumbrance, adverse claim, or other matter insured against by this policy that constitutes the basis of loss or damage and must state, to the extent possible, the basis of calculating the amount of the loss or damage. 5. DEFENSE AND PROSECUTION OF ACTIONS a. Upon written request by the Insured and subject to the options contained in Condition 7, the Company, at its own cost and without unreasonable delay, will provide for the defense of an Insured in litigation in which any third party asserts a claim covered by this policy adverse to the Insured. This obligation is limited to only those stated causes of action alleging matters insured against by this policy. The Company has the right to select counsel of its choice (subject to the * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 15 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA * ~ First American Owner's Policy of Title Insurance } r' California - 2021 v. 01.00 (07-01-2021) right of the Insured to object for reasonable cause) to represent the Insured as to those covered causes of action. The Company is not liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs, or expenses incurred by the Insured in the defense of any cause of action that alleges matters not insured against by this policy. b. The Company has the right, in addition to the options contained in Condition 7, at its own cost, to institute and prosecute any action or proceeding or to do any other act that, in its opinion, may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured. The Company may take any appropriate action under the terms of this policy, whether or not it is liable to the Insured. The Company's exercise of these rights is not an admission of liability or waiver of any provision of this policy. If the Company exercises its rights under Condition 5.b., it must do so diligently. C. When the Company brings an action or asserts a defense as required or permitted by this policy, the Company may pursue the litigation to a final determination by a court having jurisdiction. The Company reserves the right, in its sole discretion, to appeal any adverse judgment or order. 6. DUTY OF INSURED CLAIMANT TO COOPERATE a. When this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding and any appeals, the Insured will secure to the Company the right to prosecute or provide defense in the action or proceeding, including the right to use, at its option, the name of the Insured for this purpose. When requested by the Company, the Insured, at the Company's expense, must give the Company all reasonable aid in: i. securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement; and ii. any other lawful act that in the opinion of the Company may be necessary or desirable to establish the Title or any other matter, as insured. If the Company is prejudiced by any failure of the Insured to furnish the required cooperation, the Company's liability and obligations to the Insured under this policy terminate, including any obligation to defend, prosecute, or continue any litigation, regarding the matter requiring such cooperation. b. The Company may reasonably require the Insured Claimant to submit to examination under oath by any authorized representative of the Company and to produce for examination, inspection, and copying, at such reasonable times and places as may be designated by the authorized representative of the Company, all records, in whatever medium maintained, including books, ledgers, checks, memoranda, correspondence, reports, e-mails, disks, tapes, and videos, whether bearing a date before or after the Date of Policy, that reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Insured Claimant must grant its permission, in writing, for any authorized representative of the Company to examine, inspect, and copy all the records in the custody or control of a third party that reasonably pertain to the loss or damage. No information designated in writing as confidential by the Insured Claimant provided to the Company pursuant to Condition 6 will be later disclosed to others unless, in the reasonable judgment of the Company, disclosure is necessary in the administration of the claim or required by law. Any failure of the Insured Claimant to submit for examination under oath, produce any reasonably requested information, or grant permission to secure reasonably necessary information from third parties as required in Condition 6.b., unless prohibited by law, terminates any liability of the Company under this policy as to that claim. 7. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY In case of a claim under this policy, the Company has the following additional options: a. To Pay or Tender Payment of the Amount of Insurance To pay or tender payment of the Amount of Insurance under this policy. In addition, the Company will pay any costs, attorneys' fees, and expenses incurred by the Insured Claimant that were * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 16 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA * ~ First American Owner's Policy of Title Insurance } r' California - 2021 v. 01.00 (07-01-2021) authorized by the Company up to the time of payment or tender of payment and that the Company is obligated to pay. Upon the exercise by the Company of this option provided for in Condition 7.a., the Company's liability and obligations to the Insured under this policy terminate, including any obligation to defend, prosecute, or continue any litigation. To Pay or Otherwise Settle with Parties other than the Insured or with the Insured Claimant i. To pay or otherwise settle with parties other than the Insured for or in the name of the Insured Claimant. In addition, the Company will pay any costs, attorneys' fees, and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of payment and that the Company is obligated to pay; or ii. To pay or otherwise settle with the Insured Claimant the loss or damage provided for under this policy. In addition, the Company will pay any costs, attorneys' fees, and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of payment and that the Company is obligated to pay. Upon the exercise by the Company of either option provided for in Condition 7.b., the Company's liability and obligations to the Insured under this policy for the claimed loss or damage terminate, including any obligation to defend, prosecute, or continue any litigation. 8. CONTRACT OF INDEMNITY; DETERMINATION AND EXTENT OF LIABILITY This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by an Insured Claimant who has suffered loss or damage by reason of matters insured against by this policy. This policy is not an abstract of the Title, report of the condition of the Title, legal opinion, opinion of the Title, or other representation of the status of the Title. All claims asserted under this policy are based in contract and are restricted to the terms and provisions of this policy. The Company is not liable for any claim alleging negligence or negligent misrepresentation arising from or in connection with this policy or the determination of the insurability of the Title. a. The extent of liability of the Company for loss or damage under this policy does not exceed the lesser of: i. the Amount of Insurance; or ii. the difference between the fair market value of the Title, as insured, and the fair market value of the Title subject to the matter insured against by this policy. b. Except as provided in Condition 8.c. or 8.d., the fair market value of the Title in Condition 8.a.ii. is calculated using the date the Insured discovers the defect, lien, encumbrance, adverse claim, or other matter insured against by this policy. C. If, at the Date of Policy, the Title to all of the Land is void by reason of a matter insured against by this policy, then the Insured Claimant may, by written notice given to the Company, elect to use the Date of Policy as the date for calculating the fair market value of the Title in Condition 8.a.ii. d. If the Company pursues its rights under Condition 5.b. and is unsuccessful in establishing the Title, as insured: i. the Amount of Insurance will be increased by 15%; and ii. the Insured Claimant may, by written notice given to the Company, elect, as an alternative to the dates set forth in Condition 8.b. or, if it applies, 8.c., to use either the date the settlement, action, proceeding, or other act described in Condition 5.b. is concluded or the date the notice of claim required by Condition 3 is received by the Company as the date for calculating the fair market value of the Title in Condition 8.a.ii. e. In addition to the extent of liability for loss or damage under Conditions 8.a. and 8.d., the Company will also pay the costs, attorneys' fees, and expenses incurred in accordance with Conditions 5 and 7. 9. LIMITATION OF LIABILITY a. The Company fully performs its obligations and is not liable for any loss or damage caused to the Insured if the Company accomplishes any of the following in a reasonable manner: * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 17 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA , Jt First Am erican Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) i. removes the alleged defect, lien, encumbrance, adverse claim, or other matter; ii. cures the lack of a right of access to and from the Land; or iii. cures the claim of Unmarketable Title, all as insured. The Company may do so by any method, including litigation and the completion of any appeals. b. The Company is not liable for loss or damage arising out of any litigation, including litigation by the Company or with the Company's consent, until a State or federal court having jurisdiction makes a final, non -appealable determination adverse to the Title. C. The Company is not liable for loss or damage to the Insured for liability voluntarily assumed by the Insured in settling any claim or suit without the prior written consent of the Company. d. The Company is not liable for the content of the Transaction Identification Data, if any. 10. REDUCTION OR TERMINATION OF INSURANCE All payments under this policy, except payments made for costs, attorneys' fees, and expenses, reduce the Amount of Insurance by the amount of the payment. 11. LIABILITY NONCUMULATIVE The Amount of Insurance will be reduced by any amount the Company pays under any policy insuring a Mortgage to which exception is taken in Schedule B or to which the Insured has agreed, assumed, or taken subject, or which is executed by an Insured after the Date of Policy and which is a charge or lien on the Title, and the amount so paid will be deemed a payment to the Insured under this policy. 12. PAYMENT OF LOSS When liability and the extent of loss or damage are determined in accordance with the Conditions, the Company will pay the loss or damage within 30 days. 13. COMPANY'S RECOVERY AND SUBROGATION RIGHTS UPON SETTLEMENT AND PAYMENT a. If the Company settles and pays a claim under this policy, it is subrogated and entitled to the rights and remedies of the Insured Claimant in the Title and all other rights and remedies in respect to the claim that the Insured Claimant has against any person, entity, or property to the fullest extent permitted by law, but limited to the amount of any loss, costs, attorneys' fees, and expenses paid by the Company. If requested by the Company, the Insured Claimant must execute documents to transfer these rights and remedies to the Company. The Insured Claimant permits the Company to sue, compromise, or settle in the name of the Insured Claimant and to use the name of the Insured Claimant in any transaction or litigation involving these rights and remedies. b. If a payment on account of a claim does not fully cover the loss of the Insured Claimant, the Company defers the exercise of its subrogation right until after the Insured Claimant fully recovers its loss. C. The Company's subrogation right includes the Insured's rights to indemnity, guaranty, warranty, insurance policy, or bond, despite any provision in those instruments that addresses recovery or subrogation rights. 14. POLICY ENTIRE CONTRACT a. This policy together with all endorsements, if any, issued by the Company is the entire policy and contract between the Insured and the Company. In interpreting any provision of this policy, this policy will be construed as a whole. This policy and any endorsement to this policy may be evidenced by electronic means authorized by law. b. Any amendment of this policy must be by a written endorsement issued by the Company. To the extent any term or provision of an endorsement is inconsistent with any term or provision of this policy, the term or provision of the endorsement controls. Unless the endorsement expressly states, it does not: i. modify any prior endorsement, * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 18 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA First Am erican Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) ii. extend the Date of Policy, iii. insure against loss or damage exceeding the Amount of Insurance, or iv. increase the Amount of Insurance. 15. SEVERABILITY In the event any provision of this policy, in whole or in part, is held invalid or unenforceable under applicable law, this policy will be deemed not to include that provision or the part held to be invalid, but all other provisions will remain in full force and effect. 16. CHOICE OF LAW AND CHOICE OF FORUM a. Choice of Law The Company has underwritten the risks covered by this policy and determined the premium charged in reliance upon the State law affecting interests in real property and the State law applicable to the interpretation, rights, remedies, or enforcement of policies of title insurance of the State where the Land is located. The State law of the State where the Land is located, or to the extent it controls, federal law, will determine the validity of claims against the Title and the interpretation and enforcement of the terms of this policy, without regard to conflicts of law principles to determine the applicable law. b. Choice of Forum Any litigation or other proceeding brought by the Insured against the Company must be filed only in a State or federal court having jurisdiction. 17. NOTICES Any notice of claim and any other notice or statement in writing required to be given to the Company under this policy must be given to the Company at: First American Title Insurance Company, Attn: Claims National Intake Center, 1 First American Way, Santa Ana, California 92707. Phone: 888-632- 1642 (claims.nic@firstam.com). 18. CLASS ACTION ALL CLAIMS AND DISPUTES ARISING OUT OF OR RELATING TO THIS POLICY, INCLUDING ANY SERVICE OR OTHER MATTER IN CONNECTION WITH ISSUING THIS POLICY, ANY BREACH OF A POLICY PROVISION, OR ANY OTHER CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THE TRANSACTION GIVING RISE TO THIS POLICY, MUST BE BROUGHT IN AN INDIVIDUAL CAPACITY. NO PARTY MAY SERVE AS PLAINTIFF, CLASS MEMBER, OR PARTICIPANT IN ANY CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. 19. ARBITRATION a. All claims and disputes arising out of or relating to this policy, including any service or other matter in connection with issuing this policy, any breach of a policy provision, or any other claim or dispute arising out of or relating to the transaction giving rise to this policy, may be resolved by arbitration. If the Amount of Insurance is $2,000,000 or less, any claim or dispute may be submitted to binding arbitration at the election of either the Company or the Insured. If the Amount of Insurance is greater than $2,000,000, any claim or dispute may be submitted to binding arbitration only when agreed to by both the Company and the Insured. Arbitration must be conducted pursuant to the Title Insurance Arbitration Rules of the American Land Title Association ("ALTA Rules"). The ALTA Rules are available online at www.alta.org/arbitration. The ALTA Rules incorporate, as appropriate to a particular dispute, the Consumer Arbitration Rules and Commercial Arbitration Rules of the American Arbitration Association ("AAA Rules"). The AAA Rules are available online at www.adr.org. b. ALL CLAIMS AND DISPUTES MUST BE BROUGHT IN AN INDIVIDUAL CAPACITY. NO PARTY MAY SERVE AS PLAINTIFF, CLASS MEMBER, OR PARTICIPANT IN ANY CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING IN ANY ARBITRATION GOVERNED BY CONDITION * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 19 of 20 PRO FORMA PRO FORMA PRO FORMA PRO FORMA , Jt First Am erican Owner's Policy of Title Insurance California - 2021 v. 01.00 (07-01-2021) 19. The arbitrator does not have authority to conduct any class action arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstance. C. If there is a final judicial determination that a request for particular relief cannot be arbitrated in accordance with this Condition 19, then only that request for particular relief may be brought in court. All other requests for relief remain subject to this Condition 19. d. The Company will pay all AAA filing, administration, and arbitrator fees of the consumer when the arbitration seeks relief of $100,000 or less. Other fees will be allocated in accordance with the applicable AAA Rules. The results of arbitration will be binding upon the parties. The arbitrator may consider, but is not bound by, rulings in prior arbitrations involving different parties. The arbitrator is bound by rulings in prior arbitrations involving the same parties to the extent required by law. The arbitrator must issue a written decision sufficient to explain the findings and conclusions on which the award is based. Judgment upon the award rendered by the arbitrator may be entered in any State or federal court having jurisdiction. * Copyright 2025 First American Financial Corporation. All rights reserved. All information, data, and material created or compiled by or on behalf of First American Financial Corporation is restricted and may not be copied or used for derivative products/services without the prior express written permission of First American Financial Corporation. ** Copyright 2021 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 50125506 (5-24-22) Page 20 of 20 PRO FORMA PRO FORMA ATTACHMENT 5A FORM OF CITY ESTOPPEL [Date] [Transferee] [Address] Attn: Re: [Developer/Development Name] Ladies and Gentlemen: The undersigned is writing this letter to you ("Transferee") regarding that certain residential development project ("Project") that {[has been] [may be]] constructed on the land legally described on Exhibit A attached hereto and incorporated herein by this reference ("Real Property"). The City of Tustin, a municipal corporation of the State of California ("City"), and Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer"), entered into that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 20_ {if amended, insert relevant amendment information) ("DDA"), relating to the conveyance of the Real Property by the City to Developer and the subsequent development thereon of the Affordable Project and the Market Rate Project, all as more particularly set forth therein. All initially capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the DDA. [{If Property has been conveyed) The City has conveyed the Real Property to Developer pursuant to Quitclaim Deed for Portions of Disposition Parcels 2B, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 ("Quitclaim Deed') with respect to the Real Property dated 20_ recorded in the Official Records on 20 as Instrument No. , pursuant to which the City conveyed to Developer the fee title to the Real Property, subject to certain restrictions and limitations set forth in the Quitclaim Deed.] [{If Property has been conveyed or any of the following have been executed:} The City has executed the following documents (each executed or acknowledged and accepted by Developer) that were recorded against the Real Property prior to conveyance to Developer: 1. Memorandum of Tustin Legacy Disposition and Development Agreement for Portions of Disposition Parcels 2C and 8 ("Memorandum of DDA'), dated , 20 , which was recorded in the Official Records against the Real Property on , 20)_ as Instrument No. , and Tustin Irvine Co DDA Att 5A City Estoppel Attachment 5A City of Tustin/Irvine Co 12.12.24 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 provided record notice of the DDA. {If amended, insert relevant amendment information.) 2. Development Agreement ("DA ") dated , 20_, which was recorded in the Official Records against the Real Property and certain additional property on , 20)_ as Instrument No. . {If amended, insert relevant amendment information.) 3. Regulatory Agreement and Declaration of Restrictive Covenants ("Affordable Housing Declaration') dated , 20 and recorded in the Official Records against the Real Property and certain additional property on , 20 as Instrument No. {If amended, insert relevant amendment information.) 4. Public Access Covenant and Declaration of Easements and Dedications and Irrevocable Offer to Dedicate ("Public Access Covenant") dated ,20 and recorded in the Official Records against the Real Property and certain additional property on , 20 as Instrument No. {If amended, insert relevant amendment information.) 5. Declaration of Special Restrictions for Portions of Disposition Areas 2B, 2C and 8 {if amended, insert relevant amendment information) ("Special Restrictions'), dated , 20_, recorded in the Office of the County Recorder, Orange County, California ("Official Records') against the Real Property on , 20 as Instrument No. , which includes, among other matters, certain requirements regarding the use and maintenance of the Real Property and sets forth certain provisions of the DDA which survive the issuance of a Certificate of Compliance with respect to the Project. In addition, the City and Developer have entered into a Landscape Installation and Maintenance Agreement ("Landscape Installation and Maintenance Agreement') dated , 20 and recorded in the Official Records against the Real Property and certain additional property on 20 as Instrument No. {If amended, insert relevant amendment information.) The DDA, the Memorandum of DDA, the DA, the Affordable Housing Declaration, the Public Access Restrictions, the Special Restrictions, the Quitclaim Deed and the Landscape Installation and Maintenance Agreement are collectively referred to herein as the "Property Documents." You have informed the undersigned City that Developer intends to Transfer its interest in the Transferable Interests or a direct or indirect interest therein to Transferee on or around the date of this letter ("Transaction"). By its execution of this letter, the City hereby confirms to Transferee that: Tustin Irvine Co DDA Att 5A City Estoppel Attachment 5A City of Tustin/Irvine Co 12.12.24 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 1. Except as set forth on Schedule 1 to this letter, the Property Documents are in full force and effect and have not been modified, supplemented or amended, whether orally or in writing, and have not been assigned or otherwise transferred by the City to any other person or entity. 2. To City's Knowledge, except as set forth on Schedule 2 to this letter: (a) there are no defaults of Developer (including, without limitation, any Potential Defaults or Material Defaults) under the DDA or any defaults under the Property Documents nor any facts which now, or after the giving of notice or the passage of time, or both, would constitute a default (including, without limitation, a Potential Default or Material Default) under the DDA or a default under any of the Property Documents or which would entitle the City to exercise any of its rights or remedies under any of the Property Documents, including, without limitation, its Right of Reversion or Right of Purchase pursuant to the DDA; and (b) the City has no current claim of breach, counterclaim, lien or offset presently existing under any of the Property Documents. The undersigned acknowledges that Transferee may rely upon this letter in entering into the proposed Transaction. This letter is written in connection only with the proposed Transaction and may be relied upon only by Transferee as to the matters addressed herein. This letter may not be relied upon by any other party or for any other purpose without the express written consent of the City. This certificate shall be binding upon the City and its successors and assigns. In no event shall the individual executing this Estoppel on behalf of the City or any of the City Representatives have any personal liability hereunder. {Remainder of page is blank; signatures on following page) Tustin Irvine Co DDA Att 5A City Estoppel Attachment 5A City of Tustin/Irvine Co 12.12.24 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 CITY OF TUSTIN Dated: , 20_ By: Aldo E. Schindler, City Manager ATTEST: By: Erica S. Yasuda City Clerk APPROVED AS TO FORM: By: Name: David Kendig City Attorney Tustin Irvine Co DDA Att 5A City Estoppel Attachment 5A City of Tustin/Irvine Co 12.12.24 (HM) FINAL S-1 Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY [see attached] Tustin Irvine Co DDA Att 5A City Estoppel Attachment 5A City of Tustin/Irvine Co 12.12.24 (HM) FINAL Exhibit A Por. Disp. Areas 213, 2C and 8 SCHEDULEI MODIFICATIONS, SUPPLEMENTS OR AMENDMENTS TO PROPERTY DOCUMENTS [enter "None" if there are no qualifications] Tustin Irvine Co DDA Att 5A City Estoppel Attachment 5A City of Tustin/Irvine Co. 12.12.24 (HM) FINAL Schedule 1 Por. Disp. Areas 213, 2C and 8 SCHEDULE 2 QUALIFICATIONS TO MATTERS CONFIRMED IN ESTOPPEL [enter "None " if there are no qualifications] Tustin Irvine Co DDA Att 5A City Estoppel Attachment 5A City of Tustin/Irvine Co. 12.12.24 (HM) FINAL Schedule 2 Por. Disp. Areas 2B, 2C and 8 ATTACHMENT 5B FORM OF CITY ESTOPPEL [Date] [Proposed Lessee Under Approved Ground Lease] [Address] Attn: Re: [Developer/Development Name] Ladies and Gentlemen: The undersigned is writing this letter to you ("Ground Lessee") regarding that certain residential development project ("Project") that {[has been] [may be]) constructed on the land legally described on Exhibit A attached hereto and incorporated herein by this reference ("Real Property"). The City of Tustin, a municipal corporation of the State of California ("City"), and Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer"), entered into that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 20_ {if amended, insert relevant amendment information) ("DDA"), relating to the conveyance of the Real Property by the City to Developer and the subsequent development thereon of the Affordable Project and the Market Rate Project, all as more particularly set forth therein. All initially capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the DDA. [{If Property has been conveyed) The City has conveyed the Real Property to Developer pursuant to Quitclaim Deed for Portions of Disposition Parcels 2B, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 ("Quitclaim Deed') with respect to the Real Property dated 20_ recorded in the Official Records on , 20_ as Instrument No. , pursuant to which the City conveyed to Developer the fee title to the Real Property, subject to certain restrictions and limitations set forth in the Quitclaim Deed.] [{If Property has been conveyed or any of the following have been executed:} The City has executed the following documents (each executed or acknowledged and accepted by Developer) that were recorded against the Real Property prior to conveyance to Developer: 1. Memorandum of Tustin Legacy Disposition and Development Agreement for Portions of Disposition Parcels 2C and 8 ("Memorandum of DDA'), dated , 20 , which was recorded in the Official Records against the Real Property on , 20)_ as Instrument No. , and Tustin Irvine Co DDA Att 5B City Estoppel 02- Attachment 5B City of Tustin/Irvine Co 11-25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 provided record notice of the DDA. {If amended, insert relevant amendment information.) 2. Development Agreement ("DA ") dated , 20_, which was recorded in the Official Records against the Real Property and certain additional property on , 20)_ as Instrument No. . {If amended, insert relevant amendment information.) 3. Regulatory Agreement and Declaration of Restrictive Covenants ("Affordable Housing Declaration') dated , 20 and recorded in the Official Records against the Real Property and certain additional property on , 20 as Instrument No. {If amended, insert relevant amendment information.) 4. Public Access Covenant and Declaration of Easements and Dedications and Irrevocable Offer to Dedicate ("Public Access Covenant") dated ,20 and recorded in the Official Records against the Real Property and certain additional property on , 20 as Instrument No. {If amended, insert relevant amendment information.) 5. Declaration of Special Restrictions for Portions of Disposition Areas 2B, 2C and 8 {if amended, insert relevant amendment information) ("Special Restrictions'), dated , 20_, recorded in the Office of the County Recorder, Orange County, California ("Official Records') against the Real Property on , 20 as Instrument No. , which includes, among other matters, certain requirements regarding the use and maintenance of the Real Property and sets forth certain provisions of the DDA which survive the issuance of a Certificate of Compliance with respect to the Project. In addition, the City and Developer have entered into a Landscape Installation and Maintenance Agreement ("Landscape Installation and Maintenance Agreement') dated , 20 and recorded in the Official Records against the Real Property and certain additional property on 20 as Instrument No. {If amended, insert relevant amendment information.) The DDA, the Memorandum of DDA, the DA, the Affordable Housing Declaration, the Public Access Restrictions, the Special Restrictions, the Quitclaim Deed and the Landscape Installation and Maintenance Agreement are collectively referred to herein as the "Property Documents." You have informed the undersigned City that Developer intends to enter into an Approved Ground Lease for all or a portion of Lot 13 to Ground Lessee on or around the date of this letter ("Transaction"). By its execution of this letter, the City hereby confirms to Ground Lessee that: Tustin Irvine Co DDA Att 513 City Estoppel 02- Attachment 513 City of Tustin/Irvine Co 11-25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 1. Except as set forth on Schedule 1 to this letter, the Property Documents are in full force and effect and have not been modified, supplemented or amended, whether orally or in writing, and have not been assigned or otherwise transferred by the City to any other person or entity. 2. To City's Knowledge, except as set forth on Schedule 2 to this letter: (a) there are no defaults of Developer (including, without limitation, any Potential Defaults or Material Defaults) under the DDA or any defaults under the Property Documents nor any facts which now, or after the giving of notice or the passage of time, or both, would constitute a default (including, without limitation, a Potential Default or Material Default) under the DDA or a default under any of the Property Documents or which would entitle the City to exercise any of its rights or remedies under any of the Property Documents, including, without limitation, its Right of Reversion or Right of Purchase pursuant to the DDA; and (b) the City has no current claim of breach, counterclaim, lien or offset presently existing under any of the Property Documents. The undersigned acknowledges that Ground Lessee, Developer, and any Permitted Mortgagee may rely upon this letter in entering into the proposed Transaction. This letter is written in connection only with the proposed Transaction and may be relied upon only by Ground Lessee as to the matters addressed herein. This letter may not be relied upon by any other party or for any other purpose without the express written consent of the City. This certificate shall be binding upon the City and its successors and assigns. In no event shall the individual executing this Estoppel on behalf of the City or any of the City Representatives have any personal liability hereunder. {Remainder of page is blank; signatures on following page} Tustin Irvine Co DDA Att 5B City Estoppel 02- Attachment 5B City of Tustin/Irvine Co 11-25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 Dated: , 20 ATTEST: By: Erica S. Yasuda City Clerk APPROVED AS TO FORM: By: Name: David Kendig City Attorney CITY OF TUSTIN Aldo E. Schindler, City Manager Tustin Irvine Co DDA Att 513 City Estoppel 02- Attachment 513 City of Tustin/Irvine Co 11-25 (HM) FINAL S-1 Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY [see attached] Tustin Irvine Co DDA Att 5B City Estoppel 02- Attachment 5B City of Tustin/Irvine Co 11-25 (HM) FINAL Exhibit A Por. Disp. Areas 213, 2C and 8 SCHEDULEI MODIFICATIONS, SUPPLEMENTS OR AMENDMENTS TO PROPERTY DOCUMENTS [enter "None" if there are no qualifications] Tustin Irvine Co DDA Att 5B City Estoppel 02- Attachment 5B City of Tustin/Irvine Co. 11-25 (HM) FINAL Schedule 1 Por. Disp. Areas 213, 2C and 8 SCHEDULE 2 QUALIFICATIONS TO MATTERS CONFIRMED IN ESTOPPEL [enter "None " if there are no qualifications] Tustin Irvine Co DDA Att 5B City Estoppel 02- Attachment 5B City of Tustin/Irvine Co. 11-25 (HM) FINAL Schedule 2 Por. Disp. Areas 2B, 2C and 8 ATTACHMENT 6 - PHASING PLAN SRN FRq IrFN� F LOT 13 F AMENITY PEEBLER WA'Y LOT 12 Z m�� �.� LEGEND Q�Q\1 ---- PROPERTY LINE d ® PHASE 1 (BUILDING 1, 2, & 5) c) PHASE 2 SWAIM WAY (BUILDING 3, 4, & 6) LOT 11 \ J � FLIGHT WAY l SCALE: E N G I N E E R I N G 1=250' TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 7 SCHEDULE OF PERFORMANCE Note: References herein made to "DDA" shall mean the Tustin Legacy Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 of which this Attachment is a part. Except as otherwise noted, all capitalized terms within the DDA and the Attachments shall retain the meaning as defined in the DDA. Any dates identified in this attachment are intended to reflect the provisions of the DDA. For purposes of determining any Potential Default or Material Default, Section 14 of the DDA shall apply. In addition, to the extent any of the terms and provisions of this Attachment are inconsistent with or otherwise are in conflict with the terms and provisions of the DDA or the Other Agreements, the DDA or Other Agreements, as applicable, shall control. If authorized pursuant to the terms of the DDA, the dates and time periods set forth in this Schedule of Performance may be extended by Force Majeure Delay. DDA Item Action Responsible Section Party 1. CONVEYANCE OF PROPERTY FROM CITY TO DEVELOPER; AFFORDABLE PROJECT CLOSING DATE A 6.3 Supplemental Within ten (10) Business Days after Developer Title Reports Developer's receipt of any report issued by the Title Company concerning the Property (a "Supplemental Title Report"), Developer shall cause to be provided to the City a copy of such Supplemental Title Report and shall specify in writing Developer's disapproval of any item or exception shown on such Supplemental Title Report not previously included in the Preliminary Report and that is not acceptable to Developer with suggested cure information. Failure of Developer to disapprove an,, item or exception shown on and Supplemental Title Report on or before the expiration of such ten (10) Business Day period shall be deemed to be an approval of the matters set forth in such Supplemental Title Report. Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 1 Por. Disp. Area 213, 2C and 8 DDA Item Action Responsible Section Party B 6.3 Supplemental If the City fails to notify Developer of the City Title Report City's election to remove or cure such Disapproved Exception within ten (10) Business Days after the City's receipt of Developer's notice of disapproval, the City shall be deemed to have elected not to cure such Disapproved Exception. C 6.3 Election to Notification by Developer to City five(5) Developer Business Days after the City's election or Terminate deemed election not to cure an exception Escrow whether Developer elects to terminate Escrow or continue to Closing, provided that Developer's failure to provide the City within said five (5) Business Days with written notice of either Developer's acceptance of such Disapproved Exception or Developer's election to terminate shall constitute Developer's election to terminate Escrow. D 8.7.3.6 CFD 18-01 The City will provide Developer with the City Zone 3 opportunity to review and provide input on all documents and budgets relating to the formation of CFD 18-01 Zone 3, annexation of the Real Property into CFD 18-01 Zone 3 and adoption of the RMA at least thin.) Business Days prior to the date on which the formation, annexation and RMA documents are expected to be submitted for the agenda package related to the formation of CFD 18-01 Zone 3 and adoption of the RMA by the City Council. E 7.2.1.1 Document Not later than two (2) Business Days prior City to Close of Escrow, the City shall have Deliveries by City executed and delivered to Escrow Holder the documents specified in this Section. Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 2 Por. Disp. Area 213, 2C and 8 DDA Item Action Responsible Section Party F 4.3.3, Deposit into Not later than one (1) Business Day prior to Developer Close of Escrow. 7.2.2.1 Escrow of Developer Closing Payment and other costs payable by Developer at Close of Escrow G 7.2.2.2 Document Not later than two (2) Business Days prior Developer to Close of Escrow, Developer shall have Deliveries by Developer executed and delivered to Escrow Holder the documents specified in this Section. H 7.3, Statement of Escrow Holder shall have delivered at least Escrow 7.4.5 Costs; seven (7) Business Days prior to the Close Holder, City of Escrow a statement of costs to each Party Prorations and and at least two (2) Business Days prior to Developer the Close of Escrow each of the Parties shall have approved such statement as being consistent with the provisions of Section 7.4 and A copy of the schedule of prorations as agreed upon by Developer and the City shall be delivered to Escrow Holder at least three (3) Business Days prior to the Close of Escrow. I 7.1.1 Close of Twenty (20) Business Days following the City and satisfaction or waiver by Developer of the Escrow Developer Developer Closing Conditions set forth in Sections 7.2.1.4 through 7.2.1.8 and Section 7.2.1.10 and satisfaction or waiver by the City of the City Closing Conditions set forth in Sections 7.2.2.3 through 7.2.2.13 and 7.2.2.15, subject to the advance notice requirement in Section 7.1.1 and the Outside Closing Date and all subject to the more specific terms in the DDA. Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 3 Por. Disp. Area 213, 2C and 8 DDA Item Action Responsible Section Party J 4.3.1; Payment of Developer may elect to extend the Closing Developer 7.1.2 Additional Date for the period described in Section Purchase Price 7.1.2 by delivering to Escrow the Additional Deposit Purchase Price Deposit and by providing to City the notice required by Section 7.1.2.2, in each case on or before March 31, 2026. K 7.1,2, Outside April 30, 2026, subject to extensions City and 7.1.3, Closing Date pursuant to Sections 7.1.2.1, 7.1.3 and Developer 15.1.1 15.1.1 (not subject t to payment of Additional Purchase Price Deposit) and, with payment of Additional Purchase Price Deposit only,. pursuant to Section 7.1.2.2. L 7.4.5 Prorations Any prorations not determined or not agreed Developer Following upon as of the Close of Escrow shall be paid and City Closing by Developer to the City, or by the City to Developer, as the case may be, in cash as soon as practicable following the Close of Escrow, but in no event later than sixty (60) calendar days after the Close of Escrow. M 14.3.1 Failure to Within five (5) Business Days following a Developer termination of this Agreement occurring Close Escrow prior to the Close of Escrow, Developer and Termination of shall use commercially reasonable efforts to DDA return to the City all written Due Diligence Information in Developer's possession. Developer's obligation to return Due Diligence Information to the City is without representation or warranty of any kind by Developer. N 4.7.1 Affordable September 29, 2028 Developer/ Project Outside Affordable Date, being the Housing outside date by Developer which either (a) the Affordable Project Closing Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 4 Por. Disp. Area 213, 2C and 8 DDA Item Action Responsible Section Party for all Parcels within Lot 13 has occurred or (b) the Alternative Affordable Project Development Plan Conditions Precedent have been satisfied. 2. MAPPING, GRADING, INFRASTRUCTURE, UTILITIES, BUILDING PERMITS A 7.2.1.4; Pre -Closing Prior to Close of Escrow, all Pre -Closing Developer/ 7.2.2.3 Entitlements Entitlements shall have been approved by Affordable Approval the City. Housing Developer B 8.8.2 Submittal of Market Rate Project: Developer plans for Not later than two hundred and forty (240) Horizontal calendar days after Effective Date of DDA but in all events prior and as a condition to Improvements (other than Close of Escrow. Landscape Affordable Project: Improvements) Developer/ for approval by Not later than two hundred and fort�(240) Affordable citycalendar days after the Effective Date of the Housing DDA but in all events prior and as a Developer condition to Close of Escrow. C 8.8.2 City issues City shall use good faith efforts to issue City permits within ten (10) Business Days Horizontal following: (a) Community Development Improvement permits Department and Public Works approval of final grading plans; and (b) Developer's (i) payment of all required permit fees, (ii) delivery of any associated subdivision bonds or other security, and (iii) satisfaction of all required conditions of approval Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 5 Por. Disp. Area 213, 2C and 8 associated with grading and Horizontal Improvements. D 8.8.3 City issues With respect to each buildings permit City application for a Building, City shall use building good faith efforts to issue such permit permits within ten (10) Business Days following satisfaction of all of the following: (a) building division approval of building plans; (b) Developer's or Affordable Housing Developer's payment of all required fees associated with applicable building permit; (c) satisfaction of all required conditions of approval associated with applicable building permit; and (d) Recording of the Developer Final Tract Map. E 1.2.3 Recording of Developer Final Tract Map shall have been Developer/ recorded prior to the issuance of a building Developer City permit for the first Building in Phase 1. Final Tract _ _ Map 3. DESIGN APPROVAL A 8.5.5; Basic Concept Developer shall submit any modifications to Developer/ 8.5.6 Plan the Basic Concept Plan to City in writing. Affordable Modification The City, in its Proprietary Capacity only, Housing shall within fifteen (15) Business Da.. s� Developer the City's receipt of such modifications, give written notice of approval or disapproval to Developer. Developer shall make changes in response to the City's notice of disapproval and resubmit such Basic Concept Plan to the City for review and approval in accordance with the provisions of Section 8.5.6 (and in such case the City's review period shall be ten (10) Business Dam. B 8.5.3 Submission of Market Rate Project: Developer Construction Developer shall submit for approval by the Design City in its Governmental Capacity, not later Drawings than December 18, 2025, construction design drawings and related documents Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 6 Por. Disp. Area 213, 2C and 8 conforming to the requirements of the City Code, the Specific Plan and all other Entitlements and conditions of approval for the first building. Affordable Project: Developer/Affordable Affordable Housing Developer shall submit Housing for approval by the City in its Governmental Developer Capacity, not later than December 18, 2025, construction design drawings and related documents conforming to the requirements of the City Code, the Specific Plan and all other Entitlements and conditions of approval for the first building. 4. CONSTRUCTION OF IMPROVEMENTS A 8.3; Start of Market Rate Project: Developer 8.8.1; Grading Work The Grading Work on Lot 11 and Lot 12 13.1.2 shall commence within sizV (60) calendar days following the Close of Escrow. Affordable Project: Developer/ Development Permits for the Grading Work Affordable on Lot 13 shall be obtained within one Housing hundred and eighty (180) calendar days (or Developer such later date as allowed to comply with the so-called TCAC Readiness Deadline) following award to Affordable Housing Developer of adequate tax credits from TCAC but not later than thin.) calendar days following the Affordable Project Outside Date. Grading Work shall commence within thirty (30) calendar days of obtaining the rg ading_permit. Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 7 Por. Disp. Area 213, 2C and 8 B 8.3; Horizontal Market Rate Project: Developer 8.8.2; Improvements Horizontal Improvements for Phase 1 of the 13.1.2 (other than Market Rate Project (Lot 11) shall Grading Work) commence within sixty_(60) calendar days following City and/or IRWD (as applicable) issuance of all necessary Development Permits applicable to the particular Horizontal Improvement for which permits have been issued. Horizontal Improvements for Phase 2 of the Market Rate Project (Lot 12) shall commence on or the date that is forty-eight (48) months from the Close of Escrow. Affordable Project: Development Permit issued by the City for Horizontal Improvements on Lot 13 shall be obtained within one hundred and eighty (180) calendar days (or such later date as allowed to comply with the so-called TCAC Readiness Deadline) followingTCAC Developer/ award of financing, but not later than thirty Affordable (30) calendar days following the Affordable Housing Project Outside Date. Horizontal Improvements shall commence within thirty Developer (30) calendar days of obtaining the Development Permit from the City for such work. C N/A Boundary Market Rate Project: Developer Landscape The public right-of-way improvements Area public within the Boundary Landscape Area and right-of-way Publicly Accessible Common Area improvements Improvements for each Parcel upon which a inclusive of Market Rate Project Building is constructed sidewalks and shall be completed prior to issuance of the landscaping final certificate of occupancy for the first and irrigation Building on such Parcel (except the publicly (including the accessible paseo area adjacent to such street planters) Building shall have been completed only in and the Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 8 Por. Disp. Area 213, 2C and 8 Publicly a manner sufficient to provide Tustin Accessible Building Code required access). Common Area Improvements Affordable Project: Develop er/ The public right-of-way improvements Affordable within the Boundary Landscape Area and Housing Publicly Accessible Common Area Developer Improvements for each Parcel upon which an Affordable Project Building is constructed shall be completed prior to issuance of the final certificate of occupancy for the first Building on such Parcel (except the publicly accessible paseo area adjacent to such Building shall have been completed only in a manner sufficient to provide Tustin Building Code required access). D 8.3; Vertical Market Rate Project: Developer 8.8.3; Improvements Construction of Vertical Improvements for 13.1.2 Construction Buildings containing Market Rate Units in Commence- Phase 1 shall commence by the earlier of (a) one hundred and eighty (180) calendar days ment after Close of Escrow or (b) sixty (60) calendar days after City issuance of all required Development Permits. Construction of Vertical Improvements for Buildings containing Market Rate Units in Phase 2 shall commence no later than the fifth (5th) anniversary of the Close of Escrow. Affordable Project: Construction of Vertical Improvements for Buildings containing Lower Income Units in Phase 1 shall commence upon completion Developer/ Affordable Housing Developer of the grading and utility improvements, but in no event later than March 29, 2029 (i.e., the date that is one hundred and eighty (180) calendar days following the Affordable Project Outside Date). Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 9 Por. Disp. Area 213, 2C and 8 Construction of Vertical Improvements for Buildings containing Lower Income Units in Phase 2 shall commence no later than the fifth (5th) anniversary of the Close of Escrow E 8.11.6 Bonding or Developer or Affordable Housing Developer/ Removal of Developer shall, within thin.) Business Affordable Construction Days followingreceipt eceipt of notice thereof, Housing cause to be removed or bonded against Liens Developer (such bonding to be by the provision of the bonds satisfying California statutory requirements) any Construction Liens. F 8.3; Outside Date Market Rate Project: Developer 8.8.1; Completion of Construction of the Market Rate Project 8.8.2; 8.8.3; 9.1; 9.2; 13.1.2 Construction (including Horizontal Improvements, Vertical Improvements and all of the Market Rate Units) shall be Completed: (a) within the Market Rate Phase 1 (Lot 11), not later than forty-eight (48) months from the Close of Escrow; and (b) for the Market Rate Project as a whole, not later than the eighth (8th) anniversary of the Close of Escrow. Affordable Project: Construction of the Affordable Project Developer/ (including Horizontal Improvements, Affordable Vertical Improvements and all of the Lower Housing Income Units) shall be Completed: Developer (a) within Phase 1, not later than the earlier of (i) fo -eight 48) months from the . Affordable Project Closing or date of delivery of Alternative Affordable Project Development Plan Certificate or (ii) September 29, 2032, and (b) for the Affordable Project as a whole, not later than the eighth (8th) anniversary of the Close of Escrow. Tustin Irvine Co DDA Att 7 Schedule of Performance Attachment 7 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 10 Por. Disp. Area 213, 2C and 8 ATTACHMENT 8 SCOPE OF DEVELOPMENT Note: References herein to the "DDA" shall mean the Disposition and Development Agreement of which this Attachment is a part; references to "Attachments" mean the Attachments to the DDA unless otherwise specified. Capitalized terms not otherwise defined in this Attachment have the meaning set forth in the DDA. This Attachment presents the Scope of Development. Additional requirements may be contained in the text of the DDA, the Entitlements and the conditions of approval related thereto, the Basic Concept Plan, the Approved Plans and in the Other Agreements. In the event of any conflict between the provisions of this Attachment and the Entitlements or the Approved Plans, the Entitlements and Approved Plans, as applicable shall control. In addition, to the extent any of the terms and provisions of this Attachment are inconsistent with or otherwise are in conflict with the terms and provisions of the DDA or the Other Agreements, the DDA or Other Agreements, as applicable, shall control. 1.0 General Information The scope of development of the Project is the development of up to 1,336 rental apartment homes on 19.4 acres of land in Neighborhood D South of the Tustin Legacy Specific Plan area (Planning Areas 13 and 14). The land is currently subdivided into three parcels, comprising Lot 11, Lot 12 and Lot 13 of Tract 18197. One or more final tract maps associated with Vesting Tentative Tract Map No. 19353 will be required to be recorded in accordance with the Schedule of Performance (Attachment 8) and will further subdivide the Real Property into seven Parcels, with two numbered Parcels within each of Lot 11 (Parcels identified as Lot 1 and Lot 2 on the Vesting Tentative Tract Map), Lot 12 (Parcels identified as Lot 3 and Lot 4 on the Vesting Tentative Tract Map), and Lot 13 (Parcels identified as Lot 5 and Lot 6 on the Vesting Tentative Tract Map) and an additional lettered Parcel (Lot A on the Vesting Tentative Tract Map) set aside for publicly accessible common area and park purposes. Improvements on the Real Property shall include one residential building on each of the newly subdivided numbered Parcels, providing a total of six residential buildings, associated parking structures, recreation facilities inclusive of a publicly accessible park, and resident amenities including a swimming pool on each of Lot 11, Lot 12 and Lot 13, a caf6 accessible to residents and the general public, architectural features, lighting, trash facilities, pedestrian amenities, and a series of publicly accessible pedestrian paseos connecting the Real Property to the surrounding Tustin Legacy District. Landscaping would be provided at the perimeter and throughout the Real Property as described in the Landscape Installation and Maintenance Agreement (Attachment 21 to the DDA) and the Special Restrictions (Attachment 20 to the DDA), respectively. Additionally, on -site access, circulation, utilities and other infrastructure would be installed, as necessary to serve the proposed uses as shown on the Approved Plans. Two of the six residential buildings would collectively contain deed -restricted Lower Income Units and four manager units. Pursuant to State Density Bonus Law, the Project proposes 708 base units plus 628 density bonus units for a total of 1,336 units. Pursuant to the Surplus Lands Act, at least 25% of the total number of Residential Units actually constructed (e.g., 334 units based on Tustin Irvine Co. DDA Att 8 Scope of Attachment 8 City of Tustin/Irvine Company Development 03.07.25 (HM) FINAL I Por. Disp. Areas 2B, 2C and 8 1,336 units constructed) would be provided as Lower Income Units consistent with the Affordable Housing Declaration. Pursuant to State Density Bonus Law and based on 334 affordable units, 263 units would be provided for Low Income Households and 71 would be provided for Very Low Income Households. Allowable rents would be established consistent with applicable state and federal laws including the Surplus Land Act, State Density Bonus Law, and Tax Credit program (as applicable). 2.0 Developer Improvements Developer and/or Affordable Housing Developer, as applicable, shall construct on the Real Property all of the Horizontal Improvements and Vertical Improvements as required and approved by the City, including without limitation, the City Planning Commission and City Council. The Improvements shall generally consist of the following: 2.1 Vertical Improvements. Developer and/or Affordable Housing Developer, as applicable, shall complete the development of the Vertical Improvements to consist of construction and installation of a residential rental apartment community project and other elements included in the definition of Vertical Improvement in the DDA with design quality and amenities consistent with a High Quality Residential Project. The Vertical Improvements shall be comprised of six separate residential "wrap -style" apartment buildings (i.e. residential units wrapped around an integrated parking structure), of four to five levels each with two Buildings planned on each of Lot 11, Lot 12 and Lot 13 of Tract 18197 (as may be further subdivided) with architectural design and project amenities consistent with the Approved Plans. Modifications may occur during the building permit process, subject to prior approval by the City, consistent with DDA Section 8.5. Vertical Improvements shall include, but not be limited to Buildings, parking structures, lighting, and trash enclosures. 2.2 Horizontal Improvements. Developer and/or Affordable Housing Developer, as applicable, shall be responsible for construction of all Horizontal Improvements. Horizontal Improvements will generally include grading, wet and dry utility connections, Private Drives and Sidewalks, walls and fences, landscape and hardscape, irrigation, parkways, Common Area Improvements (including Publicly Accessible Common Area Improvements), swimming pools, restroom facilities and other site amenities and furnishings, and any necessary private and public infrastructure and utilities including, without limitation: (a) All Grading Work (including any necessary import and/or export) and completion of the Private Drives and Sidewalks as well as the sidewalks within the public right of way as further described and depicted in the Landscape and Maintenance Agreement. (b) Any drainage improvements needed to convey the drainage from the Real Property. (c) Landscape Improvements and landscape, irrigation and/or hardscape improvements including the landscape of Parcels, Common Areas on the Real Property and within the existing and proposed public right-of-way. Developer shall install the Tustin Irvine Co. DDA Att 8 Scope of Attachment 8 City of Tustin/Irvine Company Development 03.07.25 (HM) FINAL 2 Por. Disp. Areas 2B, 2C and 8 Landscape Improvements within the Landscape Area and shall enter into a Landscape Installation and Maintenance Agreement pursuant to which Developer, or Affordable Housing Developer, as applicable, shall install and maintain all Landscape Improvements (as defined therein) within the Boundary Landscape Areas in the locations depicted in the exhibits to Attachment 21 to the DDA. (d) The full improvement of the Common Areas with (1) on the Publicly Accessible Common Areas (depicted on Attachment 13A of the DDA), the Publicly Accessible Common Area Improvements, and (2) on the Common Area, Common Area Improvements inclusive of the swimming pools, associated equipment room and restroom facilities and site amenities such as paseos, outdoor kitchens and barbecues, site furnishings, benches and seatwalls, trellises, and shade structures, and other improvements as required by and all consistent with the Approved Plans. (e) All utilities including connection of all utilities, including but not limited to sewer, domestic and reclaimed water, electrical, gas, telephone, cable and telecommunication service connections from their origin as shown in the Specific Plan, the Approved Plans and/or Irvine Ranch Water District Sub Area Master Plan for Tustin Legacy, the Water Quality Management Plan for the Project and/or as approved by the City and responsible private utility purveyors. All scope of work for design and construction includes, without limitation, all surveying, rough and precise grading, import and export of dirt as required, asphalt paving, including, without limitation, any necessary overlays, driveways, sidewalks, concrete, curb and gutter, landscaping, irrigation, lighting, all traffic control, striping and signage and other work to construct improvements in accordance with Tustin City standards. 2.3 Compliance with Codes and Conditions. As more particularly described and provided in Sections 8.1.3 and 8.4.2 of the DDA, all Improvements and the design and construction thereof shall conform to all applicable requirements of the Specific Plan, the Approved Plans, the Entitlements including all "Conditions of Approval" adopted therewith or otherwise stipulated by the City of Tustin, the Development Permits, the Tustin City Code, and any other applicable Governmental Requirements of any Governmental Authority. As more particularly described and provided in Section 8.5 of the DDA, all final working drawings, specifications, grading plans, soil reports, landscaping plans, color and finish schedules shall be approved by the City prior to start of the construction. 2.4 Compliance with DDA. Developer shall comply with all provisions of the DDA related to the planning, design, construction, maintenance and operation of the Improvements and the development shall be in general conformance with the Site Plan and the Phasing Plan (Attachment 3 and Attachment 6, respectively, to the DDA). Tustin Irvine Co. DDA Att 8 Scope of Attachment 8 City of Tustin/Irvine Company Development 03.07.25 (HM) FINAL 3 Por. Disp. Areas 2B, 2C and 8 3.0 Development Standards The Improvements shall be designed and developed as a planned development in which all construction will have architectural quality and character, consistent with Approved Plans. All Common Area and individual open space areas shall be designed, landscaped and developed, consistent with a High Quality Residential Project. Developer acknowledges the responsibility to obtain any approvals required by any governmental agency, utility or other agency, including the City, which has jurisdiction over all or any portion of the Improvements. All "conditions of approval" stipulated by an applicable jurisdiction shall be incorporated into the final design and noted in the construction documents by the architects, engineers and other consultants. 3.1 Architecture and Project Design. The architectural style of the Buildings is a "modern classicism" with tripartite massing along the streetscape. Large openings and enhanced finishes are proposed at the base of the residential buildings with symmetrical piers and extensive windows in the middle section. Varying wainscot and cornices emphasize modern classical elements throughout, create visual movement across the community's skyline, and accentuate each residential building's entry points and amenity spaces. The exterior building materials would primarily consist of stucco, stone veneer/brick or enhanced plaster, low -reflective vinyl windows, and decorative metal work. Architecture, features, and quality standards shall be consistent with the design contained in the Entitlements and the conditions of approval related thereto, the Basic Concept Plan, the Approved Plans and in the Other Agreements. Quality of the Project Improvements will be consistent with the Approved Plans. 3.2 Vehicular Access. The placement of vehicular driveways have been coordinated with the needs of proper street traffic flow. In the interest of minimizing traffic congestion, the City will control the number and location of curb breaks for access to the Real Property. Access to the Real Property shall be provided as depicted on the Site Plan attached as Attachment 3 to the DDA and any modifications shall be subject to approval by the City Traffic Engineer. 3.3 Sins. Project signage shall be designed to contribute positively to the environment. Any signs identifying the Project shall be subject to City approval and must conform to provisions of the Specific Plan and/or Tustin City Code, as applicable. 3.4 Screening. All outdoor storage of materials or equipment shall be compatibly screened to the extent and manner required by the Tustin City Code. Rooftop equipment shall be compatibly screened from view from the surrounding streets. 3.5 Landscapes. Developer shall provide (a) landscape, hardscape and irrigation improvements within the Common Areas of the Project as required by and subject to the Special Restrictions and the Approved Plans, and (b) Landscape Improvements within the Landscape Areas as depicted on Exhibit C attached to the Landscape Installation and Maintenance Agreement, as required by and subject to the Landscape Installation and Maintenance Agreement. 3.6 Utilities. Unless otherwise approved by the City in the Approved Plans with respect to Tustin Irvine Co. DDA Att 8 Scope of Attachment 8 City of Tustin/Irvine Company Development 03.07.25 (HM) FINAL 4 Por. Disp. Areas 2B, 2C and 8 above grade cabinets, or an exception requested by the applicable utility provider and approved by the City, all utilities on and serving the Real Property shall be undergrounded. 3.7 Maximum Development Thresholds. Development on the Real Property shall not exceed 1,336 Residential Units. 4.0 Demolition. Demolition activities shall include the following insofar and only to the extent as may be necessary to provide the Project Improvements: • The reduction and removal of any structures and improvements from the Real Property existing as of the Effective Date, including any subsurface structures, and the removal of all, materials, and debris and rubbish resulting from such demolition. • The removal of any paving (including catch basins, curbs, gutters, drives and sidewalks) existing as of the Effective Date within or on the Real Property. • Coordination of any removal and abandonment by public utility companies of such utility lines, installation, facilities and related equipment existing as of the Effective Date within the Real Property required to effectuate the purposes of the Project and this Agreement. Tustin Irvine Co. DDA Att 8 Scope of Attachment 8 City of Tustin/Irvine Company Development 03.07.25 (HM) FINAL 5 Por. Disp. Areas 2B, 2C and 8 ATTACHMENT 9 FORM OF ALTERNATIVE AFFORDABLE PROJECT DEVELOPMENT PLAN CERTIFICATE This Alternative Affordable Project Development Plan Certificate (this "Certificate") is being delivered pursuant to Section 4.8.5 of that certain Disposition and Development Agreement for Portions of Disposition Parcels 2B, 2C and 8 (Tustin Legacy), dated as of , 202_ {if amended, insert relevant amendment information) (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer"), and the City of Tustin, a municipal corporation of the State of California (the "City"). Capitalized terms used but not defined in this Certificate are used with the meanings specified in the DDA; references to Sections in this Certificate are to Sections of the DDA. I, the undersigned, am the duly elected and qualified [state office held] of Developer, and I am authorized by Developer to make the certifications contained in this Certificate. I further certify to the City for and on behalf of Developer as follows: 1. Lot 13 Transfer. No Lot 13 Transfer has occurred or, subject to the last sentence of Section 4.7.1, will occur, for the Parcel described on Exhibit A to this Certificate (the "Developer Affordable Parcel"). Developer has terminated the Lot 13 PDA and all other agreements between Developer and any Affordable Housing Developer with respect to the Developer Affordable Parcel. 2. Direct Performance. Subject to the last sentence of Section 4.7.1, Developer intends to, and shall, directly perform the Affordable Project Obligations with respect to the Developer Affordable Parcel and accordingly is obligated, among other things, to cause the Affordable Project Improvements on the Developer Affordable Parcel to be Completed without a Lot 13 Transfer and in accordance with the time periods set forth in the Schedule of Performance. Developer shall draw such funds under the Equity Commitment as may be necessary to satisfy Developer's obligations for the direct performance of the Affordable Project Obligations. 3. Other Conditions Precedent. After taking into account the delivery of this Certificate, all of the other Alternative Affordable Project Development Plan Conditions Precedent are satisfied. (signatures on following page) Tustin Irvine Co DDA Att 9 Alt Afford Plan ATTACHMENT 9 City of Tustin/Irvine Co Cert 02.12.25 (HM) FINAL 1 Por Disp. Areas 213, 2C, and 8 Dated: "DEVELOPER" TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 9 Alt Afford Plan ATTACHMENT 9 City of Tustin/Irvine Co Cert 02.12.25 (HM) FINAL S-1 Por. Disp. Areas 213, 2C, and 8 EXHIBIT A LEGAL DESCRIPTION OF DEVELOPER AFFORDABLE PARCEL Tustin Irvine Co DDA Att 9 Alt Afford Plan ATTACHMENT 9 City of Tustin/Irvine Co Cert 02.12.25 (HM) FINAL EXHIBIT A Por Disp. Areas 2B, 2C, and 8 ATTACHMENT 10 LIST OF ENVIRONMENTAL REPORTS AND STATEMENTS 1. Department of Navy "Final Environmental Baseline Survey" dated March 2001 2. Finding of Suitability to Transfer for Southern Parcels 4-8, 10-12, 14, and 42 and Parcels 25, 26, 30-33, 37, and Portions of 40 and 41 Marine Corps Air Station Tustin, California" dated September 28, 2001. 3. Agreement Between The United States of America and The City of Tustin, California for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated May 13, 2002. 4. Quitclaim Deed D and Environmental Restriction Pursuant to Civil Code Section 1471 dated May 13, 2002. 5. Geotechnical Report of Observation and Testing during Rough Grading, "Neighborhood D" Phases I and II, Disposition Area 8, 2C and a Portion of 213, Tustin Legacy, City of Tustin, California dated September 26, 2014. 6. Final Site Assessment and Soil Removal Action Report Tustin Neighborhood D-South, Areas 1 and 2 Total Petroleum Hydrocarbon Impacts Former Marine Corps Air Station Tustin, Tustin, California dated September 2018. 7. Determination of No Further Action for Petroleum Release at Neighborhood D South at Former Marine Corps Air Station Tustin, Orange County, California dated September 10, 2018. 8. Final Summary Report for Per -and Polyfluoroalkyl Substances Presence/Absence Sampling in Groundwater in Carve -Outs 5 and 6 dated November 2018. 9. Per- and Polyfluoroalkyl Substances (PFAS) Investigation Report Neighborhood D South Former Marine Corps Air Station Tustin dates August 30, 2019. 10. Final Summary Report Additional Assessment of Per and Polyfluoroalkyl Substances in Groundwater in Carve -Outs 2, 5, 6, and 9, and Groundwater and Surface Water Near Operable Unit 3 (Phase 1) Former Marine Corps Air Station Tustin dated June 2020. 11. Final Summary Report Additional Assessment of Per and Polyfluoroalkyl Substances in Groundwater in Carve -Outs 2, 5, 6, and 9, and Groundwater and Surface Water Near Operable Unit 3 (Phase 2) Former Marine Corps Air Station Tustin dated October 2020. 12. Final Fourth CERCLA Five Year Review Report, Operable Units IA, I North, I South, 3, and 4B Former Marine Corps Air Station Tustin dated October 2021. 13. Final Preliminary Assessment/Site Inspection Report, Basewide Investigation of Per- and Polyfluoroalkyl Substances, Former Marine Corps Air Station Tustin dated December 2021. Tustin TIC DDA 03.07.25 (HM)(4) ATTACHMENT 10 City of Tustin/Irvine Company Page 1 of 2 Por. Disp. Areas 2B, 2C and 8 14. Final Work Plan Remedial Investigation of Per- and Polyfluoroalkyl Substances (PFAS) Former Marine Corps Air Station Tustin dated January 2024. 15. Final Sampling and Analysis Plan Remedial Investigation for Per- and Polyfluoroalkyl Substances and Additional Characterization of 1,2,3-Tricholoropropane in Groundwater at Operable Unit I Former Marine Corps Air Station Tustin dated September 2024. Tustin TIC DDA 03.07.25 (HM)(4) Attachment 10 City of Tustin/Irvine Company Page 2 of 2 Por. Disp. Areas 2B, 2C and 8 ATTACHMENT 11 FORM OF QUITCLAIM DEED CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE §6103 AND §27383. Recording requested by and when recorded mail to: City Manager The City of Tustin 300 Centennial Way Tustin, CA 92780 Mail Tax Statements to: Tustin Legacy Acquisition LLC c/o The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Attn: Property Tax SPACE ABOVE THIS LINE FOR RECORDER'S USE QUITCLAIM DEED FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 AND COVENANTS, CONDITIONS AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471 This Quitclaim Deed for Portions of Disposition Areas 213, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 ("Quitclaim Deed") is made on this day of , 20_ ("Quitclaim Deed Effective Date"), by the CITY OF TUSTIN, California a municipal corporation of the State of California ("Grantor"), in favor of TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company ("Grantee"). WHEREAS: A. The United States of America ("Government") and Grantor entered into that certain Agreement between the United States of America (acting by and through the Secretary of the Navy or designee) and Grantor, for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin ("MCAS Tustin"), dated May 13, 2002 ("Conveyance Agreement"); B. Pursuant to the Conveyance Agreement, the Government, acting by or through the Department of the Navy, conveyed property at the Marine Corps Air Station Tustin (such property, "Grantor Property") to Grantor pursuant to that certain Quitclaim Deed D and Environmental Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 Restriction Pursuant to Civil Code Section 1471 dated May 13, 2002, that was recorded on May 14, 2002 in the office of the County Clerk Recorder for Orange County, California ("Official Records") as Instrument Number 20020404594 ("Government Deed"), which included that certain real property, comprising approximately 19.4 acres of land, more particularly described on Exhibit A attached hereto and incorporated herein by this reference ("Development Parcels"); C. Pursuant to California Civil Code Section 1471, the Government determined that it is reasonably necessary to impose certain restrictions on the use of the Grantor Property to protect present and future human health or safety or the environment as a result of the presence of hazardous materials on portions of the Grantor Property described hereinafter with particularity; D. Grantor and Grantee entered into (1) that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 202_ ("Original DDA"), {if amended, insert relevant amendment information) (as the same may hereafter be further amended, modified or supplemented in accordance with its terms, the "DDA") providing for the sale and development of a portion of the Grantor Property and (2) that certain Memorandum of Tustin Legacy Disposition and Development Agreement for Portions of Disposition Areas 2B, 2C and 8 (Tustin Legacy) dated as of the effective date of the DDA and recorded in the Official Records immediately prior to the Recording of this Quitclaim Deed (as the same may hereafter be amended, modified or supplemented, "Memorandum of DDA"); E. Grantor has executed (1) that certain Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement ("Affordable Housing Declaration"), and (2) that certain Declaration of Special Restrictions for Portions of Disposition Areas 2B, 2C and 8 ("Special Restrictions"), each consented to by Grantee, which shall be recorded in the Official Records immediately prior to the recording of this Quitclaim Deed; and F. Grantor desires to convey and Grantee desires to acquire the Real Property (as defined below) to facilitate economic redevelopment in accordance with that certain MCAS Tustin Reuse Plan adopted by the City Council of the City on October 17, 1996, and amended in September, 1998, as the same has been subsequently amended ("Reuse Plan") and approved by the Government for MCAS Tustin. 1. NOW THEREFORE, Grantor, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby remise, release and forever quitclaim to Grantee, all of Grantor's right, title and interest in and to the "Real Property," which is comprised of (a) the Development Parcels less and except all of the matters in Section 2 of this Quitclaim Deed, (b) all existing improvements, if any, located on the Real Property as of the Quitclaim Deed Effective Date, (c) all appurtenances pertaining to the Real Property or such improvements, and (d) all permits, licenses, approvals and authorizations issued prior to the Quitclaim Deed Effective Date for development of the Real Property in accordance with the DDA, and (e) a right to develop a maximum of 1,336 residential units. 2. EXCEPTING THEREOUT AND THEREFROM, however, and reserving to Grantor, its successors and assigns, together with the right to grant and transfer all or a portion of the same, the following: Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 2.1 Any and all oil, oil rights, minerals, mineral rights, natural gas, natural gas rights and other hydrocarbons by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may be within or under the Development Parcels together with the perpetual right of drilling, mining, exploring for and storing in and removing the same from the Development Parcels or any other land, including the right to whipstock or directionally drill and mine from lands other than the Development Parcels, oil or gas wells, tunnels and shafts into, through or across the subsurface of the Development Parcels and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to re -drill, re -tunnel, equip, maintain, repair, deepen and operate any such well or mines; but without, however, the right to enter upon or use the surface of the Development Parcels in the exercise of such rights or otherwise adversely affect the use or operation of the Development Parcels as anticipated by the DDA or the structural integrity of any improvements on the Development Parcels; and 2.2 Any and all water, water rights or interests therein appurtenant or relating to the Development Parcels or owned or used by Grantor in connection with or with respect to the Development Parcels no matter how acquired by Grantor, whether such water rights shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the perpetual right and power to explore, drill, re -drill and remove the same from or in the Development Parcels, to store the same beneath the surface of the Development Parcels and to divert or otherwise utilize such water, rights or interests on any other property owned or leased by Grantor; but without, however, the right to enter upon or use the surface of the Development Parcels in the exercise of such rights or otherwise adversely affect the use or operation of the Development Parcels as anticipated by the DDA or the structural integrity of any improvements on the Development Parcels. 2.3 All those excess development rights remaining within Tustin Legacy Specific Plan Neighborhood D, Planning Areas 8, 13 and 14 after deducting from the number of residential units authorized by the Specific Plan the lesser of (a) 1,336 residential units or (b) the number of residential units reflected in a Final Certificate of Compliance recorded in the Official Records against the Real Property, which excess units and development rights retained by Grantor shall be freely transferable by Grantor. 2.4 Notwithstanding anything to the contrary set forth in this Quitclaim Deed, the reservation by Grantor of the rights and interests in this Section 2 shall not be deemed to limit Grantee's right to construct foundations, utilities and other subsurface improvements for the purpose of constructing the Project and otherwise engage in subsurface construction activity in order to construct the Project. 3. The conveyance of the Real Property to Grantee made by this Quitclaim Deed is SUBJECT TO THE FOLLOWING NOTICES, COVENANTS, CONDITIONS AND RESTRICTIONS, which shall be binding upon and enforceable against the Real Property and Grantee, and its successors and assigns, in perpetuity: 3.1 Grantee agrees to accept conveyance of the Real Property subject to all covenants, conditions, restrictions, easements, rights -of -way, reservations, rights, agreements and encumbrances of record, including, without limitation, the DDA, the Memorandum of DDA, the Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 Affordable Housing Declaration and the Special Restrictions, which are and shall be covenants running with the land, shall not merge into this Quitclaim Deed and are and shall be binding upon Grantee and all successors and assigns of Grantee owning all or any portion of Real Property for the benefit of Grantor and its successors and assigns, unless or until such responsibilities and obligations are released pursuant to the provisions of the aforesaid documents, including the release of obligations under the DDA that Grantee may obtain as to any portion of the Real Property pursuant to a Certificate of Compliance (as defined and further provided for in the DDA) executed by Grantor and recorded against such portion of the Real Property. 3.2 The Government Deed conveying the Grantor Property to Grantor was recorded prior to recordation of this Quitclaim Deed. Grantor has no knowledge regarding the accuracy of information provided by the Government regarding the environmental condition of the Development Parcels and makes no warranties regarding the environmental conditions of the Development Parcels. Grantor has no knowledge regarding the accuracy or adequacy of the Government's remediation of the Development Parcels as provided in the Government Deed. The foregoing provisions of this Section 3.2 do not limit or restrict any representations, warranties, covenants or obligations that Grantor may have made solely for the benefit of Grantee (and its permitted transferees) in the DDA or any other agreement. 3.3 Government Deed D. The italicized information below is copied verbatim (except as discussed below) from Sections 2.2, 2.3, 2.5, 2.6, 2.8, 2.9 and Section 3 of the Government Deed. To the extent applicable to the Property conveyed hereunder, by acceptance of this Quitclaim Deed, Grantee, on behalf of itself and its successors and assigns acquiring fee title to all or any portion of the Real Property and each and every Person claiming by, through or under Grantee or such successors or assigns, hereby acknowledges and assumes all responsibilities placed upon Grantor under the terms of the aforesaid Government Deed. Within the italicized information contained in this Section 3.3 only, the term "GRANTOR" shall mean the Government, the term "GRANTEE" shall mean the City of Tustin and the term "Property" shall mean the Grantor Property, including, without limitation, the Real Property. To avoid confusion, within the italicized information, the word "Government" has been added in brackets after the word "GRANTOR", and the words "City of Tustin" have been added in brackets after the word " GRANTEE." 2.2 A FOST has been completed and an Environmental Baseline Survey ("EBS") report is referenced in the FOST. The FOST and EBS reference environmental conditions on the Property and on other property not subject to this Deed. GRANTEE ["City of Tustin "] acknowledges that it has received copies of the EBS and the FOST and that all documents referenced therein have been made available to GRANTEE ["City of Tustin'] for inspection and copying. 2.3 Except as otherwise provided herein, or as otherwise provided by law, the GRANTEE ["City of Tustin' J acknowledges that it has inspected, is aware of, and accepts the condition and state of repair of the Property, and that the Property is conveyed "as is " and "where is " without any representation, promise, agreement, or warranty on the part of the GRANTOR ["Government"] regarding such condition and state of repair, or regarding the making of any alterations, improvements, repairs or additions. Except for the environmental remediation which may be required to be undertaken by GRANTOR Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 ["Government'] pursuant to paragraph 2.6 below, the GRANTEE ["City of Tustin"] further acknowledges that the GRANTOR ["Government'7 shall not be liable for any latent or patent defects in the Property except to the extent required by applicable law. 2.5. Lead Based Paint (LBP 2.5.1. The Property may include improvements ... that are presumed to contain LBP because they are thought to have been constructed prior to 1978.... Lead from paint, paint chips, and dust can pose health hazards if not managed properly. Pursuant to 40 CFR Section 745.113 the following notice is provided: "Every purchaser of any interest in residential real property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead from lead -based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young children may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant women. The seller of any interest in residential real property is required to provide the buyer with any information on lead -based paint hazards from risk assessments or inspections in the seller's possession and notify the buyer of any known lead -based paint hazards. A risk assessment or inspection for possible lead -based paint hazards is recommended prior to purchase. " 2.5.2 The GRANTEE ["City of Tustin "] hereby acknowledges the required disclosure of the presence of any known LBP and/or LBP hazards in target housing constructed prior to 1978 in accordance with the Residential Lead -Based Paint Hazard Reduction Act of 199Z 42 U.S.C. Section 4852d (Title X). The GRANTEE ["City of Tustin "] acknowledges the receipt of available records and reports pertaining to LBP and/or LBP hazards and receipt of the Environmental Protection Agency (EPA) approved pamphlet "Protect Your Family from Lead in Your Home" (EPA 747-K-94,001). Furthermore, the GRANTEE ["City of Tustin"] acknowledges that it has read and understood the EPA pamphlet. 2.5.3 The GRANTEE ["City of Tustin"] covenants and agrees that, in any improvements on the Property defined as target housing by Title X and constructed prior to 1978, LBP hazards will be disclosed to potential occupants in accordance with Title X before use of such improvements as a residential dwelling (as defined in Title X). Further, the GRANTEE ["City of Tustin' J covenants and agrees that LBP hazards in target housing will be abated in accordance with Title X before use and occupancy as a residential dwelling. "Target housing" means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than six [6] years of age resides, or is expected to reside, in such housing) or any zero -bedroom dwelling. 2.5.4 The GRANTEE ["City of Tustin "] covenants and agrees that in its use and occupancy of the Property, it will comply with Title X and all applicable federal, state, and local laws relating to LBP. The GRANTEE ["City of Tustin "] acknowledges that the GRANTOR ["Government"] assumes no liability for damages for personal injury, illness, disability, or death to the GRANTEE ["City of Tustin' J, or to any other person, including members of the general public, arising from or incident to the purchase, transportation, Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL 5 Por. Disp. Areas 213, 2C and 8 removal, handling, use, disposition, or other activity causing or leading to contact of any kind whatsoever with LBP on the Property, arising after the conveyance of the Property from the GRANTOR ["Government"] to the GRANTEE ["City of Tustin'], whether the GRANTEE ["City of Tustin'] has properly warned, or failed to properly warn, the persons injured. (SECTION 2. S. S INTENTIONALLY DELETED} 2.6 Notices And Covenants. 2.6.1. Notices: Hazardous Substance Notification. Pursuant to 42 U.S.C. §9620(h) (3) (A), and the provisions of 40 C.F.R. part 373, the GRANTOR ["Government"] hereby gives notice that hazardous substances were stored for one year or more, released or disposed of on the Property. The information contained in this notice is required by regulations promulgated under Section 120(h) of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA or "Superfund'), 42 U.S.C. § 9620(h). The GRANTOR ["Government"] has made a complete search of its files and records concerning the Property. Based on that search, the type and quantity of such hazardous substances, the time at which such storage, release or disposal took place, to the extent such information is available, and a description of the remedial action taken, if any, is contained in Exhibit `B" [which is attached to this Quitclaim Deed as Exhibit B and incorporated herein by this reference]. 2.6.2. Grant of Covenant [CERCLA 42 U.S.C. Section 9620 (h)(3)(A)(ii)(I)J. The GRANTOR ["Government'] covenants and warrants that all remedial action necessary to protect human health and the environment with respect to any hazardous substance remaining on the Property has been taken before the date of transfer. 2.6.3. Additional Remediation Obligation [CERCLA 42 U.S.C. Section 9620(h)(3)(A)(ii)(H)J. The GRANTOR ["Government"] covenants and warrants that GRANTOR ["Government"] shall conduct any additional remedial action found to be necessary after the date of transfer for any hazardous substance existing on the Property prior to the date of this Deed. This covenant shall not apply to the extent that the GRANTEE ["City of Tustin'] caused or contributed to any release or threatened release of any hazardous substance, pollutant, or contaminant. 2.6.4. Access [CERCLA 42 U.S.C. Section 9620 (h)(3)(A)(iii)J. In connection with GRANTOR'S ["Government"] covenant in 2.6.3 above and in connection with ongoing remediation on GRANTOR'S ["Government"] property adjacent to the Property, GRANTEE ["City of Tustin "] agrees on behalf of itself, its successors and assigns, as a covenant running with the land, that GRANTOR ["Government"], or its officers, agents, employees, contractors and subcontractors, shall have the right, upon reasonable notice to GRANTEE ["City of Tustin"], to enter upon the Property in any case in which a response or corrective action is found to be necessary at such property after the date of this deed, or such access is necessary to carry out a response action or corrective action on adjoining property. Neither GRANTEE ["City of Tustin"], nor its successors and assigns, shall have any claim on account of such entries against the United States or any Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL 6 Por. Disp. Areas 213, 2C and 8 of its officers, agents, employees, contractors or subcontractors. The right to enter shall include the right to conduct tests, investigations and surveys, including, where necessary, drilling, test pitting, boring and other similar activities. Such right shall also include the right to construct, operate, maintain or undertake any other response or corrective action as required or necessary, including, but not limited to monitoring wells, pumping wells, treatment facilities, and the installation of associated utilities. In exercising these rights of access, except in case of imminent and substantial endangerment to human health or the environment, the GRANTOR ["Government'7 (1) shall give the GRANTEE ["City of Tustin "] reasonable notice of any action to be taken related to such remedial or corrective actions on the Property, and (2) make reasonable efforts to minimize interference with the on -going use of the Property. Furthermore, the GRANTOR ["Government'7 and GRANTEE ["City of Tustin"] agree to cooperate in good faith to minimize any conflict between the necessary environmental investigation and remediation activities and the GRANTEE'S ["City of Tustin' J use of the Property. Any inspection, survey, investigation or other response, corrective or remedial action undertaken by GRANTOR ["Government'7 will, to the maximum extent practical, be coordinated with representatives designated by the GRANTEE ["City of Tustin'7. In connection with GRANTOR'S ["Government'7 remedial actions described above, GRANTEE ["City of Tustin "] agrees on behalf of itself, its successors and assigns, as a covenant running with the land, to comply with the provisions of any health or safety plan in effect during the course of any such action. 2.8 Indemnification Regarding Transferees. The GRANTOR ["Government"] hereby recognizes its obligations under Section 330 of the National Defense Authorization Act of 1993 (Pub. L. 102-484), as amended, regarding indemnification of transferees of closing Department of Defense property. 2.9 Non Discrimination. GRANTEE ["City of Tustin' J covenants for itself, its successors and assigns, that it will comply with all applicable provisions of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1975 in the use, occupancy, sale or lease of the Property. The foregoing shall not be construed to prohibit the operation of federal or state approved programs focusing on the special needs of the homeless, veterans, victims of domestic violence and other classes of persons at risk; nor shall it be construed to prohibit employment practices not otherwise prohibited by law. The GRANTOR ["Government'7 shall be deemed a beneficiary of this covenant without regard to whether it remains the owner of any land or interest therein in the locality of the Property hereby conveyed and shall have the sole right to enforce this covenant in any court of competent jurisdiction. 3. NO HAZARD TO AIR NAVIGATION. GRANTEE ["City of Tustin'7 covenants for itself, its successors and assigns, that in connection with any construction or alteration on the Property, it will obtain a determination of no hazard to air navigation from the Federal Aviation Administration in accordance with Title 14, Code of Federal Regulations, part 77, entitled "Objects Affecting Navigable Airspace, " or under the authority of the Federal Aviation Act of 1958, as amended. Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL 7 Por. Disp. Areas 213, 2C and 8 3.4 The responsibilities and obligations placed upon Grantor by the Government shall run with the land and be binding on Grantee and all subsequent owners of the Real Property or any portion thereof, unless and until such responsibilities and obligations are released pursuant to the provisions set forth in the Government Deed. 3.5 As further set forth in and subject to the terms and conditions of the DDA, Grantee acknowledges that it has examined the Real Property and is buying the Real Property from Grantor in an "AS IS, WHERE IS, WITH ALL FAULTS" condition, in its present state and condition and with all faults, which provisions shall survive the close of escrow related to this transaction and do not merge with this Quitclaim Deed. 4. This Quitclaim Deed is made and accepted upon (a) the covenants, conditions, restrictions and other matters set forth in the Special Restrictions which are incorporated herein by reference with the same force and effect as though fully set forth herein, and (b) subject to reservations, covenants and restrictions as set forth in the Government Deed, including without limitation those provisions set forth herein. Each future transfer or conveyance of the Real Property or any portion thereof shall include notice of the Special Restrictions and Affordable Housing Declaration and in addition shall include those disclosures and environmental covenants contained in the Government Deed. 5. The terms of this Quitclaim Deed are hereby agreed and declared by Grantee and Grantor to be covenants running with the land and enforceable as restrictions and equitable servitudes against the Real Property, and are hereby declared to be and shall be binding upon and burden the Real Property and Grantee and all successors and assigns of Grantee owning all or any portion of the Real Property and all Persons claiming by, through or under Grantee or such successor or assign for the benefit of Grantor and Grantor and its Governmental Successors shall retain the right to enforce the restrictions and equitable servitudes against the Real Property and the same shall be enforceable solely by Grantor and its governmental successors. {signatures on next page} Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL 8 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, Grantor, THE CITY OF TUSTIN, has caused this Quitclaim Deed to be executed on the day first above written. CITY OF TUSTIN: Dated: By: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City By: Amy E. Freilich Aldo E. Schindler City Manager (signatures continued on next page) Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL S-1 Por. Disp. Areas 213, 2C and 8 ACKNOWLEDGEMENT OF GRANTEE'S COVENANTS BY EXECUTING THIS QUITCLAIM DEED BELOW, ON AND AS OF THE DATE WRITTEN BELOW, Grantee on behalf of itself and all subsequent owners of the Real Property or any portion thereof and each and every Person claiming by, through or under Grantee, on behalf of itself and its successors and assigns acquiring fee title to all or any portion of the Real Property and each and every Person claiming by, through or under Grantee or such successors or assigns, hereby acknowledges and accepts and agrees to be bound by this Quitclaim Deed and the covenants and agreements of Grantee contained in this Quitclaim Deed. Dated: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL S-2 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL S-3 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL S-3 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL S-3 Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit A Por. Disp. Areas 213, 2C and 8 EXHIBIT B DESCRIPTION OF THE REMEDIAL ACTION TAKEN BY THE GOVERNMENT {see attached) Tustin Irvine Co DDA Att 11 Quitclaim Deed Exhibit B City of Tustin/Irvine Company 02.26.25 (HM) FINAL Por. Disp. Areas 213, 2C and 8 r r F F F F F ILH F H H r r H F N r r id Vi Vi 97 w IYJ m vJ �i is �a �i an Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 1 p'f os w w R d 8C fC C Ir DC Q' � 4 A 2 2 i � OY ^ P 4 r r lit �� � 1 1XI 12211 4 a n 4 n I 2 S d 7 7 z 2 2 Y M1 4 wiwr� M1 n co £ $ 3 d�EL i o I LD h1lY7 nauFn wesoknh u-+ ]Hutt ad � m amm _ ww{- Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 2 a a A J Q o n f- =`r= j §4���-���i 4zz�; �a��- 7� O 73 Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 3 a Of IC f: + u} nY oL s+: .Y C It: GC Z 4+ v R S 2 7. { G Z z E Y f S Z Z nw E S z z f iE eaAi 0 � I m 9UP m E i a d i G V a u x x a� v an M g � ffw]] Fg jr� a � VrJ 7 :3 iq py �f{ Sp I a O a _ �. w .. ...-..-ti.-r- w ...... � •- w `---- -m a o _ [v f4 iY ry ry M _ � �� a -- Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 4 # U g ¢ 6 o[ M V ae a: rc oe rc M M oe oe IE¢ oe a[ rc¢ IE rc x e[ ¢ o Dage Cta C a rr rc Rca � �i 262lC 26 �i .p — — — —— —— ——-——kf{29 — -1 —J M 7 3 3 7 5 7 7 ;P 7 0 5 P7 3 3 >>> 3 3 > r -—— r r—— r r r r r r I 4 qq g qq xx ryry q ra �§ 7�43G 1pd x C m 4 r- b s F¢ g ..SW, N _ G C LS, 29 Ai u25 o 4a--a4 -4 ---- — ---44 44 4 mY m Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 5 Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 m r x 3 �7 0 0 If d sA 0 6 It 8C K tV ¢ ¢ Of ¢ {C K fC lC K fC W fC 41) 69 M 0 0 O JO 0 d5 utr � fC l[ Y a n 64 9 0 S c $ R R R 8 H& S H 8 H 8 3 8 9 F R R g r F� 52 37 Y gi i r r r r- r 2 L Y i i r r aQ 2: T d u o u[ co- - rt f a rt 2 d 2 2D x=�� 2 '�' x x S 5 3 3 Z 3' 7 D3 ti E O F 0 w i t 4 is va w in 4g Q 4 4 4 R R 4 0 4 4 4 F? 4 9 4 4 V wN f °' Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 7 4 �• ;7 {rim C7 wF s8 •h w 0 m wh n m aq M a w w d OC Of it It m Y 0: 8 kk gg gg g S] Z 2 2 2 2 2 w O O � 9 t. t� 2 a� oe$�oa �ay¢a#m�mm�r+uilc3q� ry— 0 °+ y as V V Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 8 O ��o fC 'Y K in m m m uo rr x a rc o 3 �Q C 0 7 3 M 7 7 7 7 7 7 A E C d d 4 d d 2 S 2 % Z S r r r S SJ i CC V It iY 11! d m as m 0 M 01 R 8 8 S 8 S 9 3 9 9 9 9 4 r r r Q 4 < 4 < 4I 2 2 z 2 M = i i z Z 2 2 z Is S 3 IY Z z W ryy •' { a 2 qq S 2 f Y Ss ss q � o � a 444 .5 -M m' im a � {��y��� TT#Tip##�fV ¢TC]p iii Y�I � do o4 040 0' i9a Ngig�9 0�'q`9 95 149 Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 9 p 6 t � � w �s R � � . a �2.2 � � t d S R ff. Q; w Qr M t R cc R' X ff X fC {C T. 1. r.I f g � Q 9 E S a e S 2 S 2 B S B 2 B ggR ran pay S 7 M 7 I- . - r- r r- r- r- r 9 9 1 11 G zz M_ _ z d � u a g {5 ti 12 r Ni 17 V-L 13 +19i d7 a}- r - �}= m- R� n n1 eo-i �y 13i M+iS- }- T = 1 cS- T- ZO a� ti 3 ; T � � Y # Y 4 R T R • • 4 * � � � � � a � 3 Tustin Irvine Co DDA Att 11 Quitclaim Deed ATTACHMENT 11 City of Tustin/Irvine Company 02.26.25 (HM) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 10 ATTACHMENT 12 FORM OF MEMORANDUM OF DDA CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE §6103 AND §27383. Recording requested by and when recorded mail to: City Manager The City of Tustin 300 Centennial Way CA 92780 SPACE ABOVE THIS LINE FOR RECORDER'S USE MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT (TUSTIN LEGACY) FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 This MEMORANDUM OF TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT FOR PORTIONS OF DISPOSITION AREAS 213, 2C AND 8 (this "Memorandum") is made as of , 202_ ("Memorandum Effective Date") by and among the CITY OF TUSTIN, a municipal corporation of the State of California ("City") and , a ("Developer") to provide record notice that City and Developer have entered into that certain Tustin Legacy Disposition and Development Agreement for Portions of Disposition Areas 2B, 2C and 8, dated as of [{if amended:} ("Original DDA") as amended by that certain J("DDA"). The City and Developer are sometimes referred to herein individually as a "Party" and collectively as the "Parties." Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the DDA. [{if amended.) Wherever in this Memorandum reference to a Section of the DDA is made, such reference shall be to the text of that Section in the Original DDA as the text of that Section has been amended, if at all, by the text of the First Amendment.] Real Property Affected by the DDA. 1.1 The Real Property. The property affected by the DDA is the "Property," consisting of (as more fully described in the DDA): (a) the land (the "Land") legally described on Exhibit A attached hereto, currently comprised of Lot 11, Lot 12, and Lot 13 of the Final Tract Map No. 18197 recorded in the Orange County Clerk -Recorder's Office (each such Lot, together with any other legal parcels or lots created by a Developer Final Tract Map, is referred to as a "Parcel"); (b) all existing improvements, if any, located on the Land as of the Effective Date; (c) all appurtenances pertaining to the Land or such improvements; (d) all permits, licenses, approvals and Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL 1 Por. Disp. Areas 213, 2C and 8 authorizations issued prior to the Close of Escrow by any Governmental Authority in connection with the Land for development of any improvements; (e) the right to construct up to 1,336 Residential Units on the Land as described in Section 4.1.1 of the DDA; (f) all of City's right, title and interest in, to and arising out of the Intangible Property (excluding the matters described in Section 4.1.2 of the DDA); but excepting from all of the foregoing the matters set forth in Section 2 of the Quitclaim Deed (as defined below). The portions of the Property comprising real property are referred to as the "Real Property"). 1.2 Binding Agreement. The DDA shall, in accordance with its terms, run with the land and burden and be binding upon the Real Property and Developer and each Successor Owner (but excluding End Users) as an equitable servitude, unless and until terminated in accordance with its terms, and shall govern the use and development of the Property and the Improvements by Developer and each successor and assign of Developer and each Successor Owner (but excluding End Users). 2. Effect of the DDA. The DDA imposes certain obligations, agreements, covenants, conditions and restrictions with respect to the Property and with respect to Developer's acquisition, development, use, operation, maintenance and ultimate disposition thereof, that run with the Real Property, unless and until terminated in accordance with their respective terms, as further set forth in the DDA. Among these obligations are the following: (a) Certain restrictions on Transfer, conveyance, and assignment of the DDA, the Property, and the Improvements or any portion thereof or interest therein, whether voluntary or involuntary, and certain restrictions on the Transfer of Control of Developer, each contained in Article 2 of the DDA, that terminate as to all of the Real Property upon execution and Recording by the City of a Final Certificate of Compliance and terminate as to each Parcel upon the Recording by the City of a Certificate of Compliance for that Parcel, as further set forth in the DDA; (b) Certain restrictions on Mortgages contained in Articles 2 and 17 of the DDA, including without limitation, a prohibition on encumbrance of the Real Property with any Mortgage, which limitations terminate as to each Parcel upon execution and Recording by the City of a Certificate of Compliance for such Parcel, as further set forth in the DDA; (c) Certain releases, waivers, and indemnities made by Developer in favor of the City and its Governmental Successors that are also set forth in the Declaration of Special Restrictions, dated as of the Memorandum Effective Date and intended to be Recorded contemporaneously with the Recording of this Memorandum (the "Special Restrictions"), which releases, waivers, and indemnities are, in accordance with their terms, binding on Developer and its successors and assigns under the DDA, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner (other than any End User), for the term of such releases, waivers, and indemnities as further set forth in the Special Restrictions; (d) The Right of Repurchase in favor of the City, described in the DDA, which gives the City the right to purchase the Real Property or portions thereof under certain circumstances, as further set forth in the DDA; and Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL 2 Por. Disp. Areas 213, 2C and 8 (e) The Right of Reversion in favor of the City, described in the DDA, which entitled the City to a reversion of title to the Real Property or portions thereof under certain circumstances, as further set forth in the DDA. 3. Effect of DDA on End Users. Notwithstanding anything to the contrary set forth in this Memorandum, the general prohibition against Transfer outlined herein shall not be applicable to End User, defined as any (i) utility or Governmental Authority with respect to any transfer of portions of the Real Property or grants of easements affecting the Real Property desirable for the development of the Real Property, including the City or any lighting or landscaping district and (ii) any natural person that is the tenant under a lease for a Residential Unit and inhabits the unit for which it is the tenant. 4. Certificates of Compliance. If Developer is entitled under the terms of the DDA to the issuance of a Certificate of Compliance for a Parcel, then the City shall furnish Developer with a Certificate of Compliance for such Parcel in recordable form upon written request by Developer. The Certificate of Compliance shall be deemed to be the City's conclusive determination of satisfactory Completion of the Improvements covered by such Certificate of Compliance and compliance with all other conditions required by the DDA, subject only to such obligations of Developer under the DDA and the Other Agreements as expressly survive the issuance of a Certificate of Compliance, each of which shall survive in accordance with its respective terms. Each Certificate of Compliance shall state the actual number of units constructed on the Real Property as of the date of issuance thereof, and such unit count shall establish the actual number of units allocated to Developer by the City pursuant to Section 4.1.2 of the DDA. The Certificate of Compliance for the last such Parcel shall be denominated the Final Certificate of Compliance and shall be Recorded against all of the Real Property and shall establish the final number of units allocated to Developer by the City for all of the Real Property. 5. DDA and Memorandum Run With the Land. The DDA and this Memorandum, including, without limitation, the provisions of the DDA referred to above, and all other obligations, agreements, covenants, representations, warranties, and indemnities set forth in the DDA and this Memorandum, are hereby agreed by Developer and by the City, subject to their respective terms, to be covenants running with the land and enforceable as equitable servitudes against the Real Property, and are hereby declared to be and shall, subject to their respective terms, burden and be binding upon the Real Property and Developer and its successors and assigns, each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner (other than End Users) for the benefit of the City and its successors and assigns, subject to the effects of Recording of a Certificate of Compliance as described in Section 4 of this Memorandum. 6. City Lien Rights; Priority. The DDA provides that Developer is not entitled to encumber any Parcel with the lien of any Mortgage prior to the issuance of a Certificate of Compliance for such Parcel, but that under certain circumstances an Affordable Housing Developer that is a Ground Lessee under the terms of an Approved Ground Lease may subject its leasehold interest to a Leasehold Mortgage. The DDA provides that certain amounts payable by the Developer under the terms of the DDA and the Other Agreements are entitled to the benefit of a lien (referred to in the DDA and in this Memorandum as the "City Lien"). The City Lien shall to the greatest extent permitted by applicable law, be a lien and charge upon the Property and shall be a continuing lien Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL 3 Por. Disp. Areas 213, 2C and 8 upon the Property in favor of the City effective upon the Recording of this Memorandum paramount to the lien and charge of each and every Mortgage, Construction Lien and other lien upon or affecting the Property to the extent provided in the DDA. The encumbrance of the City Lien, the Right of Purchase, and the Right of Reversion, each as created under the DDA, are superior to the lien of each and every Mortgage encumbering any portion of the Real Property. The DDA provides that the City will enter into a Subordination Agreement under certain circumstances with Leasehold Mortgagees pursuant to which cure rights and other protections are afforded to Leasehold Mortgagees. 7. Acknowledgment and Assumption by Developer. Acceptance and Recording of the Quitclaim Deed concurrently with or following Developer's execution of the DDA is Developer's acknowledgement that it assumes all responsibilities placed upon Developer under the terms of the DDA. 8. Public Documents. The documents constituting the DDA are public documents and may be reviewed at the official offices of the City. 9. Interpretation; Notice. This Memorandum is prepared for recording and notice purposes only and in no way modifies the terms, conditions, provisions and covenants of the DDA. In the event of any inconsistency between terms, conditions, provisions and covenants of this Memorandum and the DDA, the terms, conditions, provisions and covenants of the DDA shall prevail. 10. Attachments. The Attachments attached to this Memorandum are hereby incorporated by this reference into this Memorandum as though fully set forth in the text of this Memorandum. 11. Termination. This Memorandum shall terminate as to each Parcel on the earlier of (a) termination of the DDA as to such Parcel, or (b) Recording of the Certificate of Compliance as to such Parcel. {signatures on next page} Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL 4 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the City and Developer have executed this Memorandum as of the Memorandum Effective Date. CITY OF TUSTIN: Dated: By: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City Amy E. Freilich Aldo E. Schindler City Manager DEVELOPER: ,a By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL S-1 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL S-2 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL S-3 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL S-4 Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOTS 11, 12 AND 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. FOR CONVEYANCING PURPOSES ONLY: APN'S 430-481-02, 03, 04 AND 05 Tustin Irvine Co DDA Att 12 Memorandum of DDA ATTACHMENT 12 City of Tustin/Irvine Co. 02.18.25 (HM)(2) FINAL Exhibit A Por. Disp. Areas 213, 2C and 8 ATTACHMENT 13A - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS I FC;Fmn PROPERTY COMMON AREA *LANDSCAPE AREA TO BE MAINTAINED BY DEVELOPER ,� OE E N G I N E E R I N G TUSTIN RANCH RD. El IN SCALE: 1"=80' SHEET 1 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13A - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS PROPERTY PUBLICLY ACCESSIBLE .00❖.❖.o�COMMON AREA . TO BE DEVELOPERMAINTAINED BY SINq� Mwgy TUSTIN RANCH RD. Ao RLS W�E E N G I N E E R I N G SCALE: ill =80' SHEET 2 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13A - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS PEEBLE WAY w D z w Q U) U) a 75 O U LEGEND PROPERTY COMMON PUBLICLY ACCESSIBLE - *LANDSCAPE AREA TO BE MAINTAINED BY DEVELOPER ,� OE E N G I N E E R I N G SEE SHEET 4 BUILDING 3 LOT 12 Z 1 W 1 a G) 70 I S� P�M'N P2 SEA SN�E� SCALE 1"=80' SHEET 3 OF 5 9 T TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13A - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS CO `q�Rsy� q�ycFFrs o) ` `\ V I � BUILDING 4 LOT 12 I � I / � I � 1 � � PEEBLEJ I WAY SEE SHEET 3 LEGEND — - - — PROPERTY LINE PUBLICLY ACCESSIBLE COMMON AREA *LANDSCAPE AREA TO BE MAINTAINED BY DEVELOPER -44100- ALE: SC ,oRLOCm 1., _ $o E N G I N E E R I N G SHEET 4 OF 5 T a a a 0 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13A - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS WARNER AVENUE - r _ EXISTING BIOSWALE & ROCK WALL TO BE MAINTAINED BY CITY OF TUSTIN I I I I I II I I w z > Q BUILDING 6 �� I m m I D o I n U Qo 0- 0 LOT 13 U I I I I I BUILDING 5 LEGEND - - - - PROPERTY LINE PUBLICLY ACCESSIBLE COMMON AREA *LANDSCAPE AREA TO BE MAINTAINED BY DEVELOPER ,o RLECm E N G I N E E R I N G AIRSHIP AVENUE SEE SHEET 4 SCALE: ill =80' SHEET 5 OF 5 9 T TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13B - COMMON AREA PLAN LOT 11 RETAIL & CO -WORKING J�' t PJ� , f AMENITY QP � G yT� , N W W U) W W U) o TUSTIN RANCH RD. LEGEND - - - - PROPERTY LINE COMMON AREA / SCALE: OE 1,. = 80 E N G I N E E R I NG SHEET 1OF5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13B - COMMON AREA PLAN s� �s _ F LOT 11 144 I r w AMENITY w w w •) / U UQ I I G TUSTIN RANCH RD. / LEGEND — - - — PROPERTY LINE COMMON AREA SCALE: 1., _ $o' E N G I N E E R I Nc SHEET 2OF5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13B - COMMON AREA PLAN PEEBLE WAY SEE SHEET 4 LEGEND �J' LOT 12 III \1 - - - - PROPERTY LINE COMMON AREA E N G I N E E R I N G SCALE: ill =80' SHEET 3 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13B - COMMON AREA PLAN COO� `/RSypFSyFFTs N �o \ \ \ LOT 1 �Q. G i PEEK WAY SEE SHEET 3 LEGEND — - - — PROPERTY LINE COMMON AREA SCALE: 1., _ $o' E N G I N E E R I Nc SHEET 4OF5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13B - COMMON AREA PLAN WARNER AVENUE 1 EXISTING BIOSWALE & ROCK WALL TO BE MAINTAINED BY CITY OF TUSTIN I I AMENITY w r m � p z I D w n Qo co v Q a_ 2 p LOT 13 U I FITNESS & LOUNGE CLUBROOM p SHIP AVEN SEE SHEET 4 LEGEND — - - — PROPERTY LINE COMMON AREA f rl 'I SCALE: 1"=80' bb. -) RUS E N G I N E E R I Nc SHEET 5OF5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 13C PUBLIC ACCESS COVENANT CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE §6103 AND §27383. RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City Manager The City of Tustin 300 Centennial Way Tustin, California 92780 Space Above This Line Reserved for Recorder's Use PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENTS AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE This PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENTS AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE ("Covenant") is made this day of , 20_, by TUSTIN LEGACY ACQUISITION LLC, Delaware limited liability company ("Developer"), in favor of the CITY OF TUSTIN ("City") and for the benefit of its successors and assigns, and where specified, its residents and the public at large. A. Immediately prior to the recording of this Covenant in office of the County Clerk Recorder for Orange County, California ("Official Records"), the City has conveyed to Developer that certain real property legally described on Schedule I attached hereto and made a part hereof ("Real Property") and Developer intends to develop the Real Property with a multifamily residential project of which twenty-five percent (25%) shall be affordable housing units and the remaining market rate units ("Project") together with on -site infrastructure and a complete accompanying set of high quality amenities as further described in (1) that certain statutory Development Agreement between City and Developer dated as of , 20_ and recorded in the Official Records on as Instrument No. {if amended, insert amendment information) ("Development Agreement") and (2) that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy) between Developer and City dated as of ("DDA"), a memorandum of which was recorded in the Official Records immediately prior to recording of this Covenant. B. The Project will be developed pursuant to Final Tract Map No. 19353 to be recorded in the Official Records ("Developer Final Tract Map"), which unless otherwise approved by the City in its sole discretion shall be in the form and substance of Tentative Tract Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL I Por. Disp. Areas 213, 2C and 8 Map No. 19353 approved by the City pursuant to the California Subdivision Map Act on , 20_ ("Approved Tentative Tract Map") a copy of which is attached to this Covenant for reference as Schedule 2 and incorporated herein by this reference and which is proposed to be recorded in the Official Records as the Developer Final Tract Map upon approval thereof by Orange County. C. As partial consideration for the conveyance of the Real Property by the City to Developer, Developer has agreed to make certain dedications and grants of easements and releases in favor of the City pursuant to this Covenant including the releases specified herein and the grant to the public of the right to public access in, over, along, though, upon and across the Publicly Accessible Common Area depicted upon Schedule 3 subject to the terms and conditions herein. D. This Covenant is also intended to preserve and maintain the obligation of Developer and each and every Person owning or acquiring fee title to all or any portion of the Real Property ("Successor Owner"), and each and every Person claiming by, through or under Developer or any Successor Owner, to grant the easements and make the dedications of required street rights -of - way; dedication of required flood control right-of-way easements; and dedication of vehicular access rights, sewer easements, and water easements and other easements, if any, defined and approved as to specific locations by the City Engineer and/or other agencies, as depicted on the Approved Tentative Tract Map attached as Schedule 2, as the same may be modified with the approval of the City in the exercise of its legislative, administrative and/or enforcement capacity in approving the Developer Final Tract Map, such easements, releases and dedications to remain in effect pursuant to this Covenant until the Developer Final Tract Map dedicating and memorializing the easements, releases and dedications described herein is recorded in the Official Records against the Real Property. NOW THEREFORE, Developer hereby covenants, and Developer and City hereby agree, as follows: 1. Developer hereby grants and conveys to the City, for the benefit of the City and its successors and assigns, City residents and the public at large, at no cost to the City, a non- exclusive, perpetual easement in gross and right-of-way for public access in, over, along, through, upon and across that certain Real Property in the locations where such easements, publicly accessible common area and rights -of -way are depicted on Schedule 2 and Schedule 3 (collectively, "Public Access Easement"). No gates shall be placed within the Public Access Easement nor other barriers or obstructions used to impede the use of the Public Access Easement without written consent of the City in its sole discretion; provided, however, as approved by the City in its reasonable discretion, Developer may adopt reasonable rules and regulations for use of the Public Access Easement, including adopting safety rules and curfews; and public access to the Public Access Easement may be prohibited by Developer in areas under construction on the Real Property during the course of such construction. 2. Developer hereby grants and conveys to the City, for the benefit of the City and its successors and assigns, at no cost to the City, a perpetual, non-exclusive easement in gross for emergency vehicle access and public services ingress and egress purposes over all private drives and driveways to be created upon the Real Property, as depicted on the Approved Tentative Tract Map; provided that if modifications are made in the Developer Final Tract Map to the locations of Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL 2 Por. Disp. Areas 213, 2C and 8 the emergency vehicle access and public service routes described in this Section 2, then upon recording of the Developer Final Tract Map, the emergency vehicle access and public service routes set forth on the Developer Final Tract Map shall govern and the City shall execute the Partial Termination described in Section 5 terminating the conveyances granted by this Section 2. 3. Developer hereby grants and provides to the City, for the benefit of the City and its successors and assigns, at no cost to the City, a release and relinquishment to the City of Tustin of all vehicular access rights along Swaim Way, Tustin Ranch Road, Compass Avenue, Airship Avenue, Warner Avenue and Legacy Road as the same are depicted on the Approved Tentative Tract Map, except at approved access locations and street intersections, at no cost to the City which shall be perpetual; provided that if modifications are made in the Developer Final Tract Map to the locations of the dedications and releases described in this Section 3, then upon recording of the Developer Final Tract Map, the dedications and relinquishments set forth on the Developer Final Tract Map shall govern and the City shall execute the Partial Termination described in Section 5 terminating the dedications granted by this Section 3. 4. Developer hereby grants to the City, for the benefit of the City and its successors and assigns, at no cost to the City, such other dedications in fee of required street rights -of -way; dedication of required flood control right-of-way easements, and dedication of vehicular access rights, sewer easements, and water easements defined and approved as to specific locations by the City Engineer and/or other agencies, as depicted on the Approved Tentative Tract Map; provided that if modifications are made in the Developer Final Tract Map to the locations of the dedications described in this Section 4, then upon recording of the Developer Final Tract Map, the dedications set forth on the Developer Final Tract Map shall govern and the City shall execute the Partial Termination described in Section 5 terminating the dedications granted by this Section 4. 5. Upon recording of the Developer Final Tract Map in the Official Records, the City Manager, or his or her designee, shall execute the partial termination form attached hereto as Schedule 4 ("Partial Termination"), which shall be recorded concurrently with the recordation of the Developer Final Tract Map, terminating this Covenant with respect to the Real Property as to the matters described in Paragraphs 3 and 4 of this Covenant and depicted on Schedule 2. 6. Unless expressly provided herein, the City, on behalf of itself and its successors and assigns, upon acceptance of the foregoing grants, dedications, easements and releases, agrees that any obligations by Developer to prepare, improve or otherwise alter the Real Property are as may expressly be stated in the Development Agreement, the DDA and/or Other Agreements and that this Covenant does not modify, reduce or expand such obligations. 7. This Covenant is an equitable servitude and shall be binding upon the Developer and its Successor Owners and each and every Person claiming by, through or under Developer or any Successor Owner and shall run with the Real Property for the benefit of the City and its successors and assigns in perpetuity, unless and until terminated as set forth herein. This Covenant shall be recorded in the Official Records against the Real Property. 8. This Covenant may be signed in counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one instrument. Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL 3 Por. Disp. Areas 213, 2C and 8 9. The Recitals above are incorporated herein by reference. (remainder of page blank; signatures commence on following page) Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL 4 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the Developer and City have executed this Public Access Covenant and Declaration of Easement on the date first above written. CITY OF TUSTIN: Dated: By: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City By: Amy E. Freilich Name: Aldo E. Schindler Title: City Manager DEVELOPER: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: _ Name: Title: By: _ Name: Title: Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL S-1 Por. Disp. Areas 213, 2C and 8 CERTIFICATE OF ACCEPTANCE OF DEED (City of Tustin) This is to certify that the interest in real property conveyed by the PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENTS AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE dated from to the CITY OF TUSTIN, a governmental agency, is hereby accepted by the undersigned officer on behalf of the CITY OF TUSTIN pursuant to authority conferred by Resolution No. 95- 39 of the CITY OF TUSTIN adopted on April 3, 1995, and the grantee consents to recordation thereof by its duly authorized officer; provided that this Certificate of Acceptance is not an acceptance of the Irrevocable Offer to Dedicate but merely an acceptance of the fact that the Irrevocable Offer to Dedicate has been made. Dated: Erica N. Yasuda, City Clerk Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL S-2 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co Public Access Covenant 02.11.25 (HM)(2) FINAL Signature: Signature of Notary Public Attachment 13C City of Tustin/Irvine Company S-3 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co Public Access Covenant 02.11.25 (HM)(2) FINAL Signature: Signature of Notary Public Attachment 13C City of Tustin/Irvine Company S-3 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co Public Access Covenant 02.11.25 (HM)(2) FINAL Signature: Signature of Notary Public Attachment 13C City of Tustin/Irvine Company S-3 Por. Disp. Areas 213, 2C and 8 SCHEDULEI Legal Description of Real Property THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOTS 11, 12 AND 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE MATTERS SET FORTH IN SECTION 2 OF THE QUITCLAIM DEED FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 AND COVENANTS, CONDITIONS AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471 DATED OF EVEN DATE HEREWITH AND RECORDED PRIOR TO THE RECORDING HEREOF IN THE OFFICE OF THE COUNTY CLERK RECORDER FOR ORANGE COUNTY, CALIFORNIA. FOR CONVEYANCING PURPOSES ONLY: APN'S 430-481-02, 03, 04 AND Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL Schedule 1 Por. Disp. Areas 213, 2C and 8 SCHEDULE2 Developer Tentative Tract Map [see attached] Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL Schedule 2 Por. Disp. Areas 213, 2C and 8 VESTING TENTATIVE TRACT MAP NO. 19353 TUSTIN LEGACY APARTMENT HOMES LOT 1-6 AND A LEGAL DESCRIPTION IN THE CITY OF Tus1IN. COUNTY OF ORANGE. SATE of CALIFORNIA. BEING A suaorvlsON of LOTS 11. 12.. AND 1S E N HE OF TRACTNISBETFANEBD 3D p<B, IB2 43o 4B,EAPN o4B,N D4RaBDND a D S'AID COUNTY sM OF PROJECT SITE VICINITY MAP X��eH A,G NOTES:LOT® F LEGAL DESCRIPTION nsnx �suc °rcnrc rcw :9p�'tl4, -10' 3 muxn or oxµvE, sr.Tz or uurmx wo is oacxieEo rnzuns woxos - ariiaxx. va m.P.rvr � ��j 2��' xu. ", irrasa �r,xK, vaz xEmxo° w ww,a GO LOTS LPG ` xT wTx TME xEw uExrs oo°TME cs ioaTm a o GO cooE g� LOT 2� eoiurz n mz cm or Tumx xc aexrs m uxowmouxo wrzn mwour wz xmxr or � - G gQ 0^ eER N. � � GO ww�x. �E wra, as°x�..uwxE w«o ,r�x w. wcE°1oEwurw C _ `TR.9 �T wc.o o o :.® wcExar �xia cxcw. ox TME u�..�E co �cu oxw _ _ F Af Af Cy 18187 c1 APN. A30y8j 38 LOT SUMMARY oA o LOT 0 C ?co w,a3 i. r..o-rxnMa �.ruNw uwix u.. �� _ T LEGEND LOT �R LOT 11 N _ w? _-------- "� m TRACT 18197 U M.M. 990/25,325J8 !� R. . w�sw.c s<eFa xiar a u. ax xuoxoco sxw<r xw ia�os as g' APN: 431 yyy w E BENCH MARK g `S a LOT Eo m mum 11—N eud cA-,on-n Y�i S mTuw,. wro ee�sss acu PvaEcr Nevnnorv) LOT 1 i 1 .s10 IN TIE —11 y a JJJ r,�w.EM �, ,ET win, ,tea TxE UN...k x�LL —IS WICHOINATES BEARINGS G ° wu` °u xo CITY OF T USTIN re Al='N,E®AeACTMwr ornweraNr - NEaTNO.xNNN pv MASTER VTTM ET ENTATIVETRACTM N0.79353 (14DIXe9o) CLAo5NMBEAB.CA OMBR �QNE COMrpY 'f EASEVENT DESCRIPTION ossjrr 1#044 1R010SEL EASEMENT NiATCHUME SHEET 3 mail Bills 55111111511 signal 11111111 AY ----------------- LEGEND LOT A LOT11 TRACT 18197 M.M. 990/25-38 DETAIL A APN 430481-05 LOT 2 tii LOT 1 DETAIL B 0 tiUn CITY OF TUSTIN — VTTM (LOT 11) 2 RMNENEW TEN-1 ETRACT.APNO.19353 or (w- 10-11EITM I -ES 5 on"M EASEMENT DESCRIPTION M TCHLINESHEETI AVENUE —W O A=- ---Bcw— PROPOSED EASEMENT IR � 1--.= zAffl.ldmrl M AM W o wow NOTE LEGEND 4, % <<, 01 QA "'ol I CITYOFTusTN ORAN= VTTM (LOT TENTATIVE�N0.79353 or CT N�Al T. W "ME EASEMENT DESCRIPTION r- PROPOSED EASEMENT El %=-Z VMS- MU =I "ARNER AVENUE WARNER AVENUE ©NOTE LEGEND ------------- .......... --------- ....... --- -------- LOI(D -A mA LOT 13 TRACT 18197 M 990/25-38 M.M. APN 430-081-02 & 03 ----------- --- ----------- 0 0 rR O LOT 5 ---1 ------------------------------------------------- AIRSHIPAVENUE mar MTCHLINE SHEET 3 CITY OF TUSTIN 111—IRTIENT111111 11 11 N VTTM (LOT 13) 4 TIN—WIT.T—N..193W of —ENT- COMAVENUE PASS CL RW rn MUON SEUION COMPASS AVEMIE CL R/W IM Ph 10 SECTION LOT UK agON WARNER AVENUE R/W CL Ph —, a7-z SECTION —M — . AIRSHIP w Lz v CL Rc SECTION LOT I—m. ar SECTIONT AVENUE CL R/W SECTION H WARNER AN R/TI m wt SECTION WMM WAY R/W R 2ZW ww mt MUON IUSfIN RANCH ROAD CL R/W Fa- SEUION ROAD R/W CL Pet SECTION UN LHE SECTION SCHEDULE3 Description and Depiction of Publicly Accessible Common Area [see attached] Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL Schedule 3 Por. Disp. Areas 213, 2C and 8 SCHEDULE 3 - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS i rzrrFnin 9 T PROPERTY COMMON AREA *LANDSCAPE AREA TO BE MAINTAINED BY DEVELOPER ,� OE E N G I N E E R I N G TUSTIN RANCH RD. N W W 2 U) W W El SCALE: 1"=80' SHEET 1 OF 5 TUSTIN LEGACY APARTMENT HOMES SCHEDULE 3 - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS i r�rnir� TUSTIN RANCH RD. Ao RLS W�E E N G I N E E R I N G PROPERTY COMMON AREA *LANDSCAPE ♦ 1 TO BE MAINTAINED BY DEVELOPER SCALE: ill =80' SHEET 2 OF 5 TUSTIN LEGACY APARTMENT HOMES SCHEDULE 3 - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS PEEBLE WAY w D z w Q U) U) a 75 O U LEGEND PROPERTY COMMON PUBLICLY ACCESSIBLE - *LANDSCAPE AREA TO BE MAINTAINED BY DEVELOPER ,� OE E N G I N E E R I N G SEE SHEET 4 BUILDING 3 LOT 12 Z 1 W 1 a SCALE 1"=80' SHEET 3 OF 5 9 T TUSTIN LEGACY APARTMENT HOMES SCHEDULE 3 - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS co SAX 0� 0 I � 1 BUILDING 4 LOT 12 I / 1 / v I � PEEBLEJ WAY SEE SHEET 3 LEGEND - - - - PROPERTY LINE PUBLICLY ACCESSIBLE COMMON AREA *LANDSCAPE AREA TO BE MAINTAINED BY DEVELOPER it SCALE: rl )RLGCm 1„=80' E N G I N E E R I N G SHEET 4 OF 5 T a a a 0 v TUSTIN LEGACY APARTMENT HOMES SCHEDULE 3 - PUBLICLY ACCESSIBLE COMMON AREA LOCATIONS WARNER AVENUE - r _ EXISTING BIOSWALE & ROCK WALL TO BE MAINTAINED BY CITY OF TUSTIN I I I I I II I I w BUILDING 6 I m z I D � o I n Q c/) Qo � I � I p I LOT 13 U I I I I BUILDING 5 i I I I -- -- -- - -- -- -- AIRSHIP AVENUE LEGEND SEE SHEET 4 — - - — PROPERTY LINE PUBLICLY ACCESSIBLE COMMON AREA *LANDSCAPE AREA TO BE MAINTAINED BY DEVELOPER ALE: SC fl'�OA�oRLOCm �., _ $o E N G I N E E R I N G SHEET 5 OF 5 9 T TUSTIN LEGACY APARTMENT HOMES SCHEDULE 4 Form of Partial Termination of Covenant CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE §6103 AND §27383. RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City Manager The City of Tustin 300 Centennial Way Tustin, California 92780 Space Above This Line Reserved for Recorder's Use PARTIAL TERMINATION OF PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENTS AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE THIS PARTIAL TERMINATION OF PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENTS AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE ("Partial Termination") is made this day of , 20_, by the City of Tustin ("City"), in favor of TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company ("Developer"). A. On Developer, or its predecessor -in -interest, recorded as Instrument No. that certain Public Access Covenant and Declaration of Easements and Dedications and Irrevocable Offer to Dedicate ("Covenant") in the office of the County Clerk Recorder for Orange County, California, Official Records of Orange County, California ("Official Records"). B. Final Tract Map No. 19353 ("Developer Final Tract Map") has now been recorded in the Official Records {add recording information) and accordingly, pursuant to the terms of the Covenant, the City has agreed to execute this Partial Termination in order to release the grant of easements and dedications as described in Sections 3 and 4 the Covenant and as depicted on the Approved Tentative Tract Map. C. All capitalized terms not otherwise defined herein shall have the meaning given to them in the Covenant. Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL Schedule 4 Por. Disp. Areas 213, 2C and 8 NOW THEREFORE, the City and Developer hereby agree as follows: 1. Partial Termination. The provisions of Paragraphs 2, 3 and 4 of the Covenant are hereby terminated and shall be of no further force or effect as to the Real Property and the easements and dedications identified in such paragraphs are hereby superseded by the Developer Final Tract Map. Nothing in this Partial Termination shall modify, affect, terminate or void the dedication of easements or the provision of offers to dedicate established by the Developer Final Tract Map. 2. No Other Changes. Except as specifically set forth in this Partial Termination, the terms of the Covenant shall remain unmodified and in full force and effect. Only those provisions of the Covenant specifically terminated herein shall be affected by this Partial Termination. 3. Recordation; Successors and Assigns. This Partial Termination shall be recorded in the Official Records against the Real Property, and is binding on and inures to the benefit of City and Developer, and their respective successors and permitted assigns. 4. Counterparts. This Partial Termination may be signed in counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one instrument. 5. Recitals. The Recitals above are incorporated herein by reference. {signature page follows} Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL Schedule 4 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the City and Developer have executed this Termination of Public Access Covenant and Declaration of Easements and Dedications and Irrevocable Offer to Dedicate on the date first above written. Dated: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City IN Amy E. Freilich CITY OF TUSTIN: Name: Title: DEVELOPER: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co Public Access Covenant Attachment 13C City of Tustin/Irvine Company 02.11.25 (HM)(2) FINAL Schedule 4 Por. Disp. Areas 2B, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co Public Access Covenant 02.11.25 (HM)(2) FINAL Signature: Signature of Notary Public Attachment 13C City of Tustin/Irvine Company Schedule 4 Por. Disp. Areas 213, 2C and 8 4 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co Public Access Covenant 02.11.25 (HM)(2) FINAL Signature: Signature of Notary Public Attachment 13C City of Tustin/Irvine Company Schedule 4 Por. Disp. Areas 213, 2C and 8 5 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co Public Access Covenant 02.11.25 (HM)(2) FINAL Signature: Signature of Notary Public Attachment 13C City of Tustin/Irvine Company Schedule 4 Por. Disp. Areas 213, 2C and 8 6 ATTACHMENT 14A FORM OF GUARANTY This GUARANTY (this "Guaranty") is made as of the day of , 202_ (the "Effective Date"), by TIC ACQUISITION AND DEVELOPMENT LLC, a Delaware limited liability company ("Guarantor"), in favor of the CITY OF TUSTIN, a municipal corporation of the State of California ("City"). RECITALS A. TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company ("Developer") and City have entered into that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of 202_, including all Attachments thereto (as the same may be amended, updated or modified from time to time, the "DDA") under which Developer has acquired certain real property as more particularly described in the DDA ("Real Property") and certain additional rights that together with the Real Property comprise the Property (as defined in the DDA, the "Property"). Initially capitalized terms used and not otherwise defined in this Guaranty are used with the meanings set forth in the DDA. B. Pursuant to the DDA, Developer has agreed to bear responsibility for the design, development, construction and operation of the Market Rate Project and the Affordable Project. C. Pursuant to the terms of the DDA, Developer has the right under certain circumstances to enter into a Lot 13 Transfer with an Affordable Housing Developer approved by City for the purpose of allowing Affordable Housing Developer to carry out the design, development, construction and operation of the Affordable Project; but no such Lot 13 Transfer will relieve Developer from any of the Affordable Project Provisions or the Affordable Project Obligations. D. Guarantor indirectly owns 100% of Developer and thus will derive direct and substantial benefits from Developer owning the Property and the development of the Project. Guarantor will also derive direct and substantial benefits by guaranteeing Developer's obligations to undertake the actions with respect to the Property required of Developer under the DDA and the Other Agreements, including with respect to the Affordable Project, inasmuch as City would not have consented (1) to the Lot 13 PDA or the provisions of the DDA relating to a Lot 13 Transfer in the absence of Developer and Guarantor retaining primary responsibility for the Affordable Project Provisions and the Affordable Project Obligations or (2) the number of Market Rate Units to be constructed as part of the Market Rate Project in the absence of the density bonus made available from the development of the Affordable Project. AGREEMENT As required by the terms of the DDA, and in consideration of the benefits to Guarantor described above, Guarantor hereby makes the guaranties, obligations, covenants and agreements set forth below in this Guaranty. Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 1 Por. Disp. Areas 2B, 2C and 8 Section 1. Guaranty. 1.1 Payment and Performance Obligations. Guarantor absolutely and unconditionally guarantees (a) the payment when due by Developer of all payment obligations of Developer under the DDA and the Other Agreements (the "Payment Obligations") and (b) the performance (whether for construction, Completion, maintenance, operation or otherwise) when due by Developer of all obligations of Developer under the DDA and the Other Agreements before the date provided in the Schedule of Performance or otherwise in the DDA and the Other Agreements (the "Performance Obligations"); provided that the Payment and Performance Obligations shall not include the operation or maintenance of any Building on a Parcel for which a Certificate of Compliance has been Recorded by City. Collectively the Payment Obligations and the Performance Obligations are referred to as the "Payment and Performance Obligations." 1.2 Payment of Enforcement Costs. In addition to its obligations under Section 1_1, Guarantor agrees to pay all costs and expenses incurred by City, including reasonable attorneys' fees and costs, court costs and all other litigation expenses (including reasonable expert witness fees, costs of depositions and other discovery, travel expenses, exhibit preparation, and courier, postage, communication and document copying expenses), in enforcing this Guaranty (the "Enforcement Payment Obligations"). The provisions of this Section 1.2 shall survive the termination of this Guaranty. 1.3 Performance of Work. Any work required for Guarantor to satisfy the Payment and Performance Obligations: (a) shall be performed in accordance with the Scope of Development and within the time periods set forth in the Schedule of Performance all as and to the extent set forth in the DDA and the Other Agreements and in accordance with the other requirements set forth in the DDA and the Other Agreements; and (b) shall be diligently pursued by Guarantor to Completion of the Project and issuance of a Final Certificate of Compliance. 1.4 Guaranteed Obligations. "Guaranteed Obligations" means, collectively, the Payment and Performance Obligations and the Enforcement Payment Obligations. For the avoidance of doubt, the obligations described in the definitions of Payment and Performance Obligations and Enforcement Payment Obligations are included within the definition of the term "Guaranteed Obligations" regardless of any duplication in the obligations described in such definitions, and whether the character of such obligations could be described as for payment, performance, or both. Section 2. Performance of Payment and Performance Obligations upon Default by Developer. 2.1 Default by Developer. If Developer is in Material Default under the DDA for any reason, including for failure to commence or prosecute the development of the Project in accordance with the Schedule of Performance or the Scope of Development, then City may, but shall not be obligated to, deliver written notice to Guarantor (a "Guaranty Notice"), notifying Guarantor of such default. Guarantor, promptly after receipt of the Guaranty Notice, shall perform the Payment and Performance Obligations and the Enforcement Payment Obligations that are the Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 2 Por. Disp. Areas 2B, 2C and 8 subject of the Guaranty Notice. Guarantor shall take whatever actions maybe necessary to perform the Guaranteed Obligations, including the following: (a) Diligently and expeditiously proceed to ensure the Completion of the Project at Guarantor's sole cost and expense, at the times set forth in the DDA and in accordance with the Schedule of Performance and subject to the other terms and conditions set forth in the DDA and the Other Agreements; (b) To the extent unpaid, fully pay and discharge all Development Costs incurred or required to be incurred in connection with the Completion of the Project; and (c) Pay any amounts necessary to release and discharge any mechanics', material providers', or other liens that may exist or come into existence in connection with all or any of the Real Property, the Project, and the Completion of the Improvements, or, in the alternative, contest the same subject to the terms and conditions set forth in the DDA. 2.2 Difficulty or Expense of Completion of the Project Does Not Excuse Guarantor or Guaranty. Guarantor's obligations under this Guaranty will remain in full force and effect until all of the Guaranteed Obligations are fully and finally paid and performed, regardless of any Lot 13 Transfer or any other Transfer and regardless of whether Completion of the Project is difficult, more expensive than originally intended, or involves any event or circumstance that would make the Completion of the Project more costly or would delay the Completion of the Project, including: (a) a casualty that affects the Real Property or any Project Improvements that may have been constructed; (b) the discovery of unanticipated soils conditions or Hazardous Materials in, on, or under the Real Property; (c) Governmental Requirements or court orders applicable to the Project; (d) any lack of debt or equity financing for Development Costs; (e) any change in market conditions, (f) any failure by Developer to enter into an Approved Ground Lease, whether by determination of Developer or otherwise, (g) any failure or refusal on the part of the Affordable Housing Developer to fully and timely perform its obligations under the Lot 13 PDA or any Approved Ground Lease, and (h) other events or circumstances beyond the control of Developer or Guarantor relating to the Project. 2.3 No Discharge Until Completion. It is the intent of Guarantor and City that the obligations and liabilities of Guarantor hereunder are absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally performed, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Subject to the provisions of Section 18, the Guaranteed Obligations shall be deemed to be fully and finally performed for purposes of this Guaranty and this Guaranty shall terminate only on the date on which the Final Certificate of Compliance has been recorded by City; provided that (a) the Guaranteed Obligations with respect to any Parcel comprising a portion of Lot 13 and the Affordable Project shall be deemed to be fully and finally performed for purposes of this Guaranty and this Guaranty shall terminate with respect to the Guaranteed Obligations for such Parcel of Lot 13 and the portion of the Affordable Project located thereon only on the date on which the Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 3 Por. Disp. Areas 2B, 2C and 8 Affordable Project Certificate of Compliance for such Parcel of Lot 13 has been Recorded by City and (b) the Guaranteed Obligations in respect of Developer's indemnity for Claims for violations of SLA Regulations as described in clause (viii) of Section 10.1 of the DDA shall terminate only upon termination of the Special Restrictions as to the whole of the Real Property. Section 3. Absolute, Irrevocable and Unconditional Guaranty. 3.1 Irrevocable Guaranty. This Guaranty is an absolute, irrevocable and unconditional guaranty of payment and performance. This Guaranty shall be effective as a waiver of, and Guarantor hereby expressly waives, any right to which Guarantor may otherwise have been entitled, whether now existing under statute, at law or in equity, or arising under any statute enacted after the date hereof or arising under any doctrine of law or equity promulgated after the date hereof to require City to take prior recourse or proceedings against any collateral, security or Person. It shall not be necessary for City, in order to enforce such payment or performance by Guarantor, to first institute suit or pursue or exhaust any rights or remedies against Developer or any other Person liable on such indebtedness or for such performance, or to enforce any rights against any security given to secure such indebtedness or performance, or to join any other Person liable for the performance of the Guaranteed Obligations or any part thereof in any action to enforce this Guaranty, or to resort to any other means of obtaining performance of the Guaranteed Obligations. 3.2 Demand Aizainst Guarantor. City may bring suit or make a demand against Developer or against Guarantor or any other parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Obligations, or against any one or more of them, separately or together, without impairing the rights of City against Guarantor. 3.3 Independent Guaranty. The obligations of Guarantor under this Guaranty are independent of, and in addition to, the obligations and liabilities of Developer under the DDA and the Other Agreements. This Guaranty is independent of (and shall not be limited by) any other guaranty now existing or hereafter given by Guarantor, or any other Person, under or in connection with the Property, the Improvements, the DDA or the Other Agreements. The liability of Guarantor under this Guaranty is in addition to any and all other liability Guarantor may have in any other capacity with respect to Developer, including, if applicable, any direct or indirect ownership or control of any debt or equity securities of Developer or any Controlling Person of Developer. Section 4. Certain Agreements and Waivers by Guarantor. 4.1 Waivers. Guarantor agrees that (a) neither City's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, (b) Guarantor waives any rights, claims or defenses arising from any one or more of such events, actions, facts, or circumstances, and (c) the liability of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of any one or more of - Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 4 Por. Disp. Areas 2B, 2C and 8 (a) any limitation on the liability of, or recourse against, any other Person, including City, in the DDA or any of the Other Agreements or arising under any law; (b) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Developer under the DDA or the Other Agreements; (c) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; (d) any homestead exemption or any other exemption under applicable law; (e) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, or any impairment of Guarantor's recourse against any Person or collateral; (f) whether express or by operation of law, any partial release of the liability of Guarantor hereunder (except to the extent expressly so released in writing by City with respect to this Guaranty) or any complete or partial release of Developer or any other Person liable, directly or indirectly, for the performance of any or all of the Guaranteed Obligations; (g) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Developer or any other Person at any time liable for the performance of any or all of the Guaranteed Obligations; (h) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Guarantor or its successors or assigns; (i) either with or without notice to or consent of Guarantor, any renewal, extension, modification, supplement, subordination or rearrangement of any or all of the terms of the Guaranteed Obligations or the DDA or any of the Other Agreements or any other agreements that may have been executed by Developer, City or any third party affecting the obligations of Developer or City under the DDA, or performance (including changes with respect to the construction of the Improvements) of any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the DDA, the Other Agreements, any other agreements that may have been executed by Developer, City or any third party affecting the obligations of Developer or City under the DDA, the Other Agreements or any other guaranty of Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 5 Por. 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Areas 2B, 2C and 8 any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by City to Developer or to any other Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations; 0) any neglect, lack of diligence, delay, omission, failure, or refusal of City to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting), or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations; (k) any failure of City to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the DDA or any of the Other Agreements or any of the Guaranteed Obligations or any part thereof (or any other agreement relating in any way to the Property or the Guaranteed Obligations), or of any release of or change in any security, or of the occurrence or existence of any Material Default, or of any other action taken or refrained from being taken by City against Developer or any security or other recourse, or of any new agreement between City and Developer, it being understood that, except as expressly set forth in this Guaranty, City shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to other notice Guarantor may have otherwise had being hereby waived by Guarantor, and except for any notices expressly required to be delivered to Guarantor under this Guaranty, Guarantor shall be responsible for obtaining for itself information regarding Developer and any collateral, including any changes in the business or financial condition of Developer or any collateral, and Guarantor acknowledges and agrees that City shall have no duty to notify Guarantor of any information which City may have concerning Developer or any collateral; (1) the existence of any claim, counterclaim, set-off or other right that Guarantor may at any time have against Developer, or any other Person (except City), whether or not arising in connection with this Guaranty, the DDA, or any of the Other Agreements; (m) the unenforceability of all or any part of the Guaranteed Obligations against Developer, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury or other law (subject to the provisions of Section 12), or because the Persons creating the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in the DDA or the Other Agreements, or because Developer has any valid defense, claim or offset with respect thereto, or because Developer's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether Developer or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Developer or any other Person in any action to obtain payment or performance of any or all of the Guaranteed Obligations); Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 6 Por. 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Areas 2B, 2C and 8 (n) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to Developer or any other Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by City, or any action taken or omitted by City in any such proceedings, including any election to have City's claim allowed as being secured, partially secured or unsecured, any extension of credit by City in any such proceedings or the taking and holding by City of any security for any such extension of credit; (o) any other condition, event, omission, action that would in the absence of the provisions of this Section 4 result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement; (p) except as provided in this Guaranty, any notice to Guarantor of the existence of or the extending to Developer of any grace or cure period for the performance of any of the Guaranteed Obligations or any failure to provide notice thereof, (q) any defense of waiver, release, discharge in res judicata, statute of frauds, fraud, or ultra vires acts that may be available to Developer in respect of the DDA or any of the Other Agreements; (r) to the fullest extent permitted by law: (A) any defense arising as a result of City's election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (B) without limiting the generality of any other provision hereof, all rights and benefits that might otherwise be available to Guarantor under any guarantor, suretyship or other defenses under any law of the State of California or otherwise (including California Civil Code Sections 2787 through 2855, inclusive, 2899 and 3433); including any rights of subrogation, reimbursement, indemnification, or contribution and any other rights and defenses that are or may become available to Guarantor by reason of such provisions of the California Civil Code; (s) the benefit of any statute of limitations affecting the liability of the Developer under the DDA or any of the Other Agreements; (t) any other circumstance that might otherwise constitute a defense available to, or a discharge of, Developer in respect of the Guaranteed Obligations or Guarantor in respect of this Guaranty; and (u) any early termination of any of the Guaranteed Obligations, except as expressly agreed to in writing by City, it being agreed that, among other things, that Guarantor shall be obligated to pay all costs and expenses incurred by City in its exercise of its rights under Sections 16.3 and 16.4 of the DDA. 4.2 Additional Waivers. Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 7 Por. Disp. Areas 2B, 2C and 8 4.2.1 Without limiting any of the waivers contained in Section 4.1, Guarantor waives all rights and defenses that Guarantor may have because some or all of Developer's obligations may be, or may be deemed to be, secured by real property (although Guarantor acknowledges that as of the Effective Date the Guaranteed Obligations are not secured by any real property). This means, among other things: (a) City may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Developer. (b) If City forecloses on any real property collateral pledged by Developer: (i) the amount of the obligation owed to City may be reduced only by the net price for which that collateral is sold at the foreclosure sale or proceedings, even if the collateral is worth more than the sale price and (ii) City may collect from Guarantor even if City, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from the Developer. This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have because the Guaranteed Obligations may be, or may be deemed to be, secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580a, 580d, or 726 of the California Code of Civil Procedure. 4.2.2 Without limiting any of the waivers contained in Section 4.1, Guarantor hereby waives any rights it might otherwise have had to assert any defense based upon rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to Guarantor or that Guarantor may have in respect of his or her obligations as a guarantor by reason of Sections 2787 to 2855, inclusive, as well as Sections 2899 and 3433 of the California Civil Code or by reason of any election of remedies by the creditor. 4.2.3 Guarantor also hereby waives any rights or defenses Guarantor may otherwise have had in respect of Guarantor's obligations as a guarantor or other surety by reason of any election of remedies by City, as well as any rights or defenses Guarantor may otherwise have had because Developer's obligations may be or may be deemed to be secured by real property or an estate for years (although Guarantor acknowledges that as of the Effective Date the Guaranteed Obligations are not so secured). These waived rights or defenses include, but are not limited to, any rights or defenses that are based upon, directly or indirectly, the application of Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure to the principal's note or other obligation. 4.2.4 Also, without limiting the generality of any other waiver or provision contained in this Guaranty, Guarantor hereby waives any and all benefits and defenses under California Civil Code Sections 2899 and 3433, Chapter 2 of Title 14 of the California Civil Code and California Commercial Code Section 3605. 4.3 Preferences. In the event any payment by Developer or any other Person to City is held to constitute a preference, fraudulent transfer or other voidable payment under any Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 8 Por. Disp. Areas 2B, 2C and 8 bankruptcy, insolvency or similar law, or if for any other reason City is required to refund such payment or pay the amount thereof to any other Person, such payment by Developer or any other Person to City shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by City of this Guaranty or of Guarantor or the prior expiration of this Guaranty), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by City or paid by City to another Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by City and any attorneys' fees, costs and expenses paid or incurred by City in connection with any such event. 4.4 Defenses. Guarantor waives all rights and defenses arising out of an election of remedies by City, including exercise by City of its Right of Reversion upon occurrence of a Reversion Event or a repurchase of the Property pursuant to City's Right of Purchase, even though such election of remedies may have destroyed such Guarantor's rights of subrogation and reimbursement against Developer by operation of California Code of Civil Procedure Section 580d or otherwise. 4.5 Anti -Deficiency Waivers. Should the Guaranteed Obligations ever become secured by real property, Guarantor waives (a) any defenses Guarantor may have by reason of an election of remedies by City, and (b) any rights or defenses Guarantor may have by reason of protection afforded to Developer with respect to the Guaranteed Obligations pursuant to the anti -deficiency or other laws of California limiting or discharging Developer's obligations, including California Code of Civil Procedure Sections 580a, 580b, 580d or 726. 4.6 Waiver of Notice of Acceptance. Guarantor waives notice of acceptance of this Guaranty. 4.7 No Limitation on Waivers. No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor. Section 5. Subordination. If, for any reason whatsoever, Developer is now or hereafter becomes indebted, directly or indirectly to Guarantor including by operation of California Civil Code Sections 2847 and 2848, or any successor statutes or similar law (any such indebtedness being referred to as the "Subordinated Debt"): (a) The Subordinated Debt and all interest thereon and all liens, security interests and rights now or hereafter existing with respect to property of any Developer securing the Subordinated Debt shall, at all times, be subordinate in all respects to the Guaranteed Obligations and to all liens, security interests and rights now or hereafter existing to secure the Guaranteed Obligations, until the Guaranteed Obligations have been paid or performed in full; and Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 9 Por. Disp. Areas 2B, 2C and 8 (b) In the event of receivership, bankruptcy, reorganization, arrangement or other debtor relief or insolvency proceedings involving Developer as debtor, City shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and shall have the right to receive directly from the receiver, trustee or other custodian, dividends and payments that are payable upon any obligation of Developer to Guarantor now existing or hereafter arising, and to have all benefits of any security therefor, until the Guaranteed Obligations have been fully and finally performed; and (c) Guarantor shall promptly upon request of City from time to time execute such documents and perform such acts as City may require to evidence and perfect its interest and to permit or facilitate exercise of its rights under this Section 5, including execution and delivery of proofs of claim, further assignments and security agreements, and delivery to City of copies of any promissory notes or other instruments evidencing indebtedness of Developer to Guarantor. All promissory notes, accounts receivable ledgers or other evidence now or hereafter held by Guarantor of obligations of Developer to Guarantor shall contain a specific written notice thereon that the indebtedness evidenced thereby is subordinated under and is subject to the terms of this Guaranty; and (d) If, notwithstanding the foregoing provisions in this Section 5, following Developer's default under the terms of the DDA, Guarantor should receive any payment, claim or distribution that is prohibited as provided above in this Section 5, Guarantor shall pay the same to City immediately, Guarantor hereby agreeing that it shall receive the payment, claim or distribution from Developer in trust for City and shall have absolutely no dominion over the same except to pay it immediately to City. Section 6. Other Liability of Guarantor or Developer. 6.1 Other Liability. If Guarantor is or becomes liable, by endorsement or otherwise, for any indebtedness owing by Developer to City other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby, and the rights of City hereunder shall be cumulative of any and all other rights that City may have against Guarantor. If Developer is or becomes obligated to City for any liabilities or indebtedness other than or in excess of the Guaranteed Obligations, any payment received or recovery realized upon such other liabilities or indebtedness of Developer to City may be applied by City to such other liabilities or indebtedness. 6.2 Other Representations and Covenants. Guarantor hereby covenants, represents and warrants to and for the benefit of City as follows: (a) Guarantor shall maintain sufficient Net Worth and Liquid Assets to fully discharge its obligations under this Guaranty. As of the Effective Date, Guarantor has, and until the termination of this Guaranty in accordance with Section 2.3 shall maintain, a Net Worth and Liquid Assets of not less than the Minimum Asset Standards, each as determined on the last day of each fiscal quarter of Guarantor (ending June 30, September 30, December 31, and March 31; each a "Fiscal Quarter"). Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 10 Por. Disp. Areas 2B, 2C and 8 (b) Prior to Developer's execution of the DDA, Guarantor has made available to City (under the terms of Section 18.24.2 of the DDA) a true and complete copy of the then most recent rating action letter (the "Fitch Letter") delivered by Fitch Ratings, Inc. ("Fitch") to Guarantor with respect to Guarantor's long-term indebtedness. Prior to the execution of this Guaranty, Guarantor fully and fairly advised Fitch of Guarantor's obligations under this Guaranty and has either (x) delivered to City true and complete copies correspondence from Guarantor to Fitch, fully and fairly advising Fitch of Guarantor's obligations under this Guaranty and requesting a confirmation from Fitch that there has been no reduction in rating of any long-term indebtedness of Guarantor since the date of the Fitch Letter, together with a certificate from the chief financial officer or treasurer of Guarantor, certifying to City that such correspondence has been provided to Fitch at least fifteen (15) days prior to the date of the certificate and that Fitch has not responded or (y) has made available to City (under the terms of Section 18.24.2 of the DDA) correspondence from Fitch demonstrating that, since the date of the Fitch Letter, there has been no reduction in rating of any long-term indebtedness of Guarantor. None of the long-term indebtedness that is the subject of the Fitch Letter is guaranteed by any person or entity that has a direct or indirect ownership interest in Guarantor, The Irvine Company LLC, or The Irvine Land Company LLC (each of the latter two entities is referred to as a "Major Guarantor Affiliate"). (c) Within thirty (30) calendar days following the end of each Fiscal Quarter, Guarantor shall deliver to City a certificate made by the chief financial officer or treasurer of Guarantor (each such certificate, a "Quarterly Certificate"), in form reasonably satisfactory to City, to the effect that Guarantor has satisfied the Minimum Asset Standards as of the last day of the immediately preceding calendar quarter. If, as of the end of the Fiscal Quarter with respect to which a Quarterly Certificate is issued, any of Guarantor's long-term indebtedness is rated by Fitch or any other nationally recognized debt rating service, the Quarterly Certificate shall also certify either that (x) a true and complete copy of the most recent rating action letter provided by Fitch or such other rating service has been made available to the City (under the terms of Section 18.24.2 of the DDA), or (y) no such rating action letter has been issued since the last rating action letter included in a Quarterly Certificate. (d) If a Guarantor Insolvency Event shall occur or if Guarantor fails to timely comply with any of the requirements set forth in this Section 6.2 or if any Quarterly Certificate or any representation made in, or any certification made in accordance with, Section 6k 2 shall be materially false or misleading (each, a "Guarantor Illiquidity Event"), Guarantor shall notify City in writing within five (5) Business Days following Guarantor's knowledge that a Guarantor Illiquidity Event has occurred. As used in the immediately preceding sentence, the term "Guarantor Insolvency Event" means any of the following: (i) If Guarantor or either Major Guarantor Affiliate is or becomes bankrupt or insolvent or if any involuntary bankruptcy proceeding is brought against Guarantor or either Major Guarantor Affiliate (unless, in the case of an involuntary bankruptcy proceeding brought against any of them, the same is dismissed within ninety (90) calendar days), or Guarantor or either Major Guarantor Affiliate makes an assignment for the benefit of creditors, or institutes a proceeding under or otherwise seeks the protection of federal or State bankruptcy or insolvency laws, including the filing of a Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 11 Por. Disp. Areas 2B, 2C and 8 petition for voluntary bankruptcy or instituting a proceeding for reorganization or arrangement; (ii) If a writ of attachment or execution is levied on any property of Guarantor or either Major Guarantor Affiliate and such writ is not discharged within ninety (90) calendar days; or (iii) If, in any proceeding or action in which Guarantor or either Major Guarantor Affiliate is a party, a receiver is appointed with authority to take possession of any property of Guarantor or such Major Guarantor Affiliate, or any portion thereof, where possession is not restored to Guarantor or such Major Guarantor Affiliate within ninety (90) calendar days. The occurrence of a Guarantor Illiquidity Event, whether or not Developer shall have provided notice to City of the Guarantor Illiquidity Event, shall constitute a default under this Guaranty, following which City shall have the right, but not the obligation, to treat the Guarantor Illiquidity Event as a Material Default by Developer under the DDA; provided that, in the case of a Guarantor Illiquidity Event arising from the failure of Guarantor to timely deliver a Quarterly Certificate, no Material Default shall exist as a consequence thereof under the DDA unless City shall first have provided notice of such failure to Guarantor and Guarantor shall not have cured such failure within ten (10) Business Days following the giving of such notice. (e) Within thirty (30) calendar days following the provision of notice by Guarantor or Developer to City or by City to Developer and Guarantor of the occurrence of a Guarantor Illiquidity Event constituting a failure to satisfy the Minimum Asset Standards, Guarantor shall supplement its Net Worth and Liquid Assets to meet the Minimum Asset Standards or shall provide additional security satisfactory to City. Failure of Guarantor to comply with the requirements of the immediately preceding sentence within such thirty- (30-) calendar day period shall be a default under this Guaranty. Section 7. City Assigns. This Guaranty is for the benefit of City and City's successors and assigns, and in the event of an assignment of the Guaranteed Obligations, or any part thereof, the rights and benefits hereunder, to the extent applicable to the Guaranteed Obligations so assigned, may be transferred with such Guaranteed Obligations. Guarantor waives notice of any transfer or assignment of the Guaranteed Obligations or any part thereof. Section 8. Binding Effect; Successors and Assigns. This Guaranty is binding not only on Guarantor, but also on Guarantor's successors and assigns. Guarantor covenants and agrees that it will not attempt to assign or delegate any of its obligations under this Guaranty without the prior written consent of City, which may be withheld by City in its sole and absolute discretion. Any attempt to assign or delegate any of Guarantor's obligations under this Guaranty without City's prior written approval in City's sole discretion shall not operate as a release of Guarantor of any of its obligations. Guarantor further covenants and Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 12 Por. Disp. Areas 2B, 2C and 8 agrees that any sale or transfer or any attempted sale or transfer of assets or undertaking any other transaction that would reasonably be expected to reduce the Net Worth or Liquid Assets of Guarantor to less than the Minimum Asset Standards will constitute a default under this Guaranty and will also constitute a Material Default by Developer under the DDA. Section 9. Governing Law. The validity, enforcement, and interpretation of this Guaranty shall for all purposes be governed by and construed in accordance with the laws of the State of California (without regard to its conflicts of law principles) and applicable United States federal law, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. Guarantor and City agree that any disputes arising between them in connection with this Guaranty or in connection with or under any instrument, agreement or document provided for or contemplated by this Guaranty, including in connection with the execution of this Guaranty, the Guaranteed Obligations or any other matter arising under, related to or in connection with this Guaranty (including a determination of any and all issues in such dispute, whether of fact or of law) shall be tried and litigated exclusively in the Superior Court of the County of Orange, State of California, in any other appropriate court of that county, or in the United States District Court for the Central District of California. This choice of venue is intended by Guarantor and City to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between or among Guarantor and City with respect to or arising out of this Guaranty in any jurisdiction other than that specified in this Section 9. Each party hereby waives any right that it may have to assertforum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section 9, and stipulates that the State and federal courts located in the County of Orange, State of California, shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or proceeding arising out of this Guaranty. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Section 9 by means of registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Guaranty, or in the manner set forth below for notices. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. Section 10. Invalidity of Certain Provisions. If any provision of this Guaranty or the application thereof to any Person or circumstance shall, for any reason and to any extent, be declared to be invalid or unenforceable, neither the remaining provisions of this Guaranty nor the application of such provision to any other Person or circumstance shall be affected thereby, and the remaining provisions of this Guaranty, or the applicability of such provision to other Persons or circumstances, as applicable, shall remain in effect and be enforceable to the maximum extent permitted by applicable law. Section 11. Costs and Expenses of Enforcement. Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 13 Por. Disp. Areas 2B, 2C and 8 Guarantor agrees to pay to City within fifteen (15) calendar days after written demand all costs and expenses incurred by City in seeking to enforce City's rights and remedies under this Guaranty, including court costs, costs of alternative dispute resolution and reasonable attorneys' fees, whether or not suit is filed or other proceedings are initiated hereon. All such costs and expenses incurred by City shall constitute a portion of the Guaranteed Obligations hereunder, shall be subject to the provisions hereof with respect to the Guaranteed Obligations and shall be payable by Guarantor. In the event of any suit or proceeding to adjudicate or resolve any dispute in connection with this Guaranty, the Prevailing Party shall be entitled to recover its reasonable attorneys' fees which shall be payable at the actual contractual hourly rate for City's litigation counsel at the time the fees were incurred, but, in no event more than $200 per hour and costs, court costs and all other litigation expenses (including reasonable expert witness fees, costs of depositions and other discovery, travel expenses, exhibit preparation, and courier, postage, communication and document copying expenses). Section 12. No UsM. It is not the intention of City or Guarantor to obligate Guarantor to pay interest in excess of that lawfully permitted to be paid by Guarantor under applicable law. Should it be determined that any portion of the Guaranteed Obligations or any other amount payable by Guarantor under this Guaranty constitutes interest in excess of the maximum amount of interest that Guarantor, in its capacity as guarantor, may lawfully be required to pay under applicable law, the obligation of Guarantor to pay such interest shall automatically be limited to the payment thereof in the maximum amount so permitted under applicable law. The provisions of this Section shall override and control all other provisions of this Guaranty and of any other agreement between Guarantor and City. Section 13. Representations, Warranties, and Covenants of Guarantor. Until the Guaranteed Obligations are performed in full and each and every term, covenant and condition of this Guaranty is fully performed, Guarantor hereby represents, warrants, and covenants that: (a) Guarantor will derive a material and substantial benefit, directly or indirectly, from the development of the Project and from the making of this Guaranty by Guarantor, either from a financial interest in Developer or otherwise; (b) this Guaranty is duly authorized and valid, and is binding upon and enforceable against Guarantor subject to the effect of bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and limitations imposed by general principles of equity and applicable law; (c) Guarantor is not, and the execution, delivery and performance by Guarantor of this Guaranty will not cause Guarantor to be, in violation of or in default with respect to any law or in default (or at risk of acceleration of indebtedness) under any agreement or restriction by which Guarantor is bound or affected; (d) Guarantor is duly organized, validly existing, and in good standing under the laws of the state of its organization and has full power and authority to enter into and perform this Guaranty; (e) except as may have been previously disclosed to City in writing, there is no litigation pending or, to the knowledge of Guarantor, threatened by or before any tribunal against or affecting Guarantor that would have a material adverse impact on Guarantor's ability to perform its obligations hereunder; (f) all financial statements and information heretofore furnished to City Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 14 Por. Disp. Areas 2B, 2C and 8 by Guarantor do, and all financial statements and information hereafter furnished to City by Guarantor will, fully and accurately present the condition (financial or otherwise) of Guarantor as of their dates and the results of Guarantor's operations for the periods therein specified, and, since the date of the most recent financial statements of Guarantor heretofore furnished to City, no material adverse change has occurred in the financial condition of Guarantor, nor, except as heretofore disclosed in writing to City, has Guarantor incurred any material liability, direct or indirect, fixed or contingent that would materially adversely affect Guarantor's ability to perform obligations hereunder; (g) after giving effect to this Guaranty, Guarantor is solvent, is not engaged or about to engage in business or a transaction for which the property of Guarantor is an unreasonably small capital, and does not intend to incur or believe that it will incur debts that will be beyond its ability to pay as such debts mature; and (h) Guarantor has read and fully understands the provisions contained in the DDA and the Other Agreements. Guarantor's representations, warranties and covenants are a condition precedent to the performance by City of certain obligations under the DDA and shall survive the execution hereof and any bankruptcy, foreclosure, transfer of security or other event affecting Developer, any other Person, or any security for all or any part of the Guaranteed Obligations. Section 14. Notices. All notices, requests, consents, demands and other communications required or which any party desires to give hereunder or under the DDA shall be in writing and, unless otherwise specifically provided in the DDA, shall be deemed sufficiently given or furnished if delivered by personal delivery, by nationally recognized overnight courier service, or by certified United States mail, postage prepaid, addressed to the party to whom directed at the addresses specified in this Guaranty or in the DDA (unless changed by similar notice in writing given by the particular party whose address is to be changed) or by email. Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 15 Por. Disp. Areas 2B, 2C and 8 Notice to Guarantor shall be delivered to the following addresses: Guarantor: TIC ACQUISITION AND DEVELOPMENT LLC c/o The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Attn: Bryan W. Stevens, Vice President, Corporate Finance & Treasurer Email: bstevens@irvinecompany.com And with a copy to: Jay D'Elia Vice President and Assistant General Counsel The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Email: jadeliagirvinecompan. And with a copy to: Holland & Knight LLP 560 Mission Street, Suite 1900 San Francisco, CA 94105 Attention: David L Preiss Email: david.preiss&hklaw.com Any notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of courier or mail, as of the date of first attempted delivery at the address and in the manner provided herein, or, in the case of email, upon receipt; provided receipt is confirmed by electronic means; further provided that service of a notice required by any applicable statute shall be considered complete when the requirements of that statute are met. Notwithstanding the foregoing, no notice of change of address shall be effective except upon actual receipt. This Section shall not be construed in any way to affect or impair any waiver of notice or demand provided in this Guaranty, the DDA or the Other Agreements or to require giving of notice or demand to or upon any Person in any situation or for any reason. Section 15. Cumulative Rights. All of the rights and remedies of City under this Guaranty, the DDA, and the Other Agreements are cumulative of each other and of any and all other rights at law or in equity, and the exercise by City of any one or more of such rights and remedies shall not preclude the simultaneous or later exercise by City of any or all such other rights and remedies. No single or partial exercise of any right or remedy shall exhaust it or preclude any other or further exercise thereof, and every right and remedy may be exercised at any time and from time to time. No failure by City to exercise, or delay in exercising, any right or remedy shall operate as a waiver of such right or remedy or as a waiver of any Material Default. No notice to or demand on Guarantor Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 16 Por. Disp. Areas 2B, 2C and 8 in any case shall of itself entitle Guarantor to any other or further notice or demand in similar or other circumstances. No provision of this Guaranty or any right or remedy of City with respect hereto, or any default or breach, can be waived, nor can this Guaranty or Guarantor be released or discharged in any way or to any extent, except specifically in each case by a writing intended for that purpose (and which refers specifically to this Guaranty) executed and delivered by City to Guarantor. Section 16. Subrogation. Guarantor shall not have any right of subrogation under the DDA or the Other Agreements or any right to participate in any security for the Guaranteed Obligations or any right to reimbursement, exoneration, contribution, indemnification or any similar rights, until the Guaranteed Obligations have been fully and finally discharged in accordance with Section 2.3, and Guarantor hereby waives all of such rights. Guarantor shall not exercise any rights that it may acquire by way of subrogation under this Guaranty, by virtue of any payment made hereunder or otherwise, until all the Guaranteed Obligations have been paid or performed in full. If any amount is paid to Guarantor on account of such subrogation rights before the Guaranteed Obligations have been paid or performed in full, the amount will be held in trust for the benefit of City and will immediately be paid to City to be credited and applied upon the Guaranteed Obligations, whether matured or unmatured, in such order as City, in its sole and absolute discretion, determines. Until the Guaranteed Obligations are paid or performed in full, any indebtedness of Developer to Guarantor is hereby subordinated to all obligations and liabilities of Developer to City arising out of or related to the DDA. Section 17. Time of Essence. Time shall be of the essence in this Guaranty with respect to all of Guarantor's obligations hereunder. Section 18. Continuation and Reinstatement of Guarantor's Obligations. The obligations of Guarantor under this Guaranty will continue to be effective, or be automatically reinstated (notwithstanding any prior release, surrender or discharge by City of this Guaranty or of Guarantor or the prior expiration of this Guaranty): (a) if the performance or the payment, in whole or in part, of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned by City (as a preference, fraudulent conveyance or otherwise) upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of City, Guarantor, Developer or any other Person, or (b) upon or as a result of the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to Developer, Guarantor, or any other Person, or any substantial part of its property, or otherwise, all as though such payments had not been made. If a Default has occurred and continues or exists under or with respect to the DDA or if any default occurs under this Guaranty or with respect to any of the Guaranteed Obligations at such time as City is prevented by reason of the pendency against Guarantor, Developer or any other Person of a case or proceeding under a bankruptcy or insolvency law, Guarantor agrees that this Guaranty and the Guaranteed Obligations will be deemed to have been declared in default or accelerated Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 17 Por. Disp. Areas 2B, 2C and 8 with the same effect as if this Guaranty and the Guaranteed Obligations had been declared in default and accelerated in accordance with their respective terms. Guarantor will immediately perform or pay the Guaranteed Obligations as required under this Guaranty without further notice or demand. Section 19. Entire Agreement; Counterparts; Construction. This Guaranty embodies the entire agreement between City and Guarantor with respect to the guaranty by Guarantor of the Guaranteed Obligations. This Guaranty supersedes all prior agreements and understandings, if any, with respect to the guaranty by Guarantor of the Guaranteed Obligations. This Guaranty shall be effective upon execution by Guarantor and delivery to City. This Guaranty may not be modified, amended or superseded except in a writing signed by City and Guarantor referencing this Guaranty by its date and specifically identifying the portions hereof that are to be modified, amended or superseded. This Guaranty has been executed in a number of identical counterparts, each of which shall be deemed an original for all purposes and all of which constitute, collectively, one agreement. As used herein, the words "include" and "including" shall be interpreted as if followed by the words "without limitation." {Signatures appear on the following page} Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL 18 Por. Disp. Areas 2B, 2C and 8 IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the date first written above. TIC ACQUISITION AND DEVELOPMENT LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA ATT 14A Attachment 14A City of Tustin/Irvine Company Guaranty 03.06.25 (HM) FINAL S-1 Por. Disp. Areas 2B, 2C and 8 ATTACHMENT 14B FORM OF ORIGINAL GUARANTOR CERTIFICATE This Certificate is being delivered pursuant to that certain Disposition and Development Agreement for Portions of Disposition Parcels 2B, 2C and 8 (Tustin Legacy) dated as of , 202_ (the "DDA"), by and between TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company ("Developer"), and the City of Tustin, a municipal corporation of the State of California (the "City"). Capitalized terms used and not defined herein shall have the meanings specified in the DDA. I, the undersigned, am the duly elected and qualified {insert officer title) of TIC ACQUISITION AND DEVELOPMENT LLC, a limited liability company duly organized and existing under the laws of the State of Delaware ("Guarantor"), and I am authorized by Guarantor to make the certifications contained in this Certificate. This Certificate is provided at the request of Developer to satisfy the requirements set forth in the DDA for the Close of Escrow and is provided in furtherance of the Affordable Project and Market Rate Project contemplated in the DDA. I further certify to the City, for and on behalf of Guarantor, as follows as of the date of this Certificate: 1. Guarantor indirectly owns 100% of Developer. 2. The undersigned is the duly appointed {insert officer title) of Guarantor and has the authority on behalf of Guarantor to execute and deliver this Certificate as evidenced by the incumbency certificate attached as Exhibit A and the other documents attached as exhibits to this Certificate. 3. is a {insert officer title) of Guarantor (the "Authorized Officer") and is duly authorized by Guarantor to execute the Guaranty and any and all instruments, documents and other agreements required in connection therewith in accordance with the documents attached as exhibits to this Certificate. The undersigned certifies that the signature affixed to the Guaranty is the genuine signature of the Authorized Officers. 4. Attached hereto as Exhibit B are true and correct copies of the Certificate of Formation of Guarantor and any and all amendments thereto in effect on the date hereof which, except as attached, have not been amended or revised in any way and remain in full force and effect as of the date hereof. 5. Attached hereto as Exhibit C are true and correct copies of the limited liability company operating agreement of Guarantor and any and all amendments thereto in effect on the date hereof which, except as attached, have not been amended or revised in any way and remain in full force and effect as of the date hereof. 6. Attached hereto as Exhibit D are true and correct copies of the certificates of good standing for Guarantor issued by the appropriate officials of the State of Delaware and the State of Tustin Irvine Co DDA Aft 14B Guarantor ATTACHMENT 14B City of Tustin/Irvine Co., Por. Parcels 213, 2C, Cert 2.14.25 (HM) FINAL I and 8 California, each of which certificates of good standing is dated not earlier than thirty (30) days prior to the date of this Certificate. 7. Attached hereto as Exhibit E are true and complete copies of the resolutions adopted by the board of directors of Guarantor to authorize the execution, and delivery of the Guaranty, which resolutions have not been amended or revised in any way and remain in full force and effect as of the date hereof. 8. As of the date of this Certificate, Guarantor has (without the requirement of or reliance upon third party financing) a Net Worth of not less than Eight Hundred Million Dollars ($800,000,000.00) and Liquid Assets of not less than One Hundred Million Dollars ($100,000,000.00), which is sufficient to meet the Minimum Asset Standards under the DDA. 9. At least fifteen (15) days prior to the date of this Certificate, Guarantor has fully and fairly advised Fitch Ratings, Inc. ("Fitch") in writing of Guarantor's obligations under the Guaranty and requested a confirmation from Fitch that there has been no reduction in rating of any long-term indebtedness of Guarantor since the date of the most recent rating action letter delivered by Fitch to Guarantor with respect to Guarantor's long-term indebtedness (the "Fitch Letter"), and that either (x) Fitch has not responded or (y) Fitch has provided written correspondence (a copy of which has made available to the City in accordance with Section 18.24.2 of the DDA) demonstrating that, since the date of the Fitch Letter, there has been no reduction in rating of any long-term indebtedness of Guarantor. 10. Guarantor has not taken any action looking toward its dissolution, and no event, whether voluntary or involuntary, has occurred that has caused the dissolution of Guarantor, and there are no proceedings pending or contemplated for the merger, consolidation, conversion, dissolution, liquidation or termination of Guarantor. 11. All of the statements made in this Certificate are true and correct as of the date hereof, and all financial information provided to the City on behalf of Guarantor was true and correct as of the date thereof, and there has been no material adverse change to Guarantor's financial situation since the date thereof. This Certificate is being furnished to the City to assist City in conducting its investigation of Developer's and Guarantor's financial resources in connection with Guarantor's obligations under the Guaranty. The undersigned acknowledges and agrees on behalf of Guarantor that this Certificate is being furnished to the City in order to induce the City to execute the DDA and that the City intends to rely on the information in this Certificate for the purposes described in this paragraph. [Signature page follows] Tustin Irvine Co DDA Aft 14B Guarantor ATTACHMENT 14B City of Tustin/Irvine Co., Por. Parcels 213, 2C, Cert 2.14.25 (HM) FINAL 2 and 8 Dated: 20 GUARANTOR TIC ACQUISITION AND DEVELOPMENT LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 14B Guarantor Cert ATTACHMENT 14B City of Tustin/Irvine Co., Por. Parcels 213, 2C, 2.14.25 (HM) FINAL S_1 and 8 EXHIBIT A INCUMBENCY CERTIFICATE [see attached] Tustin Irvine Co DDA Att 14B Guarantor Cert ATTACHMENT 14A City of Tustin/Irvine Co., Por. Parcels 213, 2C, 2.14.25 (HM) FINAL EXHIBIT A and 8 EXHIBIT B CERTIFICATE OF FORMATION [see attached] Tustin Irvine Co DDA Att 14B Guarantor Cert ATTACHMENT 14B City of Tustin/Irvine Co., Por. Parcels 213, 2C, 2.14.25 (HM) FINAL EXHIBIT B and 8 EXHIBIT C LIMITED LIABILITY COMPANY OPERATING AGREEMENT AND BYLAWS [see attached] Tustin Irvine Co DDA Att 14B Guarantor Cert ATTACHMENT 14B City of Tustin/Irvine Co., Por. Parcels 213, 2C, 2.14.25 (HM) FINAL EXHIBIT C and 8 EXHIBIT D CERTIFICATES OF GOOD STANDING [see attached] Tustin Irvine Co DDA Att 14B Guarantor Cert ATTACHMENT 14B City of Tustin/Irvine Co., Por. Parcels 213, 2C, 2.14.25 (HM) FINAL EXHIBIT D and 8 EXHIBIT E RESOLUTIONS [see attached] Tustin Irvine Co DDA Att 14B Guarantor Cert ATTACHMENT 14B City of Tustin/Irvine Co., Por. Parcels 213, 2C, 2.14.25 (HM) FINAL) EXHIBIT E and 8 ATTACHMENT 14C FORM OF GUARANTOR DATE DOWN CERTIFICATE [This Certificate to be used at Lot 13 Transfer. For Transfer other than Lot 13 Transfer, use Original Guarantor Certificate] This Certificate is being delivered pursuant to certain Disposition and Development Agreement for Portions of Disposition Parcels 213, 2C and 8 (Tustin Legacy), dated as of , 202_ [if amended, insert relevant amendment information] (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer"), and the City of Tustin, a municipal corporation of the State of California (the "City"). Capitalized terms used herein that are not defined herein shall have the meanings specified in the DDA. I, the undersigned, am the duly elected and qualified {state office held) of TIC Acquisition and Development LLC ("Company"), duly organized and existing under the laws of the State of Delaware, and I am authorized by Company to make the certifications contained in this Certificate. This Certificate is provided to satisfy the requirements for Parcel C Transfer by Developer under the DDA to USA Properties Fund, Inc., a California corporation ("USA Properties") or an assignee of USA Properties that is a limited partnership Controlled by USA Properties (or a wholly -owned affiliate thereof) ("Affordable Housing Developer") pursuant to the DDA and is provided in furtherance of the Affordable Project contemplated in the DDA, as well as to reaffirm the effectiveness of the Guaranty. I further certify to the City, for and on behalf of Company, as follows as of the date of this Certificate: 1. Except as otherwise set forth on Schedule 1 attached hereto and made a part hereof, all of the matters set forth in the Original Guarantor Certificate dated [ ], 202_ attached hereto as Exhibit A ("Original Certificate") are true and correct in all material respects as of the date hereof, and the instruments attached there have not, except as identified on and attached to Schedule 1, been amended or revised in any way and remain in full force and effect as of the date hereof. 2. Attached to this Certificate as Exhibit B is a true and correct copy of the certificate of good standing for Company [and, if applicable, its managing members or general partners) from the Secretary of State of [insert the state in which Company is organized) and the certificate of good standing for Company as a registered foreign [limited liability company/corporation/other] from the Secretary of State of the State of California, each dated not earlier than thirty (30) days prior to the date of this Certificate. 3. The Guaranty as amended by the Affordable Project Reaffirmation of Guaranty is in full force and effect and has not been modified, and will not be modified, amended or terminated without the prior consent of the City, in its sole discretion. [signature page follows} Tustin Irvine Co DDA Att 14C Guarantor ATTACHMENT 14C City of Tustin/Irvine Co Por Parcels 213, Date Down 2.27.25 (HM) FINAL 1 2C and 8 Dated: COMPANY: TIC ACQUISITION AND DEVELOPMENT LLC, a Delaware limited liability company am WE Name: Title: Name: Title: Tustin Irvine Co DDA Att 14C Guarantor ATTACHMENT 14C City of Tustin/Irvine Co Por Parcels 213, Date Down 2.27.25 (HM) FINAL S-1 2C and 8 EXHIBIT A ORIGINAL GUARANTOR CERTIFICATE [see attached] Tustin Irvine Co DDA Att 14C Guarantor ATTACHMENT 14C City of Tustin/Irvine Co Por. Parcels Date Down 2.27.25 (HM) FINAL EXHIBIT A 2B, 2C and 8 F,XHIRIT R CERTIFICATES OF GOOD STANDING SECRETARY OF STATE AND CALIFORNIA SECRETARY OF STATE Tustin Irvine Co DDA Att 14C Guarantor ATTACHMENT 14C City of Tustin/Irvine Co Por. Parcels 2B, Date Down 2.27.25 (HM) FINAL EXHIBIT B 2C and 8 SCHEDULEI {If none —enter None} Tustin Irvine Co DDA Att 14C Guarantor ATTACHMENT 14C City of Tustin/Irvine Co Por. Parcels 213, Date Down 2.27.25 (HM) FINAL SCHEDULE 1 2C and 8 ATTACHMENT 14D FORM OF GUARANTY OPINION [LETTERHEAD OF SHERRY MEYERHOFF HANSON & CRANCE LLP] _, 2025 City of Tustin, California (the "City") 300 Centennial Way Tustin, CA 92780 Re: Guaranty Agreement made by Guarantor (as defined herein) in favor of City dated as of , 202 ("Guaranty") Ladies and Gentlemen: We have acted as special counsel to TIC Acquisition and Development LLC, a Delaware limited liability company ("Guarantor"), in connection with the Guaranty (as defined above). In our capacity as such special counsel, and in connection with this opinion letter, we have examined and relied upon copies of each of the following, each of which is attached to the Certificate of [Officer] of Guarantor ("Guarantor Certificate") executed by the officer(s) named therein on behalf of Guarantor in favor of the City on this date: 1. Certificate of Formation of Guarantor as filed with the Delaware Secretary of State on August 1, 2013, as amended by that certain Certificate of Amendment filed with the Delaware Secretary of State on January 10, 2014 (as amended, the "Certificate of Formation"); 2. Second Amended and Restated Limited Liability Company Agreement of Guarantor dated to be effective as of June 30, 2014 (together with the Bylaws of Guarantor attached as Exhibit A thereto), as amended by that First Amendment to Second Amended and Restated Limited Liability Company Agreement of Guarantor dated to be effective as of May 1, 2017 (as amended, the "Second A/R LLC Agreement" and, together with the Certificate of Formation, "Guarantor's Organizational Documents"); 3. Certificate of Good Standing of Guarantor issued by the Secretary of State of the State of Delaware, dated , 2025; 4. Certificate of Good Standing Foreign Limited Liability Company of Guarantor issued by the Secretary of State of the State of California, dated , 2025; Tustin Irvine Co DDA Att 14D Guaranty Attachment 14D City of Tustin/Irvine Co Opinion 02.11.25 (HM) FINAL 1 Por. Disp Areas 213, 2C and 8 City of Tustin Page 2 202 5. Action by Unanimous Written Consent of the Board of Directors of Guarantor, dated as of , 2025; and 6. The Guaranty. We have assumed the genuineness of all signatures including, relying on the Guarantor Certificate, the genuineness of the signatures on the Guaranty of the persons signing the Guaranty, on behalf of the Guarantor. We also have assumed the authenticity and completeness of all items submitted to us as originals, the conformity with originals of all items submitted to us as copies, and the accuracy and completeness of all records made available to us by Guarantor. We have assumed that any certificate or other document on which we have relied that was given or dated earlier than the date of this opinion letter continued to remain accurate insofar as relevant to our opinions from such earlier date through and including the date of this opinion letter. In making our examination of the Guaranty, we have assumed: that City was in legal existence and had the power to accept the Guaranty, and that any person acting on behalf of the City was duly authorized to act in that capacity; that the conduct of the City in connection with the transaction to which the Guaranty relates (the "Transaction") has complied with any requirement of good faith, fair dealing and conscionability; and that the City and any agent acting for the City in connection with the Transaction have acted in good faith and without notice of any defense against the enforcement of any rights created by, or adverse claim to any property or security interest transferred to the City or created in favor of the City as part of, the Transaction. We have assumed the legal capacity of all natural persons executing the Guaranty or any other document on which our opinions expressed in this opinion letter have relied. We have assumed that there are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement, or qualify the terms of the Guaranty. We have assumed that there has not been any mutual mistake of fact or other mutual misunderstanding, or any fraud, duress or undue influence relevant to the Guaranty. All assumptions stated herein have been made based upon appropriate certifications of parties purporting to have knowledge of the facts and we are not aware of any inconsistent information. Based upon and subject to the foregoing, and subject to the qualifications set forth below, we are of the opinion that: (a) Guarantor is a limited liability company validly existing and in good standing under the laws of the State of Delaware. Guarantor has full limited liability company power and authority under the Delaware Limited Liability Company Act (the "Act") and Guarantor's Organizational Documents to enter into and perform its obligations under the Guaranty. Guarantor has duly registered to transact intrastate business as a foreign limited liability company in, and is in good standing in, the State of California. (b) The execution, delivery and performance of the Guaranty and the Guarantor Certificate have been duly authorized by all requisite action under the Act Tustin Irvine Co DDA Att 14D Guaranty Attachment 14D City of Tustin/Irvine Co Opinion 02.11.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 City of Tustin Page 3 202 and Guarantor's Organizational Documents on the part of Guarantor, and the Guaranty and the Guarantor Certificate have been duly executed and delivered by Guarantor. (c) The Guaranty constitutes the valid and binding obligation of Guarantor and is enforceable against Guarantor in accordance with its terms. (d) Guarantor's execution and delivery of the Guaranty and Guarantor's performance and observance of and compliance with the provisions of the Guaranty do not conflict with or result in a violation of Guarantor's Organizational Documents. The opinions expressed in paragraph (c) above are subject to each of the following qualifications: (i) The enforceability of the Guaranty is subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally. (ii) The enforceability of the Guaranty is subject to limitations imposed by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (iii) We advise you of California statutory provisions and case law to the effect that a guarantor may be discharged, in whole or in part, if the beneficiary of the guaranty alters the obligation of the principal, fails to inform the guarantor of material information pertinent to the principal or any collateral, elects remedies that may impair either the subrogation or reimbursement rights of the guarantor against the principal or the value of any collateral, fails to accord the guarantor the provisions afforded a debtor under Division 9 of the California UCC or otherwise takes any action that materially prejudices the guarantor, unless in any such case, the guarantor has effectively waived such rights or the consequences of such action or has consented to such action. See, e.g., California Civil Code Section 2799 through Section 2855; California Uniform Commercial Code § 9-602, Sumitomo Bank of California v. Iwasaki, 70 Cal. 2d 81, 73 Cal. Rptr. 564 (1968); Union Bank v. Gradsky, 265 Cal. App. 2d 40, 71 Cal. Rptr. 64 (1968). While California Civil Code Section 2856 and related case law provide that express waivers of a guarantor's right to be discharged, such as those contained in the Guaranty, are Tustin Irvine Co DDA Att 14D Guaranty Attachment 14D City of Tustin/Irvine Co Opinion 02.11.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 City of Tustin 202 Page 4 generally enforceable under California law, we express no opinion regarding the effectiveness of the waivers in the Guaranty. (iv) Certain provisions of the Guaranty may not be enforceable; nevertheless, subject to the limitations expressed elsewhere in this opinion letter, upon the material breach by Guarantor of its obligations thereunder, such unenforceability will not preclude the City from recovering from Guarantor, in accordance with applicable law, such damages as were proximately caused by such breach. Our examination of law relevant to the matters herein is limited to the laws of the State of California, the State of Delaware (and, in the case of the laws of the State of Delaware, solely with respect to the Act), and federal law. We have not made an independent review of the laws of any state other than as set forth in the immediately preceding sentence. This opinion letter is furnished by us as special counsel for Guarantor solely in connection with the Guaranty and may be relied upon only by you and by transferees of the Guaranty and solely in connection with the Guaranty. No attorney -client relationship has existed or exists between our firm and you regarding this matter. Our opinion letter may not be used, quoted from, referred to or relied upon in whole or in part by you or by any other person for any other purpose, nor may copies be delivered to any other person, without our prior written consent in each instance. We shall have no obligation to revise or reissue this opinion letter with respect to any change in law or any event, fact, circumstance or transaction which occurs after the date hereof. This opinion letter and the opinions it contains shall be interpreted in accordance with the Legal Opinion Principles issued by the Committee on Legal Opinions of the American Bar Association Business Law Section as published in 53 Business Lawyer 831 (May 1998). Very truly yours, Sherry Meyerhoff Hanson & Crance LLP Tustin Irvine Co DDA Att 14D Guaranty Attachment 14D City of Tustin/Irvine Co Opinion 02.11.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 ATTACHMENT 14E FORM OF GUARANTY REAFFIRMATION Reaffirmation of Guaranty Reference is made to (a) the Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 202_ {if amended, insert relevant amendment information) (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer") and the City of Tustin, a municipal corporation of the State of California (the "City") and (b) the Guaranty, dated as of , 202_ (the "Guaranty"), made by TIC Acquisition and Development LLC, a Delaware limited liability company ("Guarantor") in favor of the City, under the terms of the DDA. Capitalized terms used herein that are not defined herein shall have the meanings specified in the DDA. 1. This Reaffirmation of Guaranty (this "Reaffirmation") is made by Guarantor in satisfaction of the condition to the Transfer described in Section 2.2.4.4 of the DDA or as otherwise required under the terms of the DDA. 2. Guarantor represents and warrants to the City that the execution, delivery, and performance of this Reaffirmation is not in contravention of any law, rule, or regulation, of any order, judgment, decree, writ, injunction, or award of any arbitrator, court, or governmental authority, or of any contract or undertaking to which Guarantor is a party or by which any of its properties may be bound or affected. 3. Guarantor hereby agrees that the Guaranty is and will remain in full force and effect following the Transfer and acknowledges and reaffirms all of Guarantor's obligations owing to the City under the Guaranty, whenever arising. {signature page follows} Tustin Irvine Co DDA Att 14E Guaranty ATTACHMENT 14E City of Tustin/Irvine Co Reaffirmation 12.11.24 (HM) FINAL 1 Por Disp. Areas 213, 2C and 8 TIC ACQUISITION AND DEVELOPMENT LLC Dated: By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 14E Guaranty ATTACHMENT 14E City of Tustin/Irvine Co Reaffirmation 12.11.24 (HM) FINAL S-1 Por Disp. Areas 213, 2C and 8 ATTACHMENT 14F FORM OF AFFORDABLE PROJECT GUARANTY REAFFIRMATION Reaffirmation of Guaranty (Affordable Project) Reference is made to (a) the Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 202_ {if amended, insert relevant amendment information) (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer") and the City of Tustin, a municipal corporation of the State of California (the "City") and (b) the Guaranty, dated as of , 202_ (the "Guaranty"), made by TIC Acquisition and Development LLC, a Delaware limited liability company ("Guarantor") in favor of the City, under the terms of the DDA. Capitalized terms used herein that are not defined herein shall have the meanings specified in the DDA. 1. This Reaffirmation of Guaranty (Affordable Project) (this "Reaffirmation") is made by Guarantor in satisfaction of the condition to the Lot 13 Transfer described in Section 4.7.3.6 of the DDA or as otherwise required under the terms of the DDA. 2. Guarantor represents and warrants to the City that the execution, delivery, and performance of this Reaffirmation is not in contravention of any law, rule, or regulation, of any order, judgment, decree, writ, injunction, or award of any arbitrator, court, or governmental authority, or of any contract or undertaking to which Guarantor is a party or by which any of its properties may be bound or affected. 3. Guarantor hereby agrees that the Guaranty is and will remain in full force and effect following the Transfer and acknowledges and reaffirms all of Guarantor's obligations owing to the City under the Guaranty, whenever arising. {signature page follows} Tustin Irvine Co DDA Att 14F Affordable ATTACHMENT 14F City of Tustin/Irvine Co Reaff Guaranty 12.11.24 (HM) FINAL 1 Por Disp. Areas 213, 2C and 8 TIC ACQUISITION AND DEVELOPMENT LLC Dated: By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 14F Affordable ATTACHMENT 14F City of Tustin/Irvine Co Reaff Guaranty 12.11.24 (HM) FINAL S-1 Por Disp. Areas 213, 2C and 8 ATTACHMENT 14G FORM OF REAFFIRMED GUARANTY OPINION [LETTERHEAD OF SHERRY MEYERHOFF HANSON & CRANCE LLP] _, 202_ City of Tustin, California (the "City") 300 Centennial Way Tustin, CA 92780 Re: Guaranty Agreement made by Guarantor (as defined herein) in favor of City dated as of , 202 ("Guaranty") Ladies and Gentlemen: We have acted as special counsel to TIC Acquisition and Development LLC, a Delaware limited liability company ("Guarantor"), in connection with the Guaranty (as defined above). In our capacity as such special counsel, and in connection with this opinion letter, we have examined and relied upon copies of each of the following, each of which is attached to the Certificate of [Officer] of Guarantor ("Guarantor Certificate") executed by the officer(s) named therein on behalf of Guarantor in favor of the City on this date: 1. Certificate of Formation of Guarantor as filed with the Delaware Secretary of State on August 1, 2013, as amended by that certain Certificate of Amendment filed with the Delaware Secretary of State on January 10, 2014 (as amended, the "Certificate of Formation"); 2. Second Amended and Restated Limited Liability Company Agreement of Guarantor dated to be effective as of June 30, 2014 (together with the Bylaws of Guarantor attached as Exhibit A thereto), as amended by that First Amendment to Second Amended and Restated Limited Liability Company Agreement of Guarantor dated to be effective as of May 1, 2017 (as amended, the "Second A/R LLC Agreement" and, together with the Certificate of Formation, "Guarantor's Organizational Documents"); 3. Certificate of Good Standing of Guarantor issued by the Secretary of State of the State of Delaware, dated , 202_; 4. Certificate of Good Standing Foreign Limited Liability Company of Guarantor issued by the Secretary of State of the State of California, dated , 202_; Tustin Irvine Co DDA Att 14G Reaff Legal Attachment 14D City of Tustin/Irvine Co Opinion 02.12.25 (HM) FINAL 1 Por. Disp Areas 213, 2C and 8 City of Tustin Page 2 202 5. Action by Unanimous Written Consent of the Board of Directors of Guarantor, dated as of , 202 ; 6. The Guaranty; and 7. The Reaffirmation of Guaranty, dated , 202_ (the "Reaffirmation of Guaranty"), executed by the Guarantor for the benefit of the City (the Guaranty and the Reaffirmation of Guaranty are referred to collectively as the "Guaranty Documents"). We have assumed the genuineness of all signatures including, relying on the Guarantor Certificate, the genuineness of the signatures on the Guaranty Documents of the persons signing the those instruments on behalf of the Guarantor. We also have assumed the authenticity and completeness of all items submitted to us as originals, the conformity with originals of all items submitted to us as copies, and the accuracy and completeness of all records made available to us by Guarantor. We have assumed that any certificate or other document on which we have relied that was given or dated earlier than the date of this opinion letter continued to remain accurate insofar as relevant to our opinions from such earlier date through and including the date of this opinion letter. In making our examination of the Guaranty Documents, we have assumed: that City was in legal existence and had the power to accept the Guaranty Documents, and that any person acting on behalf of the City was duly authorized to act in that capacity; that the conduct of the City in connection with the transaction to which the Guaranty relates (the "Transaction") has complied with any requirement of good faith, fair dealing and conscionability; and that the City and any agent acting for the City in connection with the Transaction have acted in good faith and without notice of any defense against the enforcement of any rights created by, or adverse claim to any property or security interest transferred to the City or created in favor of the City as part of, the Transaction. We have assumed the legal capacity of all natural persons executing the Guaranty Documents or any other document on which our opinions expressed in this opinion letter have relied. We have assumed that there are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement, or qualify the terms of the Guaranty Documents. We have assumed that there has not been any mutual mistake of fact or other mutual misunderstanding, or any fraud, duress or undue influence relevant to the Guaranty Documents. All assumptions stated herein have been made based upon appropriate certifications of parties purporting to have knowledge of the facts and we are not aware of any inconsistent information. Based upon and subject to the foregoing, and subject to the qualifications set forth below, we are of the opinion that: (a) Guarantor is a limited liability company validly existing and in good standing under the laws of the State of Delaware. Guarantor has full limited liability company power and authority under the Delaware Limited Liability Company Act (the "Act") and Guarantor's Organizational Documents to Tustin Irvine Co DDA Att 14G Reaff Attachment 14D City of Tustin/Irvine Co Legal Opinion 02.12.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 City of Tustin Page 3 202 enter into and perform its obligations under the Guaranty Documents. Guarantor has duly registered to transact intrastate business as a foreign limited liability company in, and is in good standing in, the State of California. (b) The execution, delivery and performance of the Guaranty Documents and the Guarantor Certificate have been duly authorized by all requisite action under the Act and Guarantor's Organizational Documents on the part of Guarantor, and the Guaranty Documents and the Guarantor Certificate have been duly executed and delivered by Guarantor. (c) The Guaranty, as reaffirmed under the terms of the Reaffirmation of Guaranty, constitutes the valid and binding obligation of Guarantor and is enforceable against Guarantor in accordance with its terms. (d) Guarantor's execution and delivery of the Guaranty Documents and Guarantor's performance and observance of and compliance with the provisions of the Guaranty, as reaffirmed under the terms of the Reaffirmation of Guaranty, do not conflict with or result in a violation of Guarantor's Organizational Documents. The opinions expressed in paragraph (c) above are subject to each of the following qualifications: (i) The enforceability of the Guaranty Documents is subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally. (ii) The enforceability of the Guaranty Documents is subject to limitations imposed by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (iii) We advise you of California statutory provisions and case law to the effect that a guarantor may be discharged, in whole or in part, if the beneficiary of the guaranty alters the obligation of the principal, fails to inform the guarantor of material information pertinent to the principal or any collateral, elects remedies that may impair either the subrogation or reimbursement rights of the guarantor against the principal or the value of any collateral, fails to accord the guarantor the provisions afforded a debtor under Division 9 of the California UCC or otherwise takes any action that materially prejudices the guarantor, unless in any such case, the guarantor has Tustin Irvine Co DDA Att 14G Reaff Attachment 14D City of Tustin/Irvine Co Legal Opinion 02.12.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 City of Tustin 202 Page 4 effectively waived such rights or the consequences of such action or has consented to such action. See, e.g., California Civil Code Section 2799 through Section 2855; California Uniform Commercial Code § 9-602, Sumitomo Bank of California v. Iwasaki, 70 Cal. 2d 81, 73 Cal. Rptr. 564 (1968); Union Bank v. Gradsky, 265 Cal. App. 2d 40, 71 Cal. Rptr. 64 (1968). While California Civil Code Section 2856 and related case law provide that express waivers of a guarantor's right to be discharged, such as those contained in the Guaranty, are generally enforceable under California law, we express no opinion regarding the effectiveness of the waivers in the Guaranty. (iv) Certain provisions of the Guaranty may not be enforceable; nevertheless, subject to the limitations expressed elsewhere in this opinion letter, upon the material breach by Guarantor of its obligations thereunder, such unenforceability will not preclude the City from recovering from Guarantor, in accordance with applicable law, such damages as were proximately caused by such breach. Our examination of law relevant to the matters herein is limited to the laws of the State of California, the State of Delaware (and, in the case of the laws of the State of Delaware, solely with respect to the Act), and federal law. We have not made an independent review of the laws of any state other than as set forth in the immediately preceding sentence. This opinion letter is furnished by us as special counsel for Guarantor solely in connection with the Guaranty Documents and may be relied upon only by you and by transferees of the Guaranty and solely in connection with the Guaranty Documents. No attorney -client relationship has existed or exists between our firm and you regarding this matter. Our opinion letter may not be used, quoted from, referred to or relied upon in whole or in part by you or by any other person for any other purpose, nor may copies be delivered to any other person, without our prior written consent in each instance. We shall have no obligation to revise or reissue this opinion letter with respect to any change in law or any event, fact, circumstance or transaction which occurs after the date hereof. This opinion letter and the opinions it contains shall be interpreted in accordance with the Legal Opinion Principles issued by the Committee on Legal Opinions of the American Bar Association Business Law Section as published in 53 Business Lawyer 831 (May 1998). Very truly yours, Sherry Meyerhoff Hanson & Crance LLP Tustin Irvine Co DDA Att 14G Reaff Attachment 14D City of Tustin/Irvine Co Legal Opinion 02.12.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 City of Tustin 202 Page 5 Tustin Irvine Co DDA Att 14G Reaff Attachment 14D City of Tustin/Irvine Co Legal Opinion 02.12.25 (HM) FINAL 5 Por. Disp. Areas 213, 2C and 8 ATTACHMENT 15A FORM OF ORIGINAL EQUITY INVESTOR CERTIFICATE This Certificate is being delivered pursuant to that certain Disposition and Development Agreement for Portions of Disposition Parcels 2B, 2C and 8 (Tustin Legacy), dated as of , 202_ [if amended, insert relevant amendment information) (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company, and the City of Tustin, a municipal corporation of the State of California (the "City"). Capitalized terms used herein that are not defined herein shall have the meanings specified in the DDA. I, the undersigned, am the duly elected and qualified [officer title] of TIC Acquisition and Development LLC, ("Company"), a limited liability company duly organized and existing under the laws of the State of Delaware, and I am authorized by Company to make the certifications contained in this Certificate. This Certificate is provided at the request of , a ("Developer") to satisfy the requirements for [[For Close of Escrow:} Close of Escrow [For Transfer:} a Transfer] set forth in the DDA. I further certify to the City, for and on behalf of Company, as follows as of the date of this Certificate: 1. Company is the is the Controlling Person of Developer and is the "Equity Investor" as such term is defined in the DDA with respect to the Market Rate Project and the Affordable Project described in the DDA. 2. The undersigned is the duly appointed [officer title] and has the authority on behalf of Company to execute and deliver this Certificate on behalf of Company as evidenced by the incumbency certificate attached as Exhibit A and the other documents attached as exhibits to this Certificate. 3. Company and Developer have entered into that certain Equity Funding Agreement, dated as of , 2025 ("Equity Commitment"), which is attached hereto as Exhibit B, pursuant to which Company has agreed to make certain contributions to Developer as equity capital to pay Development Costs (as defined in the DDA) incurred by Developer, ("Contributions"), all as more particularly set forth and in and subject to the terms of the Equity Commitment. Exhibit B is a true and complete copy of the Equity Commitment, is in full force and effect and has not been modified, and will not be modified, amended or terminated without the prior consent of the City, in its sole discretion. The Equity Commitment was duly executed and delivered by , an authorized signatory of the Company, who had the authority to do so and each is a valid and binding obligation of the Company, in full force and effect and fully enforceable in accordance with its terms. Tustin Irvine Co DDA Aft 15A Equity ATTACHMENT 15A City of Tustin/Irvine Co Por. Parcels 213, 2C Inv. Cert. 02.11.25 (HM) FINAL 1 and 8 4. Attached hereto as Exhibit C are true and complete copies of the Certificate of Formation of Company and any and all amendments thereto in effect on the date hereof which, except as attached, have not been amended or revised in any way and remain in full force and effect as of the date hereof. 5. Attached hereto as Exhibit D are true and complete copy of the Limited Liability Company Agreement of Company and any and all amendments thereto in effect on the date hereof which, except as attached, have not been amended or revised in any way and remain in full force and effect as of the date hereof. 6. Attached hereto as Exhibit E are a true and complete copy of (a) a certificate of good standing for Company from the Secretary of State of the State of Delaware, and (b) a certificate of good standing and foreign entity registration from the Secretary of State of the State of California, each dated not earlier than thirty (30) days prior to the date of this Certificate. 7. Attached hereto as Exhibit F is a true and complete copies of the resolutions adopted by the board of directors of Equity Investor to authorize the funding of the Contributions and the execution of the Equity Commitment, which resolutions have not been amended or revised in any way and remain in full force and effect as of the date hereof. All required approvals of or from the Company required prior to execution of the Equity Commitment were properly obtained. 8. Company has not taken any action looking toward its dissolution, and no event, whether voluntary or involuntary, has occurred that has caused the dissolution of Company or Developer, and there are no proceedings pending or contemplated for the merger, consolidation, conversion, dissolution, liquidation or termination of Company or Developer. 9. Company's ability to make Contributions as and when required under the Equity Commitment is not contingent on third -party financing. Company has the financial capacity, Liquid Assets and Net Worth sufficient to meet the requirements of the DDA and to allow Company to make the Contributions as and when required under the Equity Commitment. This Certificate is being furnished to the City solely to assist it in conducting its investigation of Company's financial resources in connection with Company's obligation to make contributions in accordance with the terms of the Equity Commitment. The undersigned acknowledges and agrees on behalf of Company that the City intends to rely on the information in this Certificate and that this Certificate may be relied upon by the City for the purposes described in this paragraph. {signature page follows} Tustin Irvine Co DDA Aft 15A Equity ATTACHMENT 15A City of Tustin/Irvine Co Por. Parcels 213, 2C Inv. Cert. 02.11.25 (HM) FINAL 2 and 8 Dated: COMPANY TIC ACQUISITION AND DEVELOPMENT LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Aft 15A Equity ATTACHMENT 15A City of Tustin/Irvine co Por. Parcels 213, 2C Inv. Cert. 02.11.25 (HM) FINAL S-1 and 8 EXHIBIT A INCUMBENCY CERTIFICATE [see attached] Tustin Irvine Co DDA Aft 15A Equity Inv. ATTACHMENT 15A City of Tustin/Irvine Co Por. Parcels Cert. 02.11.25 (HM) FINAL EXHIBIT A 2B, 2C and 8 EXHIBIT B EQUITY COMMITMENT [see attached] Tustin Irvine Co DDA Aft 15A Equity Inv. ATTACHMENT 15A City of Tustin/Irvine Co Por. Parcels Cert. 02.11.25 (HM) FINAL EXHIBIT B 2B, 2C and 8 EXHIBIT C CERTIFICATE OF FORMATION [see attached] Tustin Irvine Co DDA Aft 15A Equity Inv. ATTACHMENT 15A City of Tustin/Irvine Co Por. Parcels Cert. 02.11.25 (HM) FINAL EXHIBIT C 2B, 2C and 8 EXHIBIT D OPERATING AGREEMENT AND BYLAWS [see attached] Tustin Irvine Co DDA Aft 15A Equity Inv. ATTACHMENT 15A City of Tustin/Irvine Co Por. Parcels Cert. 02.11.25 (HM) FINAL EXHIBIT D 2B, 2C and 8 EXHIBIT E CERTIFICATES OF GOOD STANDING [see attached] Tustin Irvine Co DDA Aft 15A Equity Inv. ATTACHMENT 15A City of Tustin/Irvine Co Por. Parcels Cert. 02.11.25 (HM) FINAL EXHIBIT E 2B, 2C and 8 EXHIBIT F RESOLUTIONS [see attached] Tustin Irvine Co DDA Aft 15A Equity Inv. ATTACHMENT 15A City of Tustin/Irvine Co Por. Parcels Cert. 02.11.25 (HM) FINAL EXHIBIT F 2B, 2C and 8 ATTACHMENT 15B FORM OF EQUITY INVESTOR DATE DOWN CERTIFICATE This Certificate is being delivered pursuant to certain Disposition and Development Agreement for Portions of Disposition Parcels 213, 2C and 8 (Tustin Legacy), dated as of , 202_ {if amended, insert relevant amendment information} (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company, and the City of Tustin, a municipal corporation of the State of California (the "City"). Capitalized terms used herein that are not defined herein shall have the meanings specified in the DDA. I, the undersigned, am the duly elected and qualified {state office held) of TIC ACQUISITION AND DEVELOPMENT LLC ("Company"), a limited liability company duly organized and existing under the laws of the State of Delaware, and I am authorized by Company to make the certifications contained in this Certificate. This Certificate is provided at the request of , a ("Developer") to satisfy the requirements for [{For Close of Escrow.] Close of Escrow {For Transfer.) a Transfer] set forth in the DDA. I further certify to the City, for and on behalf of Company, as follows as of the date of this Certificate: 1. Except as otherwise set forth on Schedule 1 attached hereto and made a part hereof, all of the matters set forth in the Original Equity Investor Certificate dated , 20_ attached hereto as Exhibit A ("Original Certificate") are true and correct in all material respects as of the date hereof, and the instruments attached there have not, except as identified on and attached to Schedule 1, been amended or revised in any way and remain in full force and effect as of the date hereof. 2. Attached hereto as Exhibit B are a true and complete copy of (a) a certificate of good standing for Company from the Secretary of State of the State of Delaware, and (b) a certificate of good standing and foreign entity registration from the Secretary of State of the State of California, each dated not earlier than thirty (30) days prior to the date of this Certificate. 3. The Equity Commitment (as defined in the Original Certificate) is in full force and effect and has not been modified, and will not be modified, amended or terminated without the prior consent of the City, in its sole discretion. 4. The Equity Commitment (as defined in the Original Certificate) is in full force and effect and has not been modified, and will not be modified, amended or terminated without the prior consent of the City, in its sole discretion. {If the Equity Commitment has been amended or modified, delete the text above and replace with the following:} Company and Developer have entered into that certain {specify document committing to provide funds and amendments or restatements) ("Equity Commitment"), which will not be modified, amended or terminated without the prior consent of the City, in its sole discretion.] Tustin Irvine Co DDA Att 15B Equity Inv ATTACHMENT 15B City of Tustin/Irvine Co Por. Parcels Date Down 02.11.25 (HM) FINAL 1 213, 2C and 8 5. This date down certificate provided by Company to the City prior and as a condition to the Close of Escrow shall reflect Company's commitment to make Contributions in the amount of the required peak capital set forth in the Updated Financing Plan approved by the City. 6. [Insert name ofperson signing], is a {state office held) of Company and is in such capacity, duly authorized by Company to execute the Commitment Letter referred to in the Original Certificate and any and all instruments, documents and other agreements required in connection therewith in accordance with the proceedings showing authority attached to the Original Certificate. {signature page follows} Tustin Irvine Co DDA Att 15B Equity Inv ATTACHMENT 15B City of Tustin/Irvine Co Por. Parcels Date Down 02.11.25 (HM) FINAL 2 213, 2C and 8 Dated: COMPANY: TIC ACQUISITION AND DEVELOPMENT LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 15B Equity Inv ATTACHMENT 15B City of Tustin/Irvine Co Por. Parcels Date Down 02.11.25 (HM) FINAL S-1 213, 2C and 8 EXHIBIT A ORIGINAL EQUITY INVESTOR CERTIFICATE [see attached] Tustin Irvine Co DDA Att 15B Equity Inv ATTACHMENT 15B City of Tustin/Irvine Co Por. Parcels Date Down 02.11.25 (HM) FINAL EXHIBIT A 2B, 2C and 8 EXHIBIT B CERTIFICATES] OF GOOD STANDING Tustin Irvine Co DDA Att 15B Equity Inv ATTACHMENT 15B City of Tustin/Irvine Co Por. Parcels Date Down 02.11.25 (HM) FINAL EXHIBIT B 2B, 2C and 8 EXHIBIT C [UPDATED) COMMITMENT LETTER AGREEMENT [see attached] Tustin Irvine Co DDA Att 15B Equity Inv Date Down 02.11.25 (HM) FINAL ATTACHMENT 15B EXHIBIT C City of Tustin/Irvine Co Por. Parcels 2B, 2C and Tustin Irvine Co DDA Att 15B Equity Inv Date Down 02.11.25 (HM) FINAL SCHEDULEI {If none —enter None} ATTACHMENT 15B SCHEDULEI City of Tustin/Irvine Co Por. Parcels 213, 2C and CONFIDENTIAL ATTACHMENT 15C EQUITY FUNDING AGREEMENT THIS EQUITY FUNDING AGREEMENT (this "Agreement") is entered into as of [ • ] [ • ], 202_, by and between TIC ACQUISITION AND DEVELOPMENT LLC, a Delaware limited liability company ("TIC"), and TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company ("Developer"). RECITALS A. TIC indirectly owns 100% of Developer. B. Developer, as "Developer," and the City of Tustin, a municipal corporation of the State of California (the "City"), as the "City," are parties to that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated of even date herewith (the "DDA"), pursuant to which the City has agreed to sell and Developer has agreed to purchase, upon and subject to the terms and conditions set forth therein, the parcels of land comprised of approximately 19.4 acres located in the City of Tustin, County of Orange, California, as more particularly described and defined in the DDA (the "Real Property"). Initially capitalized terms used and not otherwise defined in this Agreement are used with the meanings set forth in the DDA. C. The DDA also provides for development on the Real Property and adjacent to or in the area near the Real Property by Developer of the Project, all as more particularly described and defined in the DDA. D. TIC desires to enter into this Agreement in order to provide to Developer assurances that TIC will provide to Developer as and when necessary the required equity capital (a) to acquire the Property pursuant to the DDA, (b) to pay, through issuance of a Final Certificate of Compliance, all costs of development of the Project and the construction, marketing and sale or lease of all Improvements on the Parcel as further described and provided for in the Scope of Development and (c) to enable Developer to perform and satisfy all of the covenants of Developer contained in the DDA (collectively, the "DDA Obligations"), in each case upon and subject to the terms and conditions of this Agreement. Without limiting the generality of the foregoing definition, DDA Obligations include the payment of such amounts by Developer as may be necessary for Developer to perform the Affordable Project Obligations including, if necessary, by lending or contributing such sums to the Affordable Housing Developer as may be necessary for the Affordable Housing Developer to perform the Affordable Project Provisions or, if there is a default by Affordable Housing Developer under the Lot 13 PDA or the Approved Ground Lease with respect to the Affordable Project Provisions that is not otherwise cured by Developer's exercise of its Affordable Project Enforcement Obligations within the time periods established for such cure in Section 13.5 of the DDA or if the Lot 13 Transfer does not occur prior to the outside date established in the DDA for such Transfer, to Advance (as defined below) to Developer all amounts required for Developer to itself perform the Affordable Project Provisions, including without limitation, Completion of the Affordable Project. Tustin Legacy - Equity Funding Agreement Attachment 15C City of Tustin/Irvine Company 01.24.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 CONFIDENTIAL AGREEMENT In consideration of the foregoing Recitals and the mutual covenants set forth below, the parties agree as follows: 1. ADVANCES 1.1 Advances. As used herein, the term "Advance" or "Advanced" shall mean a contribution of funds (in U.S. Dollars) by TIC to Developer or, at the direction of Developer, to any third party as equity capital to pay for actual DDA Obligations incurred by Developer. 1.2 Conditions to Advances. Advances shall be made by TIC under this Agreement only for DDA Obligations and only so long as the DDA shall remain in full force and effect and shall not have been terminated for any reason. In addition, TIC shall not be obligated to make any further Advances under this Agreement from and after the earliest to occur of (a) the date of closing of the repurchase of the Property following any exercise by the City of its Right of Repurchase, (b) the date that the City re-enters and takes possession of the Property and/or Improvements and title thereto is re -vested in the City following any exercise by the City of its Right of Reversion, (c) the date that the City or any third parry otherwise takes title and/or possession to the Property and/or Improvements as a result of the exercise of any other rights or remedies available to the City under the DDA, or (d) the issuance by the City of the Final Certificate of Compliance. Notwithstanding the termination of the DDA or the occurrence of any of the events described clauses a) through (c) in the immediately preceding sentence that would permit TIC to refrain from making further Advances under this Agreement (such events are referred to as "Advance Termination Events"), TIC shall nevertheless make Advances under this Agreement to the extent required for the performance in full of the Affordable Project Obligations as if no Advance Termination Event had occurred. In addition, TIC's obligation to make advances under this Agreement shall be suspended following the occurrence and during the pendency of any Potential Default or Material Default by City under the DDA. c 1.3 Requests for Advances. Developer shall make each request for the payment of an Advance in writing, signed by an authorized representative of Developer, together with the following information and documentation: 1.3.1 A certified statement, signed by an authorized representative of Developer, that payment of a DDA Obligation in the request for the Advance is due and owing by Developer (unless TIC waives this requirement in its sole discretion); and 1.3.2 Such other documentation as to the amount of the DDA Obligations to which the Advance relates as TIC may reasonably request. 1.4 Payment of Advances. TIC shall pay each Advance to Developer within five (5) business days after Developer's presentation of a request in accordance with Section 1.3 (Requests for Advances) or on such later date as may be requested by Developer in each such request. Tustin Legacy - Equity Funding Agreement Attachment 15C City of Tustin/Irvine Company 01.24.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 CONFIDENTIAL 2. MISCELLANEOUS 2.1 Limitations Upon Liability. It is understood and agreed that TIC shall not have any liability arising out of this Agreement other than as expressly provided herein. Without limiting the obligations set forth herein, Developer shall be solely responsible to, and TIC shall not be liable for any claim by, the City under the DDA or any of Developer's contractors, materialmen, consultants, architects, engineers or others, or to the extent responsibility is imposed by law or contract, to their subcontractors or suppliers, for work performed or otherwise with respect to any aspect of the Project. Developer shall indemnify, hold harmless and defend TIC and its respective past, present or future agents, heirs, executors, administrators, conservators, successors, assigns, participants, direct and indirect parents, principals, subsidiaries, affiliates, shareholders, interest holders, investors, members, managers, partners (including general and limited partners), representatives, receivers, attorneys and beneficiaries, and each and all of the past, present and future managers, officers, directors and employees of each of them, from and against any such claim, and any cost or liability arising out of any such claim. 2.2 No Termination or Modification. Without the prior written consent of the City: (a) neither TIC nor the Developer shall terminate this Agreement or modify this Agreement in any respect, (b) TIC shall not suffer the Developer to waive performance by TIC of any of TIC's obligations under this Agreement, and (c) neither TIC nor the Developer shall otherwise take any action or omit to take any action that would have the effect of relieving TIC of any of its obligations under this Agreement. 2.3 Third -Party Beneficiaries. This Agreement is entered into to satisfy the requirements under the DDA by providing assurance to the City that Developer will have sufficient funds to satisfy Developer's obligations under the DDA, and the City is therefore a third -party beneficiary of this Agreement. This Agreement is not intended to, nor does it, create any third -party beneficiary rights in any other Person. 2.4 Counterparts. This Agreement may be signed in multiple counterparts which shall, when executed by all parties, constitute a single binding agreement. 2.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California (without reference to conflicts of laws principles). 2.6 Integration. This Agreement contains the entire understanding between the parties hereto with respect to the subject matter hereof, and is intended to be a full integration of all prior or contemporaneous agreements, conditions, understandings or undertakings between TIC and Developer with respect to the subject matter hereof. There are no promises, agreements, conditions, undertakings, understandings, warranties or representations, whether oral, written, express or implied, between TIC and Developer with respect to TIC's funding of equity capital to Developer other than as are expressly set forth in this Agreement. [Signature Page Follows] Tustin Legacy - Equity Funding Agreement Attachment 15C City of Tustin/Irvine Company 01.24.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 CONFIDENTIAL IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. DEVELOPER: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: TIC: TIC ACQUISITION AND DEVELOPMENT LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Legacy - Equity Funding Agreement Attachment 15C City of Tustin/Irvine Company 01.24.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 ATTACHMENT 16A CERTIFICATE OF COMPLIANCE CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383. Recording requested by and When recorded mail to: The City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Citv Manager SPACE ABOVE THIS LINE FOR RECORDER'S USE [FINAL] CERTIFICATE OF COMPLIANCE FOR [[If no Developer Final Tract Map Recorded.) LOT 111114 OF TRACT 181971 or [[If Developer Final Tract Map Recorded:} PARCELS) [_J of TRACT 193531 This [FINAL] CERTIFICATE OF COMPLIANCE ("Certificate of Compliance") is made as of , 20_ by the CITY OF TUSTIN, a municipal corporation of the State of California ("City"), in favor of {insert name of Developer under DDA at time of execution, state of formation and type of entity) ("Developer"), with reference to the following matters: A. The City and [[if no Assignment:} Developer / [if Assignment:) , LLC, a Delaware limited liability company, predecessor in interest to Developer ("Original Developer'),] entered into that certain Tustin Legacy Disposition and Development Agreement For Portions of Disposition Areas 213, 2C and 8 dated as of , 20_ [[if amendments are made to DDA insert the following:} ("Original DDA') [insert any amendments to DDA} (collectively (the "DDA')] [[(if no amendments are made to DDA, insert the following:} (the "DDA')]. B. The DDA is evidenced by that certain Memorandum of Disposition and Development Agreement For Portions Of Disposition Areas, 213, 2C and 8, dated as of and recorded on in the Office of the County Recorder, Orange County, California (the "Official Records") as Instrument No. [insert any amendments to Memorandum of DDA} (the "Memorandum of DDA") with respect to certain real property legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Real Property"). All initially capitalized terms not otherwise defined herein shall have the meanings assigned to them in the DDA. Tustin Irvine Co DDA Att 16A Market Rate ATTACHMENT 16A City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 C. Pursuant to the DDA, the Developer agreed to develop and construct certain Improvements comprising the Project on the Real Property. D. The City has determined that Developer has satisfied the Conditions Precedent set forth in Section 9.3 of the [Original) DDA for the City's issuance of a [Final] Certificate of Compliance with respect to [{For Final Certificate.) the Real Property [{For Any other Certificate.) Lot_/Parcel_ as legally described on Exhibit B attached hereto and incorporated herein by this reference (the "Certified Parcel")] and the Improvements constructed thereon. [{For Any other Certificate.) For avoidance of doubt, this Certificate of Compliance applies only with respect to the Certified Parcel, and does not apply to the any other portion of the Development Parcels or any Improvements thereon.] NOW, THEREFORE, the City certifies as follows: 1. This [Final] Certificate of Compliance applies to and shall be recorded in the Official Records against [{for Final Certificate:} the Real Property, [{for any other Certificate:} the Certified Parcel] and that portion of the Improvements constructed thereon [as depicted and described on Exhibit C attached hereto and incorporated herein by this reference (the "Certified Improvements')]. 2. This [Final] Certificate of Compliance shall be deemed conclusive evidence of the City's determination that Developer of the Certified Improvements has satisfactorily Completed construction and development with respect to the Improvements on [{for Final Certificate.) the Real Property, [{for any other Certificate.) the Certified Parcel] and has satisfied all Conditions Precedent set forth in [Section 9.37 of the DDA for issuance of this [Final] Certificate of Compliance. 3. Prior to issuance of this Certificate, Developer has completed 1 Residential Units upon [{for Final Certificate.) the Real Property, [{for any other Certificate.) the Certified Parcel,J comprising the number of Residential Units actually constructed thereon by Developer. Except to the extent that any of such rights were conveyed by the City to third parties prior to the Effective Date [{for any Certificate other than a Final Certificate:} or reserved to Developer pursuant to the terms of the DDA during its term or identified in any previously recorded Certificate of Compliance,J the City retains all Residential Units and all development rights associated with Specific Plan Neighborhood D, Planning Areas 13 and 14 in excess of the number of Residential Units identified in this Certificate as constructed on [[for Final Certificate:] the Real Property, [[for any other Certificate.) the Certified Parcel] and the units and development rights retained by the City shall be freely transferable by the City throughout Tustin Legacy. 4. Except as set forth in Section 5 of this Certificate, upon recording of this [Final] Certificate of Compliance in the Official Records, the DDA shall terminate and shall be of no further force and effect with respect to [[for Final Certificate.) the Real Property [for any other Certificate:] the Certified Parcel] or any portion thereof or Certified Improvements thereon. Any Person thereafter purchasing, leasing or otherwise acquiring [for Final Certificate): such interests ' To be filled in at time of issuance. Tustin Irvine Co DDA Att 16A Market Rate ATTACHMENT 16A City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 {for any other Certificate:} the Certified Parcel or the Certified Improvements] shall not be subject to the DDA with respect thereto except as set forth in Section 5 of this Certificate. 5. Notwithstanding any other provision of the DDA to the contrary or the issuance or recording in the Official Records of this [Final] Certificate of Compliance and the termination of the DDA as to the [{for Final Certificate:} the Real Property {for any other Certificate:} the Certified Parcel] and the Certified Improvements as a result thereof: (a) Sections 9.8.2.1 through 9.8.2.3 of the DDA and the sections of the DDA referenced therein (i.e., Sections 11.1.4 and 11.1.1, respectively) shall survive for the periods referenced therein, and such sections of the DDA state, in relevant part, as follows: (i) Section 9.8.2.1. The provisions of Section 11.1.4 [of the DDA] shall survive until the expiration of the time period for provision of the environmental insurance policy described thereby; and the obligation to provide such insurance policy shall remain in effect as to each Parcel for the applicable period specified in Section 11.1.4 [of the DDA] and no Developer nor any successor or assign or Successor Owner shall modify or terminate any prepaid environmental insurance policy in effect as of the issuance of any Certificate of Compliance; (ii) Section 9.8.2.3. The provisions of Section 11.1.1 [of the DDA] requiring liability insurance shall be maintained in full force and effect as to each Parcel until issuance of the Certificate of Compliance for such Parcel and, subject to the provisions of Section 11.1.1 [of the DDA], so long thereafter as necessary to cover any Claims of damages suffered by persons or property prior to Recording by the City of the Final Certificate of Compliance, resulting from any acts or omissions of Developer, Developer's employees, agents, contractors, suppliers, consultants or other related parties. (b) The following instruments shall survive the termination of the DDA, each in accordance with its terms and without modification or amendment and shall be binding on all Persons owning, leasing, or occupying the [{for Final Certificate:} Real Property] [{for any other Certificate:} the Certified Parcel] and/or the Certified Improvements: (i) Tustin Legacy Development Agreement dated , 20_ and recorded on , 20 in the Official Records as Instrument No. ; (ii) Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement dated 20_ and recorded on 20_ in the Official Records as Instrument No. ;2 (iii) Declaration of Special Restrictions dated 20_ and recorded on , 20_ in the Official Records as Instrument No. ; (iv) Quitclaim Deed for Portions of Disposition Areas 213, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil 2 NTD: Upon recording of Final Certificate of Compliance, the terms of the Declaration of Affordable Housing Restrictions shall be deleted from the list of documents remaining in effect as to Lot 11 and Lot 12. Tustin Irvine Co DDA Att 16A Market Rate ATTACHMENT 16A City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 Code Section 1471, dated 20 and recorded on , 20 in the Official Records as Instrument No. ; (v) Public Access Covenant dated , 20_ and recorded on 20 in the Official Records as Instrument No. ; (vi) Landscape Installation and Maintenance Agreement dated 20 and recorded on , 20 in the Official Records as Instrument No. (vii) TUSD Assignment Agreement {insert correct name} dated 20 , and not recorded in the Official Records. (c) The issuance of this [Final] Certificate of Compliance shall not waive any rights or claim that the City may have against any Person: (i) for latent or patent defects in design, construction or similar matters under any applicable law nor shall it be evidence of satisfaction of any of the Developer's obligations to third parties who are not a party to the DDA, or (ii) with respect to Claims the City may have against Developer, if any, that Accrued during the period in which the DDA was in effect as to [{for Final Certificate}: the Real Property {for any other Certificate:} the Certified Parcel] and that are also addressed by provisions of the DDA incorporated into the Special Restrictions. (d) The Guaranty, as the same may be reaffirmed at each Transfer by a Reaffirmation of Guaranty or at each Lot 13 Transfer by an Affordable Project Reaffirmation of Guaranty, or, if applicable, any alternative security provided by Developer and approved by the City in its sole discretion, shall remain in full force and effect until the Recording by the City of the Final Certificate of Compliance or for such longer period specified in the Guaranty or any reaffirmation thereof. (e) Any and all obligations contained in the Federal Deed shall survive in perpetuity or for such lesser time period as may be expressly set forth therein, unless such obligations are released by the Federal Government. 6. This [Final] Certificate of Compliance is not a Notice of Completion as referred to in California Civil Code Section 8182. 7. Except as stated herein, nothing contained in this instrument shall modify in any way any other provisions of the documents executed by the City and Developer. {remainder of page is blank / signatures on following page} Tustin Irvine Co DDA Att 16A Market Rate ATTACHMENT 16A City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the City has caused this Certificate of Compliance to be duly executed by its officer duly authorized as of the date first above written. Dated: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City an Amy E. Freilich Tustin Irvine Co DDA Att 16A Market Rate Cert of Compliance 2.18.25 (HM) FINAL CITY OF TUSTIN: By: , Aldo E. Schindler City Manager ACCEPTED AND AGREED: DEVELOPER: By: Name: Title: By: Name: Title: ATTACHMENT 16A S-1 City of Tustin/Irvine Co. Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY Tustin Irvine Co DDA Att 16A Market Rate ATTACHMENT 16A City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL EXHIBIT A Por. Disp. Areas 2B, 2C and 8 EXHIBIT B LEGAL DESCRIPTION OF CERTIFIED PARCEL Tustin Irvine Co DDA Att 16A Market Rate ATTACHMENT 16A City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL EXHIBIT B Por. Disp. Areas 2B, 2C and 8 EXHIBIT C DESCRIPTION/DEPICTION OF COMPLETED IMPROVEMENTS Tustin Irvine Co DDA Att 16A Market Rate ATTACHMENT 16A City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL EXHIBIT C Por. Disp. Areas 2B, 2C and 8 ATTACHMENT 16B CERTIFICATE OF COMPLIANCE CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383. Recording requested by and When recorded mail to: The City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Citv Manager SPACE ABOVE THIS LINE FOR RECORDER'S USE [FINAL] CERTIFICATE OF COMPLIANCE FOR [{If no Developer Final Tract Map Recorded.) LOT [131 OF TRACT 181971 or [[If Developer Final Tract Map Recorded:] PARCELS) [_J of TRACT 193531 This [FINAL] CERTIFICATE OF COMPLIANCE ("Certificate of Compliance") is made as of , 20 by the CITY OF TUSTIN, a municipal corporation of the State of California ("City"), in favor of {insert name of Developer under DDA at time of execution, state of formation and type of entity) ("Developer"), with reference to the following matters: A. The City and [[if no Assignment.) Developer / [if Assignment:) , LLC, a Delaware limited liability company, predecessor in interest to Developer ("Original Developer'),] entered into that certain Tustin Legacy Disposition and Development Agreement For Portions of Disposition Areas 213, 2C and 8 dated as of , 20 [[if amendments are made to DDA insert the following:) ("Original DDA') [insert any amendments to DDA) (collectively (the `DDA')] [[(if no amendments are made to DDA, insert the following:) (the `DDA')]. B. The DDA is evidenced by that certain Memorandum of Disposition and Development Agreement For Portions Of Disposition Areas, 2B, 2C and 8, dated as of and recorded on in the Office of the County Recorder, Orange County, California (the "Official Records") as Instrument No. [insert any amendments to Memorandum of DDA] (the "Memorandum of DDA") with respect to certain real property legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Real Property"). All initially capitalized terms not otherwise defined herein shall have the meanings assigned to them in the DDA. Tustin Irvine Co DDA Att 16B Affordable ATTACHMENT 16B City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 C. Pursuant to the DDA, the Developer agreed to develop and construct certain Improvements comprising the Project on the Real Property. D. The City has determined that Developer has satisfied the Conditions Precedent set forth in Section 9.4 of the {Original} DDA for the City's issuance of a [Final] Certificate of Compliance with respect to [{For Final Certificate:} the Real Property [{For Any other Certificate:} Lot_/Parcel_ as legally described on Exhibit B attached hereto and incorporated herein by this reference (the "Certified Parcel" V and the Improvements constructed thereon. [{For Any other Certificate:} For avoidance of doubt, this Certificate of Compliance applies only with respect to the Certified Parcel, and does not apply to the any other portion of the Development Parcels or any Improvements thereon.] NOW, THEREFORE, the City certifies as follows: 1. This [Final] Certificate of Compliance applies to and shall be recorded in the Official Records against [{for Final Certificate:} the Real Property, [{for any other Certificate:} the Certified Parcel] and that portion of the Improvements constructed thereon [as depicted and described on Exhibit C attached hereto and incorporated herein by this reference (the "Certified Improvements')]. 2. This [Final] Certificate of Compliance shall be deemed conclusive evidence of the City's determination that Developer of the Certified Improvements has satisfactorily Completed construction and development with respect to the Improvements on [{for Final Certificate:} the Real Property, [{for any other Certificate:} the Certified Parcel] and has satisfied all Conditions Precedent set forth in [Section 9.31 of the DDA for issuance of this [Final] Certificate of Compliance. 3. Prior to issuance of this Certificate, Developer has completed ' Residential Units upon [{for Final Certificate:} the Real Property, [{for any other Certificate:} the Certified Parcel,J comprising the number of Residential Units actually constructed thereon by Developer. Except to the extent that any of such rights were conveyed by the City to third parties prior to the Effective Date [{for any Certificate other than a Final Certificate:} or reserved to Developer pursuant to the terms of the DDA during its term or identified in any previously recorded Certificate of Compliance,J the City retains all Residential Units and all development rights associated with Specific Plan Neighborhood D, Planning Areas 13 and 14 in excess of the number of Residential Units identified in this Certificate as constructed on [{for Final Certificate:} the Real Property, [{for any other Certificate:} the Certified Parcel] and the units and development rights retained by the City shall be freely transferable by the City throughout Tustin Legacy. 4. Except as set forth in Section 5 of this Certificate, upon recording of this [Final] Certificate of Compliance in the Official Records, the DDA shall terminate and shall be of no further force and effect with respect to [{for Final Certificate:} the Real Property {for any other Certificate:} the Certified Parcel] or any portion thereof or Certified Improvements thereon. Any Person thereafter purchasing, leasing or otherwise acquiring {for Final Certificate}: such interests 1 To be filled in at time of issuance. Tustin Irvine Co DDA Att 16B Affordable ATTACHMENT 16B City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 {for any other Certificate:} the Certified Parcel or the Certified Improvements] shall not be subject to the DDA with respect thereto except as set forth in Section 5 of this Certificate. 5. Notwithstanding any other provision of the DDA to the contrary or the issuance or recording in the Official Records of this [Final] Certificate of Compliance and the termination of the DDA as to the [{for Final Certificate:} the Real Property [for any other Certificate:} the Certified Parcel] and the Certified Improvements as a result thereof: (a) Sections 9.8.2.1 through 9.8.2.3 of the DDA and the sections of the DDA referenced therein (i.e., Sections 11.1.4 and 11.1.1, respectively) shall survive for the periods referenced therein, and such sections of the DDA state, in relevant part, as follows: (i) Section 9.8.2.1. The provisions of Section 11.1.4 [of the DDA] shall survive until the expiration of the time period for provision of the environmental insurance policy described thereby; and the obligation to provide such insurance policy shall remain in effect as to each Parcel for the applicable period specified in Section 11.1.4 [of the DDA] and no Developer nor any successor or assign or Successor Owner shall modify or terminate any prepaid environmental insurance policy in effect as of the issuance of any Certificate of Compliance; (ii) Section 9.8.2.3. The provisions of Section 11.1.1 [of the DDA] requiring liability insurance shall be maintained in full force and effect as to each Parcel until issuance of the Certificate of Compliance for such Parcel and, subject to the provisions of Section 11.1.1 [of the DDA], so long thereafter as necessary to cover any Claims of damages suffered by persons or property prior to Recording by the City of the Final Certificate of Compliance, resulting from any acts or omissions of Developer, Developer's employees, agents, contractors, suppliers, consultants or other related parties. (b) The following instruments shall survive the termination of the DDA, each in accordance with its terms and without modification or amendment and shall be binding on all Persons owning, leasing, or occupying the [[for Final Certificate:} Real Property] [[for any other Certificate:} the Certified Parcel] and/or the Certified Improvements: (i) Tustin Legacy Development Agreement dated , 20 and recorded on , 20 in the Official Records as Instrument No. ; (ii) Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement dated 20_ and recorded on 20_ in the Official Records as Instrument No. 2 (iii) Declaration of Special Restrictions dated , 20_ and recorded on , 20 in the Official Records as Instrument No. ; (iv) Quitclaim Deed for Portions of Disposition Areas 2B, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Z NTD: Upon recording of Final Certificate of Compliance, the terms of the Declaration of Affordable Housing Restrictions shall be deleted from the list of documents remaining in effect as to Lot 11 and Lot 12. Tustin Irvine Co DDA Att 16B Affordable ATTACHMENT 16B City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 Code Section 1471, dated , 20 and recorded on , 20 in the Official Records as Instrument No. ; (v) Public Access Covenant dated , 20_ and recorded on 20 in the Official Records as Instrument No. ; (vi) Landscape Installation and Maintenance Agreement dated 20 and recorded on , 20 in the Official Records as Instrument No. (vii) TUSD Assignment Agreement [insert correct name] dated 20 , and not recorded in the Official Records. (c) The issuance of this [Final] Certificate of Compliance shall not waive any rights or claim that the City may have against any Person: (i) for latent or patent defects in design, construction or similar matters under any applicable law nor shall it be evidence of satisfaction of any of the Developer's obligations to third parties who are not a party to the DDA, or (ii) with respect to Claims the City may have against Developer, if any, that Accrued during the period in which the DDA was in effect as to [[for Final Certificate): the Real Property [for any other Certificate:} the Certified Parcel] and that are also addressed by provisions of the DDA incorporated into the Special Restrictions. (d) The Guaranty, as the same may be reaffirmed at each Transfer by a Reaffirmation of Guaranty or at each Lot 13 Transfer by an Affordable Project Reaffirmation of Guaranty, or, if applicable, any alternative security provided by Developer and approved by the City in its sole discretion, shall remain in full force and effect until the Recording by the City of the Final Certificate of Compliance or for such longer period specified in the Guaranty or any reaffirmation thereof. (e) Any and all obligations contained in the Federal Deed shall survive in perpetuity or for such lesser time period as may be expressly set forth therein, unless such obligations are released by the Federal Government. 6. This [Final] Certificate of Compliance is not a Notice of Completion as referred to in California Civil Code Section 8182. 7. Except as stated herein, nothing contained in this instrument shall modify in any way any other provisions of the documents executed by the City and Developer. {remainder of page is blank / signatures on following page} Tustin Irvine Co DDA Att 16B Affordable ATTACHMENT 16B City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the City has caused this Certificate of Compliance to be duly executed by its officer duly authorized as of the date first above written. Dated: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM LON David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City Amy E. Freilich Tustin Irvine Co DDA Att 16B Affordable Cert of Compliance 2.18.25 (HM) FINAL CITY OF TUSTIN: By: , Aldo E. Schindler City Manager ACCEPTED AND AGREED: DEVELOPER: By: Name: Title: By: Name: Title: ATTACHMENT 16B S-1 City of Tustin/Irvine Co. Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY Tustin Irvine Co DDA Att 16B Affordable ATTACHMENT 16B City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL EXHIBIT A Por. Disp. Areas 2B, 2C and 8 EXHIBIT B LEGAL DESCRIPTION OF CERTIFIED PARCEL Tustin Irvine Co DDA Att 16B Affordable ATTACHMENT 16B City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL EXHIBIT B Por. Disp. Areas 2B, 2C and 8 EXHIBIT C DESCRIPTION/DEPICTION OF COMPLETED IMPROVEMENTS Tustin Irvine Co DDA Att 16B Affordable ATTACHMENT 16B City of Tustin/Irvine Co. Cert of Compliance 2.18.25 (HM) FINAL EXHIBIT C Por. Disp. Areas 2B, 2C and 8 ATTACHMENT 17A ASSIGNMENT AND ASSUMPTION AGREEMENT CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383. Recording requested by and When recorded mail to: The City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Manager SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSIGNMENT AND ASSUMPTION AGREEMENT Portions of Disposition Areas 2B, 2C and 8 (Tustin Legacy) This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made as of , 20_ (the "Assignment Effective Date") by and between , a ("Transferor") which is the "Developer" under the DDA and , a ("Transferee"), [{to be inserted only in connection with a Transfer that is not a Permitted Transfer.] with the consent of the CITY OF TUSTIN, a municipal corporation of the State of California (the "City'),) with reference to the following matters: A. The City and [{if Initial Developer.] Transferor / {if predecessor to Transferor:} [Tustin Legacy Acquisition LLC, a Delaware limited liability company, a predecessor in interest to Transferor] entered into that certain Disposition and Development Agreement for Portions of Disposition Areas 2B, 2C and 8 (Tustin Legacy), dated as of , 202_ [{if amended:} ("Original DDA') as amended by that certain Amendment No. _ to Disposition and Development Agreement for Portions of Disposition Areas 2B, 2C and 8 (Tustin Legacy), dated as of , 20 (as amended, "DDA')] /[if not amended.) ("DDA')], relating to the conveyance from the City to Developer pursuant to the DDA of that certain real property legally described on Exhibit A attached hereto ("Real Property") and the subsequent development of the Real Property by Developer, all as more particularly set forth in the DDA. All initially capitalized terms not otherwise defined in this Assignment shall have the meanings ascribed to such terms in the DDA. B. Pursuant to the DDA, Developer agreed to develop and construct on the Real Property certain Improvements comprising the Market Rate Project and the Affordable Project. Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 1 Por. Disp. Areas 2B, 2C and 8 C. Developer and the City executed that certain Tustin Legacy Development Agreement ("DA"), dated , 20_, which was recorded in the Official Records against title to the Real Property on , 20_ as Instrument No. DO ffAlternative 1--If Close of Escrow has not previously occurred and will not take place concurrently with the Assignment.) The DDA contemplates the execution and delivery at the Close of Escrow of the Memorandum of DDA, the Special Restrictions, the Quitclaim Deed, the Landscape Installation and Maintenance Agreement, the Affordable Housing Declaration and the obligations of Developer under the TUSD Assignment,' which, together with the DDA and the DA and the other agreements then required to be executed by Developer (or Developer and the City) and Recorded and relating to one or more of the Development Parcels, are collectively referred to herein as the "Property Documents. ' J ffAlternative 2--If Close of Escrow has previously occurred or will concurrently take place.) In connection with the DDA, the instruments described on Exhibit B attached hereto have previously been Recorded with respect to the Real Property. Such instruments, together with the DDA, are collectively referred to herein as the "Property Documents. '] E. [[Alternative 1--if Close of Escrow has not occurred and will not take place concurrently with the Assignment.) Concurrently with the execution and delivery of this Assignment, Transferor is conveying to Transferee all right, title and interest of Transferor in and to the DDA, the DA and its legal and equitable interests, if any, in the Real Property as established by the DDA (the "Transfer Property')], [[Alternative 2--if Close of Escrow has occurred.) Concurrently with the execution and delivery of this Assignment, Transferor is conveying to Transferee all of the Transferable Interests of Developer under the DDA comprised of [[if all of the Real Property} the Real Property excluding only those portions of the Real Property previously conveyed to End Users ("Transfer Property') / [if only a portion of the Real Property as Certificates of Compliance have been issued for other portions} that certain real property legally described on Exhibit "A -I " attached hereto] ("Transfer Parcel')] together with (1) all Improvements, if any, located on the Transfer Parcel as of the Assignment Effective Date, (2) all appurtenances pertaining to the Transfer Parcel or such improvements, (3) all Entitlements, Development Permits and other permits, licenses, approvals and authorizations issued by any Governmental Authority in connection with the Transfer Parcel for development of the Improvements and the Project, and (4) the right to construct a maximum of Residential Units (being all of the units allocated to the Transfer Property pursuant to the Entitlements) [if Lot ' NTD: If assignment of Developer's position in TUSD Assignment is not feasible, then a new Assignment approved by TUSD and on the same terms is a precondition to Assignment. Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 13 is part of Transfer) of which , located on Lot 13, shall be developed and rented as Lower Income Units) and the (5) Intangible Property, collectively, the "Transfer Property'), [INSERT OTHER SPECIFICS) and excluding only those portions of the Transfer Property previously conveyed to End Users.) F. The Property Documents impose certain covenants, conditions, payment obligations and restrictions on Developer and the Transferable Interests and, prior to the filing of a Certificate of Compliance, and the DDA restricts Developer's ability to Transfer ownership and/or control of all or any portion of the Transferable Interests. G. Transferor desires to convey the Transfer Property to Transferee [[if Close of Escrow has occurred.) and to assign to Transferee all of Transferor's right, title and interest in and to the Property Documents with respect to the Transfer Property) (the "Transfer Event") [[to be inserted only in connection with a Transfer that is NOT a Permitted Transfer.), to have such assignment approved by the City, and to have Transferee approved by the City as a "Transferee" (as that term is defined in the DDA and used in Section 2 of the DDA).] In accordance with the requirements of the DDA, Transferee shall develop the Transfer Parcel in accordance with the requirements of the Property Documents. Pursuant to Section 2 of the DDA, a Transfer must include, among other things, the execution and delivery of an assignment and assumption agreement. Transferor and Transferee are entering into this Assignment in order to fulfill the obligations of Developer under the DDA and Transferee as a "Transferee" under the DDA. H. [[Insert if applicable.) [[Prior to/Simultaneously with/Following this Transfer Event.), Transferee [has acquired/will be acquiring)] the Transfer Property from Transferor pursuant to and in accordance with the terms of the DDA.J I. [[Insert if applicable.) Transferee is a Developer Affiliate of Transferor. NOW, THEREFORE, for good and valuable consideration, Transferor and Transferee agree as follows: 1. Assignment. 1.1. As of the Assignment Effective Date, Transferor hereby assigns, conveys, transfers, bargains, grants, sells and sets over to Transferee, as and to the extent owned or held by Transferor, the following (collectively, the "Assigned Interests"): 1.2. all right, title, interest and obligation of Transferor as the "Developer" under the [[if Close of Escrow has not occurred.) DDA and DAJ / [if Close of Escrow has occurred.) Property Documents] with respect to the Transfer Property, including (i) all benefits provided to and burdens imposed upon Developer pursuant to the [[if Close of Escrow has not occurred.) DDA / [if Close of Escrow has occurred.) Property Documents] with respect to the Transfer Property each of which runs with the land in accordance with its terms, and (ii) all benefits provided to and burdens imposed upon the Transfer Property and all improvements thereon and Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 3 Por. Disp. Areas 2B, 2C and 8 all personal property associated therewith pursuant to the [{if Close of Escrow has not occurred:} DDA and DA) / [if Close of Escrow has occurred:] Property Documents] arising from and after the Assignment Effective Date; provided that this assignment does not release Transferor from any obligations arising under the Property Documents with respect to Environmental Claims or with respect to Claims Accrued during Transferor's period of ownership thereof, or for which Developer may be liable if not released pursuant to Article 2 of the DDA and Transferor acknowledges and agrees for the benefit of Transferee and the City that as to the matters set forth in Section 2.1 below, Transferor and Transferee have joint and several liability, but solely to the extent set forth in Article 2 of the DDA: (a) all plans, specifications, maps, drawings, and other renderings owned by Transferor and relating to the [[if Close of Escrow has occurred:} Transfer Parcel], the Development Parcels and the Entitlements or such portion thereof as is subject to this Assignment; [and, if Close of Escrow has occurred:} (b) all Entitlements and Development Permits with respect to the Transfer Parcel; (c) all warranties, claims, and any similar rights of Transferor relating to and benefiting the Transfer Parcel or the rights and interests transferred pursuant to this Assignment; (d) all development rights relating to the Transfer Parcel. The Assigned Interests together with the Transfer Property are collectively referred to in this Assignment as the "Assigned Property." 2. Assumption. 2.1. Transferee, on behalf of itself and its successors and assigns, from and after the Assignment Effective Date, hereby (a) accepts the Assigned Property, (b) accepts all of the rights and benefits accruing to Developer under the [[if Close of Escrow has not occurred:} DDA and DA and upon execution thereof, the remaining Property Documents / [if Close of Escrow has occurred:} Property Documents], arising from and after the Assignment Effective Date, and (c) agrees with Transferor (and such agreement is expressly made for the benefit of the City and may be directly enforced by the City) to assume, and to be bound by, perform and discharge, (i) all of the obligations, conditions, limitations and restrictions related to the Assigned Property and/or the Assigned Interests imposed upon Developer under the [[if Close of Escrow has not occurred:} DDA and DA and upon execution thereof, the remaining Property Documents /[if Close of Escrow has occurred:} Property Documents] arising from and after the Assignment Effective Date, and (ii) all Environmental Claims that Accrue regardless of the time period in which such Environmental Claims Accrue, except to the extent stated in Section 10.2 of the DDA. 2.2. The assumption stated in Section 2.1 above does not release Transferor from any obligations arising under the Property Documents with respect to Environmental Claims or with respect to Claims Accrued during Transferor's period of ownership thereof, or for which Developer is may be liable if not released pursuant to Article 2 of the DDA and Transferee Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 4 Por. Disp. Areas 2B, 2C and 8 acknowledges and agrees for the benefit of Transferor and the City that as to the matters set forth in Section 2.1, Transferor and Transferee have joint and several liability, but solely to the extent set forth in Article 2 of the DDA. 2.3. Transferee shall remain fully responsible to perform and satisfy all of the obligations and liabilities assumed by Transferee pursuant to Section 2.1 above regardless of any of the following: (a) the value of the Assigned Property or the income to be derived from the Assigned Property; (b) the existence or non-existence of any liens, easements, covenants, conditions, restrictions, claims or encumbrances affecting the Assigned Property (including without limitation any of the foregoing arising from or related to the Entitlements or any of the Property Documents now or hereafter in effect); (c) the suitability of the Assigned Property for any and all future development of the Improvements and the uses and activities which Transferee or Transferor may conduct upon the Transfer Parcel and Improvements, including the development of Project on the Real Property as described in the Property Documents; (d) the ability of the City or any third party to complete, or likelihood of the completion of, any of the improvements and infrastructure described by the General Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program or any other plan or policy of the City or any other Governmental Authority; (e) the compliance with or enforcement by the City or any third party of the General Plan, the Specific Plan, the Special Restrictions applicable to the Transfer Property or any other portion of the Real Property or the special restrictions or other covenants, conditions restrictions and/or agreements applicable to other property at Tustin Legacy, the Tustin Legacy Backbone Infrastructure Program or any other agreement or governmental restriction or plan affecting Tustin Legacy; (f) the habitability, merchantability or fitness for a particular purpose of the Assigned Property; (g) the manner, quality, state of repair or lack of repair of the Assigned Property; (h) the nature, quality or condition of the Transfer Parcel, including water, soil and geology; (i) the compliance of or by the Assigned Property and/or its operation in accordance with any of the Entitlements or any Governmental Requirements, including without limitation, the National Environmental Policy Act, CEQA and the Americans with Disabilities Act of 1990; Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 5 Por. Disp. Areas 2B, 2C and 8 (j) the manner or quality of the construction or materials, if any, incorporated into any part of the Transfer Parcel or the Improvements; (k) the presence or absence of Hazardous Materials, including without limitation, asbestos or lead paint at, on, under, or adjacent to the Transfer Parcel, any other portion of the Real Property or in other locations at Tustin Legacy; (1) the content, completeness or accuracy of the information, documentation, studies, reports, surveys and other materials, delivered to Transferee by Transferor or others in connection with Transferee's review of the Assigned Property and the transactions contemplated in the Property Documents now or hereafter in effect; (m) the conformity of the existing improvements, if any, on the Transfer Parcel, and/or at Tustin Legacy to any plans or specifications; (n) compliance of the Assigned Property with past, current or future Governmental Requirements (including, without limitation, the Entitlements) relating to zoning, subdivision, planning, building, fire, safety, health or Environmental Matters and/or covenants, conditions, restrictions or deed restrictions; (o) the deficiency of any undershoring or of any drainage to, on or from the Transfer Parcel or any other portion of Tustin Legacy; (p) the condition of any adjoining land owned by the City, including, without limitation, any property and improvements covered by the Landscape Installation and Maintenance Agreement; (q) the fact that all or a portion of the Transfer Parcel may be located on or near an earthquake fault line or falls within an earthquake fault zone established under the Alquist- Priolo Earthquake Zone Act, California Public Resources Code Sections 2621-2630 or within a seismic hazard zone established under the Seismic Hazards Mapping Act, California Public Resources Code Sections 2690-2699.6 and Sections 3720-3725; (r) the existence or lack of vested land use, zoning or building entitlements affecting the Transfer Parcel; (s) the construction or lack of construction of Tustin Legacy or if constructed, the construction of Tustin Legacy in accordance with design guidelines, plans and specifications previously or to be prepared therefor; (t) the conditions, covenants and restrictions imposed or to be imposed upon the Assigned Property or any portion thereof under the Property Documents now or hereafter in effect, or the Entitlements; (u) the contents of the Memorandum of Agreement, the Federal Deed, the Base Closure Law and the FOST; and Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 6 Por. Disp. Areas 2B, 2C and 8 (v) any other matters. 2.4. No Representations or Warranties. Without limiting the applicability of all other provisions of the DDA which shall remain in effect and applicable to Transferee and the Transfer Property, Transferee recognizes that the City would not {sell/have sold) the Property except on an "AS, IS, WHERE IS, WITH ALL FAULTS" basis, and Transferee acknowledges that the City has made no representations or warranties of any kind whatsoever (excepting only those representations and warranties of the City expressly set forth in Sections 3.3 of the DDA made prior to and restated at the Close of Escrow), either express or implied in connection with any matters with respect to the Transfer Parcel or any portion thereof. 3. Representations and Warranties. 3.1. As an inducement to the City to consent to the Transfer and this Assignment and to perform its obligations hereunder, Transferee represents and warrants to the City as follows:2 (a) Transferee has the necessary expertise, experience, financial experience, financial capacity, qualifications and legal status necessary to perform as Transferee pursuant to this Assignment and to construct and Complete the Project as contemplated by this Assignment, and, in the event of a Transfer of the obligations with respect to development of the Affordable Project, to oversee the development of such units and to assure that the Affordable Housing Developer has the necessary expertise, experience and financial capacity to undertake development of the Affordable Project. Without limiting the foregoing, Developer (i) is and has determined that Transferee is experienced in the development, management, and sale of multifamily residential rental projects of the size and type described in this Assignment and (ii) understands the process and requirements associated with projects such as the Project described in the Property Documents. (b) Except as set forth in the DDA with respect to financing for construction of the Affordable Project, Transferee's acquisition of the Assigned Property and assumption of the Assigned Interests is subject to no financing contingency whatsoever with respect to either private or public financing and that its acquisition of third -party financing for the Market Rate Project and/or the Affordable Project is not a condition precedent to Transferee's acquisition of the Assigned Property, its assumption of the Assigned Interests or of its ability to fund construction of the Market Rate Project and/or the Affordable Project. (c) Transferee's acquisition of the Assigned Property, development of the Project and its other undertakings pursuant to this Assignment are for the purpose of timely development of the Project upon the Transfer Parcel in accordance with the Schedule of Performance attached to the DDA and not for speculation or land holding. (d) Transferee is a [insert type of legal entity], duly organized, [or incorporated or formed] and validly existing and in good standing under the laws of the State of [insert state of formation], is duly qualified to do business and in good standing in the State and in each other 2 NTD: The reps and warranties are conformed to the assignment from DDA Section 3.1. Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 7 Por. Disp. Areas 2B, 2C and 8 jurisdiction where the operation of its business or its ownership of property or the performance of Transferee's obligations under this Assignment make such qualification necessary. (e) Subject to all of the conditions in the DDA for the benefit of Transferee, Transferee has (or will have prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Assignment, the DDA, the DA and the other Property Documents) all requisite power and authority required to enter into this Assignment and the instruments referenced in this Assignment, to consummate the transaction contemplated hereby and thereby and to take any steps contemplated thereby or hereby, and to perform its obligations under this Assignment, the DDA, the DA and the Property Documents now or hereafter in effect. (f) Transferee has obtained (or will have obtained prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Assignment, the DDA, the DA and the Property Documents now or hereafter in effect) all required consents in connection with entering into this Assignment and the instruments and documents referenced in this Assignment to which Transferee is or shall be a party and the consummation of the transactions contemplated hereby and thereby. (g) The individuals executing this Assignment and the individuals that will execute the instruments referenced in this Assignment on behalf of Transferee have, or will have upon execution thereof, the legal power, right and actual authority to bind Transferee to the terms and conditions hereof and thereof. (h) This Assignment has been duly authorized, executed and delivered by Transferee and all documents required in this Assignment to be executed by Transferee pursuant to this Assignment shall be, at such time as they are required to be executed by Transferee, duly authorized, executed and delivered by Transferee and are or shall be, at such time as the same are required to be executed hereunder, valid, legally binding obligations of and enforceable against Transferee in accordance with their terms, except as enforceability may be limited by bankruptcy laws or other similar laws affecting creditors' rights. (i) Neither the execution or delivery of this Assignment or the Property Documents, nor the incurring of the obligations set forth in this Assignment or the Property Documents, and the certificates, declarations and other documents referenced therein, nor the consummation of the transactions contemplated in this Assignment, the DDA, the DA and the Property Documents now or hereafter in effect nor compliance with the terms of this Assignment, the DDA, the DA and the Property Documents now or hereafter in effect will violate any provision of law or any order of any court or Governmental Authority to which Transferee is subject or conflict with or result in the breach of any terms, conditions, or provisions of, or constitute a default under any bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreements or instruments to which Transferee, one of its owners, members or partners are a party and which affect the Assigned Property or the transactions contemplated by this Assignment. Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 8 Por. Disp. Areas 2B, 2C and 8 0) No attachments, execution proceedings, assignments of benefit to creditors, bankruptcy, reorganization or other proceedings are pending or, to the best of Transferee's knowledge, threatened against Transferee, or any of its owners, members or partners. (k) Except for those representations and warranties of the City expressly set forth in Sections 3.3 of the DDA made prior to and restated at the Close of Escrow, Transferee is relying solely upon its own inspections and investigations in proceeding with this Assignment and the transactions contemplated hereby and in the Property Documents now or hereafter in effect, and is not relying on the accuracy or reliability of any information provided to it by the City, on any oral or written representation or on any facts or conclusions of law made by the City, or any of its elected and appointed officials, officials, employees, agents, attorneys or representatives made in connection with this Assignment. In making such investigation and assessment, Transferee has been provided access to any persons, records or other sources of information which it has deemed appropriate to review and it has thereafter completed such investigation and assessment. Without limiting the generality of the foregoing provisions or any of the provisions of the Property Documents, Transferee acknowledges that the City has not made and will not make any representations or warranties concerning the condition of the Assigned Property, the compliance or non-compliance of the Assigned Property or any portion thereof with Environmental Laws or the existence or non-existence of Hazardous Materials in relation to the Assigned Property or any portion thereof or otherwise. (1) [Except as described on Exhibit ,J there are no adverse conditions or circumstances existing and no litigation or governmental action either pending or, to the knowledge of Transferee or its officers, directors, employees, agents, representatives, consultants, contractors, and other Persons accessing the Assigned Parcel by, through or with the permission or under the direction or auspices of Transferee, threatened, to which Transferor or any Controlling Person of Transferor is or may be a party or to which the Transfer Parcel are or may become subject, which would reasonably be expected to prevent or materially impair Transferee's ability to carry out its obligations under the Property Documents now or hereafter in effect to develop the Transfer Parcel and the Project or carry out its other obligations under the Property Documents now and hereafter in effect as contemplated by the terms of this Assignment and the Property Documents. (m) Except as set forth in this Assignment and the Property Documents now or hereafter in effect, Transferee has not paid or given, and will not pay or give, any third Person any money or other consideration for obtaining this Assignment, or the transactions contemplated by the Property Documents other than the purchase price paid to the Transferor and the normal cost of conducting business and cost of professional services such as architects, engineers and attorneys. (n) All reports, documents, instruments, information, and forms of evidence delivered by Transferee to the City concerning or related to this Assignment, the Property Documents and the transactions contemplated hereby and thereby are, to Transferee's knowledge, accurate and correct and sufficiently complete at the time of submission to give the City true and accurate knowledge of the subject matter, and do not contain any material misrepresentation or omission. Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 9 Por. Disp. Areas 2B, 2C and 8 (o) As of the Assignment Effective Date, Transferee will have the equity capital and financial capacity required for Completion of the Development without requirement of third - party financing. (p) Transferee does not have any contingent obligations or any other contracts the performance or nonperformance of which could adversely affect the ability of Transferee to fund the Project or to carry out its obligations under this Assignment or the Property Documents. Transferee has not and shall not undertake such additional projects as could reasonably be expected to jeopardize the sufficiency of such equity, capital and firm and binding commitments for the purposes expressed in the preceding sentence. (q) Transferee is capable of acquiring the Assigned Property and developing the Project without a capital partner or financing from a bank group or other institutional lender, and without utilizing the Assigned Property and/or the Market Rate Project and/or the Affordable Project or the Real Property as collateral, other than as set forth in the DDA with respect to financing for the Affordable Project. Transferee's representations and warranties set forth in this Section 3.1 shall be deemed to be restated at the Close of Escrow of the Assigned Property covered by this Assignment if the same has not yet occurred, and shall survive the Close of Escrow (and any other close of escrow with respect to conveyance of the Assigned Property to Transferee) until the earlier to occur of the following (a) termination of the DDA or (b) issuance of the Final Certificates of Compliance, and shall not be merged with the Quitclaim Deed or any other deed. As used in Section 3.1 and 3_2, "to Transferee's knowledge" and similar phrases means the actual present knowledge of the "Transferee Knowledge Parties" as of the Effective Date, in each case without any duty of inquiry; provided, however, that in the event any of the Transferee Knowledge Parties are unavailable at the time these representations and warranties set forth in this Section 3.1 are restated at the close of escrow for the Assigned Property covered by this Assignment, Transferee may specifically identify different Transferee's Knowledge Parties, subject to the City's reasonable approval. Notwithstanding anything to the contrary contained herein, none of the Transferee Knowledge Parties shall be personally liable for any inaccuracy or breach by Transferee of the representations and warranties contained in Section 3.1 or elsewhere in this Assignment. 3.2. Transferee Covenants Regarding_Representations and Warranties. Transferee shall promptly advise the City in writing if any of the Transferee Knowledge Parties becomes aware (without any duty of inquiry) that any representation or warranty made by Transferee in Section 3.1 is or becomes untrue in any material respect prior to the close of escrow of the Assigned Property covered by this Assignment. 3.3. Transferee Knowledge Parties. For purposes of the DDA, the "Developer Knowledge Parties" of Transferee (also referred to in this Assignment as the "Transferee Knowledge Parties") are , , and {insert names of employees, officers, etc. of Transferee acceptable discretion) to the City in its sole Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 10 Por. Disp. Areas 2B, 2C and 8 4. No Waiver or Modification. Nothing contained in this Assignment shall modify in any way any provisions of the Property Documents or the Entitlements. 5. Additional Documents. Transferor and Transferee shall each execute and deliver to the other party, upon demand, such further documents, instruments, and conveyances, and shall take such further actions as are necessary or desirable to effectuate the intent and purposes of this Assignment. In addition to the foregoing, Transferor shall reasonably cooperate with Transferee, at the expense of Transferee, to allow Transferee to submit and process any warranty claim under any warranty in which Transferee obtained an interest as part of the Assigned Interests. 6. Miscellaneous. 6.1. Modification. No amendment, change, modification or supplement to this Assignment shall be valid and binding on Transferor or Transferee unless it is represented in writing and signed by both Transferor and Transferee. [[To be inserted only in connection with a Transfer that is not a Permitted Transfer:) No amendment, change, modification or supplement to this Assignment shall be deemed to be part of the consent or deemed to be consented to by the City, unless the City executes a separate written consent to such amendment, change, modification or supplement.] 6.2. Applicable Law. This Assignment shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California's choice -of -law principles. 6.3. Binding Effect. ffect. This Assignment and the terms, provisions, promises, covenants and conditions hereof shall be binding upon and inure to the benefit of Transferor and Transferee and their respective heirs, legal representatives, successors and assigns. 6.4. Counterparts. This Assignment may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. This Assignment shall not be effective until the execution and delivery by Transferor and Transferee of at least one set of counterparts [{to be inserted only in connection with a Transfer that is not a Permitted Transfer:) (together with an executed counterpart of the City's consent attached to this Assignment).] A counterpart of this Assignment that is executed and delivered electronically (by facsimile machine or email) shall not be effective unless an ink -signed original executed copy of the signature page of this Assignment is also promptly delivered to the other party, and such ink - signed original executed page is actually received by the other party. Transferor and Transferee hereby authorize each other to detach and combine original signature pages and notarial acknowledgements and consolidate them into a single identical original. Any one of such completely executed counterparts shall be sufficient proof of this Assignment as a duly and validly executed agreement. 6.5. City as Third -Party BeneficiarX. Transferor and Transferee hereby acknowledge and agree that until Certificates of Compliance for all of the Development Parcels are recorded in the Official Records, the City shall be an intended third -party beneficiary under this Assignment Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 11 Por. Disp. Areas 2B, 2C and 8 and the City shall have the right to enforce the terms and provisions of this Assignment applicable to the City. Other than the City, there shall be no third -party beneficiaries of this Assignment. 6.6. [[To be inserted only in connection with a Transfer that is not a Permitted Transfer:} Notices. From and after the Assignment Effective Date, all notices that the City may desire or is required to deliver to the `Developer" under the DDA [{if the DA is then in effect), and the DA} / [if Close of Escrow has occurred:} and the Property Documents] and/or the Entitlements with respect to the Transfer Parcel, and pursuant to Section 18.6 of the DDA, shall be delivered to Transferee only at the following addresses: Transferee: [ entity with a copy to: [legal counsel] I (signatures on next page) Tustin Irvine Co DDA Att 17A Attachment 17A Tustin/Irvine Co., Assignment Agt 2.27.25 (HM) FINAL 12 Por. Disp. Areas 2B, 2C and 8 Transferor and Transferee each has caused this Assignment to be duly executed by its duly authorized officer as of the Assignment Effective Date Dated: Tustin Irvine Co DDA Att 17A Assignment Agt 2.27.25 (HM) FINAL TRANSFEROR: [_entity_], a By: Name:_ Title: By: Name:_ Title: TRANSFEREE: [_entity_], a By: Name:_ Title: By: Name: Title_ {City consent on next page} Attachment 17A Tustin/Irvine Co., S-1 Por. Disp. Areas 2B, 2C and 8 [{FOR TRANSFERS PURSUANT TO SECTION 2.2.3 OF THE DDA IF APPLICABLE PURSUANT TO SECTION 2.5.2) AND RELEASE OF TRANSFEROR] ACKNOWLEDGMENT AND CONSENT BY CITY OF TUSTIN By executing in the space set forth below, the City of Tustin hereby: (a) Acknowledges receipt of the Assignment and Assumption Agreement (the "Assignment") to which this Consent is attached; (b) Consents to the making of the Assignment between Transferor and Transferee, subject to the terms and conditions set forth in the Assignment; (c) This consent by the City constitutes the consent required pursuant to Article 2 of the DDA and constitutes satisfaction of Transferor's obligation to obtain the City's consent pursuant to Article 2 of the DDA; (d) Agrees that [insert name of Transferee], a (the assignee in the Assignment) shall be deemed by the City to be the "Developer" and "Owner" as applicable under the Property Documents with respect to the Transfer Property, from and after the Assignment Effective Date; (e) Confirms that [{applies only if there is a release of Transferor:} Transferor shall be released from any of its obligations related to the Transfer Property arising from and after the Assignment Effective Date; under the [{if Close of Escrow has not occurred.) DDA [{if the DA is then in effect), the DA / [if Close of Escrow has occurred:] and the Property Documents]; provided, however, that notwithstanding the assignment by Transferor and the assumption by Transferee in this Assignment, Transferor is not released from, and remains fully liable for all obligations and liabilities with respect to: (i) matters or circumstances (including any payment obligations) which relate to or Accrued during the period that such Transferor was the Developer hereunder (or during such longer period for which such Transferor is liable under the Property Documents), (ii) the releases set forth in Section 4.5.3 of the DDA and in the other Property Documents, including the Special Restrictions. (iii) Developer's indemnity obligations under the Property Documents as and to the extent set forth in the DDA and the Special Restrictions and (iv) Developer's obligations under the [{if Close of Escrow has not occurred.) DDA and DA the / [if Close of Escrow has occurred.] Property Documents] to the extent that the same arise prior to the Assignment Effective Date. (f) Acknowledges the new addresses for Notices for Transferee set forth in the Assignment and agrees that such new addresses shall be the effective notice addresses for the Developer from and after the Assignment Effective Date under the [[if Close of Escrow has not occurred.) DDA and DA / {if Close of Escrow has occurred.) Property Documents] and the Entitlements. This Consent shall not constitute evidence of compliance with or satisfaction of any obligation of Transferor under any of the Property Documents, or any other agreement between Tustin Irvine Co DDA Att 17A Assignment Attachment 17A Tustin/Irvine Co., Agt 2.27.25 (HM) FINAL City Consent Por. Disp. Areas 2B, 2C and 8 Page 1 of 3 Transferor and the City, except for the obligation of Transferor to obtain the City's consent to any Transfer pursuant to Section 2.2.3 of the DDA and the satisfaction of the conditions to granting by the City of such consent in the DDA. CITY OF TUSTIN: Dated: By: City Manager ATTEST: By: City Clerk APPROVED AS TO FORM By: City Attorney Special Real Estate Counsel to the City By: {signatures continue on following page) Tustin Irvine Co DDA Att 17A Assignment Attachment 17A Tustin/Irvine Co., Agt 2.27.25 (HM) FINAL City Consent Por. Disp. Areas 2B, 2C and 8 Page 2 of 3 ACKNOWLEDGED AND AGREED: TRANSFEROR [_entity_], a By: Name:_ Title: By: Name: Title_ TRANSFEREE: [_entity_], a By: Name:_ Title: By: Name: Title: Tustin Irvine Co DDA Att 17A Assignment Attachment 17A Tustin/Irvine Co., Agt 2.27.25 (HM) FINAL City Consent Por. Disp. Areas 2B, 2C and 8 Page 3 of 3 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co DDA Att 17A Assignment Agt 2.27.25 (HM) FINAL Signature: Signature of Notary Public Attachment 17A Tustin/Irvine Co., Por. Disp. Areas 2B, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co DDA Att 17A Assignment Agt 2.27.25 (HM) FINAL Signature: Signature of Notary Public Attachment 17A Tustin/Irvine Co., Por. Disp. Areas 2B, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Tustin Irvine Co DDA Att 17A Assignment Agt 2.27.25 (HM) FINAL Signature: Signature of Notary Public Attachment 17A Tustin/Irvine Co., Por. Disp. Areas 2B, 2C and 8 EXHIBIT A Legal Description of the Real Property {Attach Real Property legal description excluding oil, gas and water rights reserved by City in DDA or, if then executed, in the Quitclaim Deed} {to be attached) Tustin Irvine Co DDA Att 17A Assignment Exhibit A to Tustin/Irvine Co., Agt 2.27.25 (HM) FINAL Attachment 17A Por. Disp. Areas 2B, 2C and 8 EXHIBIT A-1 Legal Description of the Transfer Parcel {to be attached) {Attach legal description excluding oil, gas and water rights reserved by City in the Quitclaim Deed} Tustin Irvine Co DDA Att 17A Assignment Exhibit A-1 to Tustin/Irvine Co., Agt 2.27.25 (HM) FINAL Attachment 17A Por. Disp. Areas 2B, 2C and 8 EXHIBIT B 3 Certain Instruments Affecting the Development Parcels The following documents, executed by City and [Initial Developer) each dated as of 202_, comprise the Property Documents. 1. The DDA, having an effective date of 2. The DA, recorded in the Official Records of Orange County, California ("Official Records") against title to the Real Property on , 20_ as Instrument No. 3. The Memorandum of DDA, as Recorded in the Official Records against title to the Real Property [{If Recording information is available:} on , 20_ as Instrument No. J, providing record notice of the DDA and setting forth certain provisions of the DDA that survive Recording of a Certificate of Compliance with respect to any portion of the Real Property. 4. The Special Restrictions, as Recorded in the Official Records against title to the Development Parcels [{If Recording information is available.) on 20_ as Instrument No. J. 5. The Affordable Housing Declaration, as Recorded in the Official Records against title to Parcel C [{If Recording information is available:} on 20_ as Instrument No. J. 6. The Quitclaim Deed, as Recorded in the Official Records, [{If Recording information is available.) on , 20_ as Instrument No. 1. 7. The Landscape Installation and Maintenance Agreement, as Recorded in the Official Records against title to the Development Parcels [{If Recording information is available.) on , 20 as Instrument No. J. 8. The Public Access Covenant, as Recorded in the Official Records against title to the Development Parcels [{If Recording information is available:} on 20_ as Instrument No. J. 9. The TUSD Assignment Agreement. s This Exhibit to be included only if Alternative 2 is applicable for Recital C to this instrument. Tustin Irvine Co DDA Att 17A Assignment Exhibit B to Tustin/, Agt 2.27.25 (HM) FINAL Attachment 17A Por. Disp. Areas 213, 2C and 8 ATTACHMENT 17B FORM OF TRANSFEREE CERTIFICATE Reference is hereby made to that certain Disposition and Development Agreement for Portions of Disposition Areas 2B, 2C and 8 (Tustin Legacy) dated as of , 20_ [if amended, insert relevant amendment information) (as amended, the "DDA ")] /[if not amended.] (the DDA ")], by and between the City of Tustin, a municipal corporation of the State of California (the "City") and [ , a ] [[if no Assignment.] ("Developer') / [if Assignment:] ("Original Developer') which has, by assignment pursuant to that certain Assignment Agreement by and between , a ("Developer") and Original Developer), assigned all of its right, title and interest in and to the DDA to Developer.] Capitalized terms used and not defined herein shall have the meanings specified in the DDA. I, the undersigned, am the duly elected and qualified [state office held] of [[Insert name of Tranferee entity, a J ("Transferee") and am authorized by Transferee to make the certifications contained in this Certificate. I further certify for and on behalf of Transferee to the City, as of the date hereof as follows: 1. Transferee is the Assignee under an Assignment and Assumption Agreement dated between [insert Assignor name], a and Transferee (the "Transfer Agreement"). Transferee is [Insert full description of the relationship between Assignor and Transferee.] The Transferee is authorized to enter into the Transfer Agreement and the undersigned officer of Transferee has the authority from Transferee to execute and deliver this Certificate on behalf of Transferee, both as evidenced by the [Corporate resolution and/or other information] attached as Exhibit A. 2. Attached hereto as Exhibit B is a true and correct copy of the [Articles of Incorporation/Certificate of Formation] of Transferee and any and all amendments thereto in effect on the date hereof. 3. Attached hereto as Exhibit C is a true and correct copy of the [Bylaws/Operating Agreement or comparable document] of Transferee and any and all amendments thereto in effect on the date hereof. 4. Attached hereto as Exhibit D [is/are] true and correct copies of the certificate of good standing for Developer from the [[if foreign entity provide certificate from State of formation] Secretary of State and the] California Secretary of State, and [the%ach] attached certificate of good standing is dated not earlier than thirty (30) calendar days prior to the date of this Certificate. 5. [{If applicable:} attached hereto as Exhibit E is a true and correct copy of the Certificate of Status of Foreign Corporation of Transferee from the California Secretary of State and any and all amendments thereto in effect on the date hereof.] 6. [[If applicable:] attached hereto as Exhibit F is a true and correct copy of the Tustin Irvine Co DDA Att 17B Transferee Attachment 17B City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 County of Orange Fictitious Business Name Statement of Transferee and any and all amendments thereto in effect on the date hereof.] 7. Transferee has provided City with financial statements dated no more than ninety (90) calendar days prior to the date hereof that were prepared in accordance with GAAP. Since the date thereof, there have been no material adverse changes to the financial position of the Transferee. 8. Transferee has adequate liquid assets to fully fund the development of the Project, pay the Development Costs and to discharge all obligations under the DDA in accordance with the terms of the DDA. 9. Transferee has not taken any action looking toward its dissolution, no event, whether voluntary or involuntary, has occurred that has caused the dissolution of Transferee and there are no proceedings pending or contemplated for the merger, consolidation, conversion, dissolution, liquidation or termination of Transferee. 10. Transferee's ability to fully fund the development of the Project and to discharge all obligations under the DDA in accordance with its terms is not contingent on third party financing. 11. The Financing Plans remain in full force and effect and unmodified. As of the Transfer Date, the Financing Plans are accurate and complete. If in connection with the Transfer effected by the Transfer Agreement Transferee was required under the terms of the DDA to furnish the City with Evidence of Equity, Transferee has furnished the City with Evidence of Equity which the City has approved, and such Evidnece of Equity is or will be accurate and complete as of the Transfer Date. 12. This Certificate is being furnished to the City solely to assist it in conducting its investigation of Transferee's financial resources in connection with Transferee's obligation to discharge its obligations in accordance with the terms of the DDA. Transferee acknowledges and agrees that the City intends to rely on the information in this Certificate and this Certificate may be relied upon by the City for these purposes. Without the written consent of the Transferee no Person other than the City may rely on this Certificate for any purpose. In no event shall the individual executing this Certificate on behalf of the Transferee have any personal liability hereunder. (signatures on next page) Tustin Irvine Co DDA Att 17B Transferee Attachment 17B City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 Transferee Certificate Signature Page Dated: , 20 a , Transferee By: _ Name: Authorized Signatory Tustin Irvine Co DDA Att 17B Transferee Attachment 17B City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 EXHIBIT A [CORPORATE RESOLUTION/OTHER AUTHORIZATION] {to be attached at time of Transfer) Tustin Irvine Co DDA Att 17B Transferee Exhibit A to City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL Attachment 17B Por. Disp. Areas 213, 2C and 8 EXHIBIT B [ARTICLES OF INCORPORATION/CERTIFICATE OF FORMATION] {to be attached at time of Transfer) Tustin Irvine Co DDA Att 17B Transferee Exhibit B to City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL Attachment 17B Por. Disp. Areas 213, 2C and 8 EXHIBIT C [BYLAWS/OPERATING AGREEMENT] {to be attached at time of Transfer} Tustin Irvine Co DDA Att 17B Transferee Exhibit C to City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL Attachment 17B Por. Disp. Areas 213, 2C and 8 EXHIBIT D CERTIFICATE OF GOOD STANDING FROM THE CALIFORNIA [AND DELAWARE] SECRETARY[IES] OF STATE {to be attached at time of Transfer) Tustin Irvine Co DDA Att 17B Transferee Exhibit D to City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL Attachment 17B Por. Disp. Areas 213, 2C and 8 [EXHIBIT E CALIFORNIA CERTIFICATE OF STATUS OF FOREIGN CORPORATION] {to be attached at time of Transfer} Tustin Irvine Co DDA Att 17B Transferee Exhibit E to City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL Attachment 17B Por. Disp. Areas 213, 2C and 8 [EXHIBIT F FICTITIOUS NAME STATEMENT] {to be attached at time of Transfer) Tustin Irvine Co DDA Att 17B Transferee Exhibit F to City of Tustin/Irvine Co. Cert 02.27.25 (HM) FINAL Attachment 17B Por. Disp. Areas 213, 2C and 8 ATTACHMENT 18 FORM OF CITY CERTIFICATE REAFFIRMING REPRESENTATIONS AND WARRANTIES This Certificate is being delivered concurrently with the Close of Escrow pursuant to Section 7.2.1.1(xi) of that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 202_ {if amended, insert relevant amendment information) (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer"), and the City of Tustin, a municipal corporation of the State of California (the "City"). Capitalized terms used herein that are not defined herein shall have the meanings specified in the DDA. I, the undersigned, am the City Manager of the City, and I am authorized by the City to make the certifications contained in this Certificate. I hereby certify to Developer for and on behalf of the City that all of the representations and warranties made by the City in Sections 3.3 and 18.12.2 of the DDA (as the same may have been modified pursuant to Section 3.4 of the DDA) are true and correct as of the date hereof, except as set forth on Schedule 1 attached hereto. Without the written consent of the City: (i) no Person other than Developer may rely on this Certificate for any purpose; and (ii) copies of this Certificate may not be furnished to anyone for purposes of encouraging such reliance. In no event shall the individual executing this Certificate on behalf of the City have any personal liability hereunder. (signatures on next page) Tustin Irvine Co DDA Aft 18 City Date Down ATTACHMENT 18 City of Tustin/Irvine Co Cert 12.12.24 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 CITY OF TUSTIN: Dated: By: Aldo E. Schindler City Manager ATTEST: Erica N. Yasuda City Clerk APPROVED AS TO FORM David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City Amy E. Freilich Tustin Irvine Co DDA Att 18 City Date Down ATTACHMENT 18 City of Tustin/Irvine Co Cert 12.12.24 (HM) FINAL S-1 Por. Disp. Areas 213, 2C and 8 SCHEDULEI {If none —enter None} Tustin Irvine Co DDA Att 18 City Date Down ATTACHMENT 18 City of Tustin/Irvine Co Cert 12.12.24 (HM) FINAL SCHEDULE 1 Por. Disp. Areas 213, 2C and 8 ATTACHMENT 19A FORM OF DEVELOPER ORIGINAL CERTIFICATE REGARDING REPRESENTATIONS AND WARRANTIES This Certificate (this "Certificate") is being delivered pursuant to Section 4.6.2.1 of that certain Disposition and Development Agreement for Portions of Disposition Parcels 2B, 2C and 8 (Tustin Legacy), dated as of , 202_ {if amended, insert relevant amendment information) (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer"), and the City of Tustin, a municipal corporation of the State of California (the "City"). Capitalized terms used herein that are not defined herein shall have the meanings specified in the DDA. This Certificate is being delivered by Developer concurrently with the execution of the DDA to induce City to execute the DDA. I, the undersigned, am the duly elected and qualified [state office held] of Developer, and I am authorized by Developer to make the certifications contained in this Certificate. I further certify to the City for and on behalf of Developer as follows: 1. Representations and Warranties. Except as set forth on Schedule 1 attached hereto and made a part hereof, all of the representations and warranties made by Developer in the DDA, including, but not limited to, those contained in Sections 3.1, 13.3.1, and 18.12.1 of the DDA, are true and correct as of the date of this Certificate. 2. Financial and Other Information. The Market Rate Project Financing Plan and the Affordable Project Financing Plan (collectively, "Financing Plans") and all financial and other information submitted by Developer to the City in connection with the DDA, including, but not limited to, the financial information submitted by Developer to the City pursuant to Article 4 of the DDA, are true and correct as of the date of this Certificate. Developer has the financial capacity, Liquid Assets, and Net Worth to provide sufficient equity, when combined with the other sources and uses set forth in the Financing Plans, to fund the Development Costs for the Market Rate Project and the Affordable Project. The Financing Plans are sufficient to pay through issuance of the Certificate of Compliance for the Project the Development Costs and all other costs for the construction, marketing, and leasing of the Improvements as described in the Scope of Development for the Market Rate Project and the Affordable Project. 3. Certificate of Formation of Developer. Attached hereto as Exhibit "A" is a true and correct copy of the Certificate of Formation of Developer, which is dated as of November 14, 2024, filed with Secretary of State of the State of Delaware, which, except as attached, has not been amended or revised in any way and remains in full force and effect as of the date of this Certificate. 4. Limited Liability CompanyAgreement of Developer. Attached hereto as Exhibit `B" is a true and correct copy of the Limited Liability Company Agreement of Developer, dated November 14, 2024, which, except as attached, has not been amended or revised in any way and remains in full force and effect as of the date of this Certificate. Tustin Irvine Co DDA Att 19A Developer ATTACHMENT 19A City of Tustin/Irvine Co Por Parcels 213, Orig Cert 2.12.25 (HM) FINAL 1 2C, and 8 5. Good Standing. Attached hereto as Exhibit C are true and correct copies of the certificate of good standing for Developer from the Delaware Secretary of State and the California Secretary of State and each attached certificate of good standing is dated not earlier than thirty (30) days prior to the date of this Certificate. 6. Consents and Approvals. Attached hereto as Exhibit D are true and correct copies of all required approvals, consents, resolutions or other proceedings of Developer to authorize execution and delivery of the DDA by Developer and performance of the matters required to be performed by Developer thereunder, and in each case the conditions to the effectiveness thereof have occurred in accordance with the documents attached hereto as Exhibit D. 7. Fictitious Business Name Statement. Attached hereto as Exhibit E are true and correct copies of the County of Orange Fictitious Business Name Statement of Developer, if any, together with any and all amendments thereto in effect on the Effective Date. 8. Authority of Signatory. [Insert name of person signing], is a [insert office held] of Developer and is in such capacity, duly authorized by Developer to execute the DDA and any and all instruments, documents and other agreements required in connection therewith in accordance with the proceedings showing authority attached hereto as Exhibit D. Without the written consent of Developer, no Person other than the City may rely on this Certificate for any purpose. In no event shall the individual executing this Certificate on behalf of Developer have any personal liability hereunder. {signatures on following page) Tustin Irvine Co DDA Att 19A Developer ATTACHMENT 19A City of Tustin/Irvine Co Por Parcels 213, Orig Cert 2.12.25 (HM) FINAL 2 2C, and 8 "DEVELOPER" Dated: , 202 TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 19A Developer ATTACHMENT 19A City of Tustin/Irvine Co Por Parcels 213, Orig Cert 2.12.25 (HM) FINAL S-1 2C, and 8 EXHIBIT A CERTIFICATE OF FORMATION [see attached] Tustin Irvine Co DDA Att 19A Developer ATTACHMENT 19A City of Tustin/Irvine Co Por Parcels Orig Cert 2.12.25 (HM) FINAL EXHIBIT A 213, 2C, and 8 EXHIBIT B LIMITED LIABILITY COMPANY AGREEMENT [see attachedl Tustin Irvine Co DDA Att 19A Developer Orig Cert 2.12.25 (HM) FINAL ATTACHMENT 19A EXHIBIT B City of Tustin/Irvine Co Por Parcels 2B, 2C, and 8 EXHIBIT C CERTIFICATES OF GOOD STANDING [see attachedl Tustin Irvine Co DDA Att 19A Developer Orig Cert 2.12.25 (HM) FINAL ATTACHMENT 19A EXHIBIT C City of Tustin/Irvine Co Por Parcels 2B, 2C, and 8 EXHIBIT D CONSENTS AND APPROVALS [see attachedl Tustin Irvine Co DDA Att 19A Developer Orig Cert 2.12.25 (HM) FINAL ATTACHMENT 19A EXHIBIT D City of Tustin/Irvine Co Por Parcels 2B, 2C, and 8 EXHIBIT E FICTITIOUS NAME STATEMENT [see attachedl Tustin Irvine Co DDA Att 19A Developer Orig Cert 2.12.25 (HM) FINAL ATTACHMENT 19A EXHIBIT E City of Tustin/Irvine Co Por Parcels 2B, 2C, and 8 Schedule 1 I If none —enter None} Tustin Irvine Co DDA Att 19A Developer Orig Cert 2.12.25 (HM) FINAL ATTACHMENT 19A SCHEDULEI City of Tustin/Irvine Co Por Parcels 213, 2C, and 8 ATTACHMENT 19B FORM OF DEVELOPER DATE DOWN AND REAFFIRMATION CERTIFICATE This Developer Date Down and Reaffirmation Certificate (this "Date Down Certificate") is being delivered pursuant to Section 7.2.2.2(xii) of that certain Disposition and Development Agreement for Portions of Disposition Parcels 2B, 2C and 8 (Tustin Legacy), dated as of , 202_ [if amended, insert relevant amendment information} (the "DDA"), by and between Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Developer"), and the City of Tustin, a municipal corporation of the State of California (the "City") concurrently with the Close of Escrow (which term and other capitalized terms used herein that are not defined herein being used with the meanings specified in the DDA). I, the undersigned, am the duly elected and qualified [state office held] of Developer, and I am authorized by Developer to make the certifications contained in this Date Down Certificate. I further certify to the City for and on behalf of Developer as follows: 1. Representations and Warranties. Except as set forth on Schedule 1 attached hereto and made a part hereof, all of the representations and warranties made by Developer in the DDA, including, but not limited to, those contained in Sections 3.1, 13.3.1, and 18.12.1 of the DDA, are true and correct as of the date hereof and all information and statements contained in the Developer's Original Certificate Regarding Representations and Warranties dated , 202_ ("Original Certificate") remain true and correct as of the date of this Date Down Certificate. 2. Financial and Other Information. Except as set forth on Schedule 2 attached hereto and made a part hereof: (a) The Market Rate Project Financing Plan and Affordable Project Financing Plan and all financial and other information submitted by Developer to the City in connection with the DDA, including but not limited to the financial information submitted by Developer pursuant to Article 4 of the DDA, as the same has been modified or supplemented by any Updated Market Rate Project Financing Plan and any Updated Affordable Project Financing Plan submitted by Developer pursuant to the DDA in accordance with Section 4.6 of the DDA (as so modified and supplemented, collectively, the "Financing Plans"), and all financial and other information submitted to the City on or since the Effective Date of the DDA, remain true and correct as of the date of this Date Down Certificate. As of the date of this Date Down Certificate, to the knowledge of Developer, there exists no circumstance that is reasonably likely to have a material adverse effect on Developer's ability to construct, market, and lease the Improvements as described in the Scope of Development for the Market Rate Project and the Affordable Project in accordance with the Financing Plans. (b) Developer has the financial capacity, Liquid Assets and Net Worth to provide sufficient equity, when combined with the other sources and uses set forth in the Financing Plans, as applicable, to fund the Development Costs for the Market Rate Project and the Affordable Project. Tustin Irvine Co DDA Att 19B Dev Date ATTACHMENT 19B City of Tustin/Irvine Co Por Parcels 213, Down Cert 2.12.25 (HM) FINAL 1 2C, and 8 (c) The Financing Plans remain sufficient to pay through issuance of the Certificate of Compliance for the Project, all Development Costs of the Market Rate Project and the Affordable Project and all other costs for the construction, marketing, and leasing of the Improvements as described in the Scope of Development for the Market Rate Project and the Affordable Project. 3. Certificate of Formation; Bylaws. As of the date of this Date Down Certificate, and except as otherwise specifically set forth on Schedule 3 attached hereto and made a part hereof, each of the Certificate of Formation of Developer, the Bylaws of Developer, and all consents and approvals referred to in Section 6 of Original Certificate remain in full force and effect and in the forms attached as exhibits to the Original Certificate and have not been modified, revoked or otherwise amended or terminated. 4. Good Standing. Developer remains in good standing in Delaware and California as of the date of this Date Down Certificate. Attached to this Date Down Certificate as Exhibit A are true and correct copies of the certificates of good standing for Developer from the Developer Secretary of State and the California Secretary of State, and each attached certificate of good standing is dated not earlier than thirty (30) days prior to the date of this Date Down Certificate. 5. Authority of Si ng atory. [Insert name of person signing], is a [insert office held] of Developer and is in such capacity, duly authorized by Developer to execute any and all instruments, documents and other agreements required in connection with the DDA in accordance with the proceedings showing authority attached to the Original Certificate. Without the written consent of Developer, no Person other than the City may rely on this Date Down Certificate for any purpose. In no event shall the individual executing this Date Down Certificate on behalf of Developer have any personal liability hereunder. (signatures on following page) Tustin Irvine Co DDA Att 19B Dev Date ATTACHMENT 19B City of Tustin/Irvine Co Por Parcels 213, Down Cert 2.12.25 (HM) FINAL 2 2C, and 8 Dated: "DEVELOPER" TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 19B Developer ATTACHMENT 19B City of Tustin/Irvine Co Por Parcels 213, Date Down Cert 2.12.25 (HM) S-1 2C, and 8 EXHIBIT A CERTIFICATES OF GOOD STANDING [see attached] Tustin Irvine Co DDA Att 19B Developer ATTACHMENT 19B City of Tustin/Irvine Co Por Parcels Date Down Cert 2.12.25 (HM) EXHIBIT A 213, 2C, and 8 Schedule 1 I If none —enter None} Tustin Irvine Co DDA Att 19B Developer Date Down Cert 2.12.25 (HM) ATTACHMENT 19B SCHEDULEI City of Tustin/Irvine Co Por Parcels 213, 2C, and 8 Schedule 2 I If none —enter None} Tustin Irvine Co DDA Att 19B Dev Date Down Cert 2.12.25 (HM) FINAL ATTACHMENT 19B SCHEDULE2 City of Tustin/Irvine Co Por Parcels 213, 2C, and 8 Schedule 3 {If none —enter None} Tustin Irvine Co DDA Att 19B Dev Date Down Cert 2.12.25 (HM) FINAL ATTACHMENT 19B SCHEDULE3 City of Tustin/Irvine Co Por Parcels 213, 2C, and 8 ATTACHMENT 20 DECLARATION OF SPECIAL RESTRICTIONS FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 (TUSTIN LEGACY) CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383. Recording requested by and when recorded mail to: The City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Citv Manacer SPACE ABOVE THIS LINE FOR RECORDER'S USE DECLARATION OF SPECIAL RESTRICTIONS FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 (TUSTIN LEGACY) This DECLARATION OF SPECIAL RESTRICTIONS FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 (TUSTIN LEGACY) (this "Declaration'), is made as of , 20_ (the "Restrictions Date") by the CITY OF TUSTIN, a municipal corporation of the State of California (as further defined below, the "City"), and is acknowledged by TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company (as further defined below, "Developer"). A. Pursuant to the Defense Base Closure and Realignment Act of 1990 (Part A of Title XXIX of Public Law 101-510; 10 U.S.C. Section 2687 Note) ("Base Closure Law"), as amended, the Federal Government (defined below) determined to close the Marine Corps Air Station -Tustin ("MCAS Tustin') located substantially in the City of Tustin, California. In 1992, the City was designated as the Lead Agency or Local Redevelopment Authority for preparation of a reuse plan for MCAS Tustin in order to facilitate the closure of MCAS Tustin and its reuse in furtherance of the economic development of the City and surrounding region. The MCAS Tustin Reuse Plan developed in accordance with this procedure was adopted by the City Council of the City of Tustin ("City Council") on October 17, 1996 and amended in September 1998 ("Reuse Plan'). B. In May 2002, the Navy and the City entered into that certain Agreement Between the United States of America and the City of Tustin, California for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated as of May 13, 2002 ("Navy Conveyance Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 Agreement"), pursuant to which the Navy agreed to convey approximately 1,153 acres of MCAS Tustin to the City. The 1,153 acres of MCAS Tustin located within the City of Tustin either conveyed by the Navy to the City or subject to ground lease between the Navy and the City is referred to in this Declaration as "Tustin Legacy". C. The "Development Parcels", comprised of approximately 19.4 acres of land located in the City of Tustin, County of Orange, California and legally described on Exhibit A attached hereto and incorporated herein by reference, constitute a portion of Tustin Legacy conveyed to the City pursuant to the Navy Conveyance Agreement. The Development Parcels are also subject to that certain Declaration of Affordable Housing Covenants and Regulatory Agreement dated as of the Restrictions Date by and between the Tustin Housing Authority and the City, and accepted and consented to by Developer (as the same may be amended, modified or supplemented from time to time, "Affordable Housing Declaration") recorded substantially concurrently with the recording of this Declaration in the Office of the County Clerk Recorder, Orange County, California ("Official Records"). D. On or about the Restrictions Date, Developer is acquiring the Property pursuant to that certain Tustin Legacy Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 2025 (as the same may be amended, modified or supplemented from time to time, "DDA"). The "Property" consists of and shall for all purposes hereunder mean: (a) the "Real Property" which is comprised of the Development Parcels but excluding therefrom the matters described in Section 2 of the Quitclaim Deed, (b) all existing improvements, if any, presently located on the Development Parcels, (c) all rights, claims (other than claims under insurance policies maintained by or for the benefit of the City) and appurtenances pertaining to the Development Parcels or such improvements, and (d) all permits, licenses, approvals and authorizations issued by any Governmental Authority in connection with the Development Parcels. E. Upon acquisition of the Property, Developer has agreed to develop the Real Property with a multifamily apartment project consisting of the Market Rate Project and related Improvements on Lot 11 and Lot 12 and the Affordable Project and related Improvements on Lot 13 (collectively, "Project") pursuant to and in accordance with the DDA and the Other Agreements. F. The City now desires to impose on the Real Property this Declaration, for these purposes, among others: (i) to preserve the general plan for the use and maintenance of Tustin Legacy, including the plan for the use and maintenance of the Development Parcels as a High Quality Residential Project, (ii) to ensure proper use and maintenance of the Project, and (iii) in general, to provide for maintenance of the Project meeting High Quality Residential Standards, in each case upon and subject to the terms of this Declaration. G. This Declaration also sets forth those rights of the City and certain obligations of Developer and its Successor Owners specified in the DDA which shall remain in full force and effect for the applicable term specified herein, notwithstanding the termination of the DDA and/or the recording in the Official Records by the City of a Certificate of Compliance for any Parcel. In order to create and preserve the value, desirability and attractiveness of the Development Parcels, Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 for the term set forth herein, Developer and its Successor Owners shall be required to hold and convey title to the Real Property subject to the covenants, conditions and restrictions set forth in this Declaration. H. Capitalized terms not otherwise defined herein shall have the meaning set forth for such terms on Exhibit B attached hereto and incorporated herein by this reference. NOW, THEREFORE, the City hereby covenants and declares that the Property is now held and, to the specific extent and subject to the limitations more specifically set forth herein, shall hereafter be held, transferred, conveyed, sold, leased, subleased, encumbered, mortgaged, used, occupied and improved subject to the covenants, conditions and restrictions herein set forth, each and all of which is and are for the purpose of uniformly enhancing and protecting the value, attractiveness and desirability of the Development Parcels and Tustin Legacy. The covenants, conditions and restrictions set forth in the Declaration shall run with the Real Property and are hereby declared to (a) inure to the benefit of and pass with, the Real Property and every portion of or interest in the Project for the benefit of the City Property and City and its Governmental Successors, (b) in accordance with the provisions of these Restrictions, including Sections 6 and 7 of this Declaration, shall be binding upon Developer and each Successor Owner claiming by through or under Developer or any Successor Owner but excluding any End Users, and (c) be enforceable as restrictions and equitable servitudes against the Real Property. Following its conveyance of the Real Property, the City and its Governmental Successors shall retain the right to enforce the restrictions and equitable servitudes set forth in this Declaration against the Real Property and the same shall be enforceable solely by the City and its Governmental Successors and no private right of action shall exist or be implied by the existence of this Declaration. The Restrictions shall survive termination of the DDA, the Close of Escrow and the execution and recording in the Official Records by the City of each Certificate of Compliance, and shall not merge with any deed and shall, as to each Parcel, continue in effect for the Term of this Declaration or with respect to any provision (including those inserted from the DDA) stating a longer or shorter term, for such longer period as is set forth in such provision. The City hereby further declares as follows: 1. Covenants, Conditions and Restrictions. For the benefit of the City, and as an inducement for the City to consummate the transactions contemplated by the DDA, but subject to Section 8.2, the violation of any of the Restrictions (as hereinafter defined) set forth in this Declaration for the applicable period set forth herein, shall at the City's option constitute a Material Default hereunder and entitle the City to exercise any of the rights and remedies set forth herein. The covenants, conditions and restrictions set forth in this Declaration are collectively referred to herein as the "Restrictions". Although certain provisions of the DDA are included in this Declaration and remain in effect in accordance with their terms (and in that manner survive the termination of the DDA), during any period in which the DDA is in effect as to a Parcel, the provisions in each such Section of this Declaration shall not be interpreted more broadly than, nor be applied in addition to, nor be deemed to increase the obligations of Developer with respect to that Parcel in the counterpart provisions in the DDA. In the event any conflict arises during the period in which the DDA is in effect as to a Parcel between the provisions in each such Section of Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 this Declaration and the counterpart provisions in the DDA, the provisions in the DDA shall control as to such Parcel; provided that recording in the Official Records by the City of a Certificate of Compliance for a Parcel shall not affect, modify or terminate the provisions of the DDA sections incorporated into this Declaration as to such Parcel. For purposes of this Declaration, the following shall apply: (i) The terms "include" and "including" (in each case, without initial capitalization) mean, respectively, "include, without limitation" and "including, without limitation. (ii) When stated in connection with a performance obligation, the word "shall" imposes a mandatory requirement to perform the stated act or requirement (and shall be synonymous with "must") and the term "shall not" imposes a mandatory requirement not to perform the stated act or requirement (and shall be synonymous with "must not"). The word "may" is permissive and does not impose any mandatory requirement to perform the stated act. (iii) When stated in connection with the discretion of any Person (i.e., in the "sole discretion" of such Person, the word "sole" means "sole and absolute". (iv) For avoidance of doubt, the term "binding upon each and every Person claiming by, through or under Developer or any Successor Owner" shall mean and include with respect to the Affordable Project Provisions, Affordable Project, Affordable Project Improvements and Lot 13 Property only, each Person that is Affordable Housing Developer during any period in which such Person is the Ground Lessee under a Ground Lease and each Successor Ground Lessee during any period in which it is the Ground Lessee under a Ground Lease. 2. Use Covenants and Restrictions. The Real Property shall be utilized only for residential uses as well as such uses as are ancillary or incidental thereto, consistent with the Entitlements and Development Permits and in conformance with the Affordable Housing Declaration, which Affordable Housing Declaration, after recording in the Official Records by the City of the Final Certificate of Compliance, shall apply only to the Lot 13 Real Property and include each Parcel created from any future subdivision thereof. From and after issuance by the City of a (temporary) certificate of occupancy as to the first Building on each Parcel, such Parcel shall be utilized as a High Quality Residential Project. For the avoidance of doubt, while referenced in this Section 2, the enforcement of the terms and conditions in the Affordable Housing Declaration shall be pursuant to the provisions set forth in the Affordable Housing Declaration and not pursuant to the provisions set forth in this Declaration. 3. Maintenance Covenants and Restrictions. 3.1. Maintenance Standards. Each Owner shall, from and after the Close of Escrow, maintain the Real Property, and the Improvements, consistent with the following Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 requirements: 3.1.1. Prior to commencement of construction, each Owner shall be responsible, at its sole cost and expense, (i) to secure and maintain the Real Property and the Improvements in a clean, safe and secure condition, in compliance with all Governmental Requirements, (ii) to abate weeds and other hazards and nuisances on the Real Property and the Improvements, (iii) to erect and maintain barricades and fencing, and provide security, with respect to the Real Property and Improvements as reasonably necessary to protect the public and any Improvements already constructed, and (iv) to maintain (in compliance with all Governmental Requirements) erosion control on the Real Property. 3.1.2. From the date of commencement and during the continuance of construction of any Improvements, each Owner shall maintain the Real Property and the Improvements then under construction consistent with normal and customary construction industry practice. 3.1.3. From and after the issuance of a (temporary) certificate of occupancy for any Building on the Real Property, each Owner shall maintain all Improvements on such Real Property not then under construction in a clean, sanitary, orderly and attractive condition, and in accordance with High Quality Residential Standards, subject to reasonable wear and tear and further subject to Section 3.2, change or damage by casualty or condemnation. Each Owner shall be required to meet the standard for the quality of maintenance of the Improvements on the Real Property required by this Section regardless of whether or not a specific item of maintenance is listed below, except that, in each case, and notwithstanding anything in this Section 3.1.3 to the contrary, no Owner shall be obligated to maintain improvements owned or controlled by or on property owned or maintained by a public utility or utility franchisee, lighting and landscaping district or, except as set forth in the Landscape Installation and Maintenance Agreement, by the City. Representative items of maintenance shall include: (1) maintenance, repair and replacement on a regular schedule, consistent with High Quality Residential Standards, of all Improvements; (2) regular inspection for graffiti or damage or deterioration or failure, and reasonably prompt (or, in the case of graffiti, within 48 hours) repainting or repair or replacement of all surfaces, fencing, walls, equipment, etc., as necessary; (3) emptying of trash receptacles and removal of litter; (4) regular sweeping of Private Drives and Sidewalks throughout the Real Property; (5) fertilizing, irrigating, trimming and replacing vegetation within the Common Area Improvements, as necessary; (6) cleaning exterior windows on a regular basis; (7) painting the Buildings and other structures on the Real Property on a regular program and prior to the material deterioration of the painted surfaces; (8) conducting roof inspections on a regular basis and maintaining roofs in a leak -free and weather -tight condition and (9) complying with all Governmental Requirements. Maintenance of the Excluded Improvements is not an obligation of any Owner under this Declaration. 3.2. Casualty. In the event of casualty occurring with respect to any portion of the Real Property, the Owner(s) of such affected portions shall, in its sole discretion, either (i) promptly repair the Improvements and prior to commencement of such repair maintain the portions of the Real Property subject to casualty in accordance with Section 3.1.2, or (ii) if such Owner Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 5 Por. Disp. Areas 213, 2C and 8 determines in its sole discretion not to repair such Improvements, maintain the applicable Parcel subject to casualty in accordance with Section 3.1.1. In each case, upon commencement of any construction with respect to the affected portions of the Real Property and until completion thereof, the Owner(s) thereof shall comply with the requirements set forth in Section 3.1.2 and upon completion of the repair work, shall comply with the requirements set forth in Section 3.1.3. Notwithstanding the foregoing, the portions of the Real Property unaffected by any such casualty shall be maintained as otherwise required by this Declaration, including pursuant to Section 3.1.3, and unless not economically feasible due to cost or physical proximity as demonstrated to the reasonable satisfaction of the City, the applicable Owner(s) shall provide appropriate barriers to shield the portions of the Real Property remaining in use and adjacent public roadways from those subject to casualty and from adjoining streets in order to maintain the portions of the Real Property and the Improvements thereon unaffected by such casualty as required pursuant to Section 3.1.3. 3.3. Failure of Owner to Maintain. If an Owner fails to maintain the Improvements on the Real Property in accordance with the standards for the quality of maintenance set forth in Section 3, then subject to the provisions of Sections 8.1 and 8.2, such failure shall constitute a Material Default by Owner. 3.4. City Rights to Maintain. In the event of a Material Default by any Owner relating to a breach of this Section 3, the City or its designee shall have the right but not the obligation to enter the Real Property, upon reasonable prior written notice, to correct any such failure, and hold such Owner responsible for the cost thereof, and such cost, until paid, shall constitute a City Lien, as and the extent described in Section 8.5. 3.5. Maintenance Responsibilities. Each Owner's maintenance responsibilities as to each Parcel shall be vested in and the obligation of the entity that owns such Parcel. Each Owner shall have the right to subcontract, assign, or delegate its maintenance responsibilities under this Declaration to a first-class property management company or to a Ground Lessee, provided that such subcontracting, assignment, or delegation shall not relieve such Owner of any liability for its obligations under this Section 3. 4. Term. The covenants in this Declaration shall, except as otherwise provided herein, commence as of the Restrictions Date and remain in full force and effect until the date which is (a) as to each Parcel comprising all or any portion of Lot 11 or Lot 12 described on Exhibit A to this Declaration, the twenty-fifth (25th) anniversary of the Recording in the Official Records by the City of the Certificate of Compliance for that Parcel, and (b) as to each Parcel comprising all or any portion of Lot 13 described on Exhibit A to this Declaration, the date upon which the Affordable Housing Declaration shall terminate ("Term"), unless in either case released at an earlier date by the City in writing. Upon the expiration of the Term with respect to any Parcel, this Declaration shall automatically terminate with respect to such Parcel, provided that the provisions of this Declaration that are incorporated from the DDA and that are stated to survive for a different term or in perpetuity, shall survive and remain in effect for the period specified therein, notwithstanding the Close of Escrow, the termination of the DDA and/or the issuance by or recording in the Official Records by the City of a Certificate of Compliance for any Parcel. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 6 Por. Disp. Areas 213, 2C and 8 5. Design of the Project. Each Owner shall comply with the Entitlements and Development Permits as and to the extent required by the DDA and the Development Agreement in connection with its development of the Project and the Real Property. 6. DDA Provisions Incorporated into Declaration. Pursuant to the DDA, the City has imposed certain covenants, conditions and restrictions on the Real Property, each of which is set forth verbatim below in italics and each of which is hereby declared to be a covenant running with the land in accordance with Sections 1, 6 and 7 of this Declaration. Notwithstanding any other provision of this Declaration, during the term of the DDA as applicable to each Parcel, the default and notice of default provisions and the remedies of the City and Developer under the DDA shall govern and supersede the default, notice of default and remedies provisions of this Declaration with respect to each of the following incorporated provisions. Within the italicized language which follows, certain terms shall have the following meanings and the remaining terms shall have the meanings set forth in this Declaration including Exhibit B attached hereto: the term "Developer" and the "term" City shall each have the meanings set forth in Exhibit B attached hereto; the term "Agreement" shall mean the DDA as defined in this Declaration; the terms "Close of Escrow" and "Closing Date" shall mean the Restrictions Date of this Declaration; the term "Developer Representatives" shall mean "Owner Representatives" as defined in this Declaration; the term "Property" shall mean the "Property" as defined in this Declaration; the term "Project" shall mean the "Project" as defined in this Declaration; the term "Quitclaim Deed" shall mean the "Quitclaim Deed" as defined in this Declaration; the term "Special Restrictions" shall mean this Declaration: 6.1. AS -IS, WHERE IS. Section 4.5.2 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.2. Release. Section 4.5.3 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.3. Construction Liens. Section 8.11.6 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.4. Disclaimer of Responsibility by City and Exculpation. Section 8.13 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.5. Local, State and Federal Laws. The applicable portion of Section 8.14 of the DDA provides as follows: "INSERT TEXT FROM DDA" Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 7 Por. Disp. Areas 213, 2C and 8 follows: follows: 6.6. Liens, Taxes and Assessments. Section 8.15 of the DDA provides as "INSERT TEXT FROM DDA" 6.7. Duration of Article 8 Indemnities. Section 8.16 of the DDA provides as "INSERT TEXT FROM DDA" 6.8. Developer's Indemnity. Section 10.1 of the DDA provides as follows: "INSERT TEXT FROM DDA" Notwithstanding the inclusion of Section 10.1 of the DDA in this Declaration, following recording in the Official Records by the City of a Certificate of Compliance for a Parcel within the Lot 13 Real Property, and during the term of any Ground Lease with respect to such Parcel, the foregoing obligations under this Section 6.8 shall not apply to any Claim relating in any manner to Ground Lessee's performance or non-performance of the Affordable Project Provisions, and instead Sections 1.4 and 14 of the Affordable Housing Declaration shall govern and control with respect to such Claim. 6.9. Environmental Indemnity. Section 10.2 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.10. Survival and Duration of Article 10 Provisions. Section 10.3 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.11. Claims Response. Section 10.4 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.12. Release Notification and Remedial Actions. Section 10.5 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.13. Conflict with Section 330 and Other Federal Government Obligations. Section 10.6 of the DDA provides as follows: "INSERT TEXT FROM DDA" Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 8 Por. Disp. Areas 213, 2C and 8 follows: 6.14. Insurance and Indemnification. Section 10.7 of the DDA provides as "INSERT TEXT FROM DDA" 6.15. Selection of Counsel and Defense Obligations. Section 10.8 of the DDA provides as follows: "INSERT TEXT FROM DDA" 6.16. Settlement Procedures. Section 10.9 of the DDA provides as follows: "INSERT TEXT FROM DDA" 7. Enforcement of Covenants. 7.1. General Purpose and Constructive Notice. Subject to the applicable time limitations set forth in Sections 4 and 6 of this Declaration, each Owner that now or hereafter owns or acquires title to any portion of the Real Property is and shall be conclusively deemed to have consented to and agreed to every Restriction, provision, covenant, condition, right and limitation contained in this Declaration, including the provisions of this Declaration incorporated from the DDA, whether or not any reference to this Declaration is contained in the instrument by which such Person acquired title to the Real Property or portion thereof. 7.2. This Declaration and the Restrictions, covenants and conditions hereof constitute and shall be enforceable as equitable servitudes and covenants running with the land comprising the Real Property and burdening the Real Property and, as to each Parcel in accordance with the provisions of this Declaration, including the provisions in this Section 7, binding upon Developer and each Successor Owner and each and every Person claiming by, through or under Developer or any Successor Owner, but excluding any End Users, for the benefit of the City and its Governmental Successors. Each Owner and Ground Lessee shall only be liable for the obligations and liabilities under this Declaration related to the Parcel owned or leased by such Person and which Accrue during the period that such Owner owns its interest or Ground Lessee holds a leasehold interest in a Ground Lease in the applicable Parcel and such Owner and Ground Lessee shall not be liable for those obligations or liabilities that first Accrue after such period of ownership and no such Owner or Ground Lessee shall be liable for those obligations or liabilities of another Owner or Ground Lessee, except that: (a) the foregoing shall not be deemed to modify or negate any longer or shorter periods of liability or scope of responsibility for any Owner pursuant to the provisions of Section 6 of this Declaration or, during its term, the terms of the DDA or the Affordable Housing Declaration and during its term, where in conflict, the terms of the DDA shall govern over those in this Declaration; (b) prior to recording in the Official Records by the City of a Certificate of Compliance for a Parcel pursuant to the DDA, any Transfer (as defined in the DDA) Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 9 Por. Disp. Areas 213, 2C and 8 shall be permitted only in accordance with the requirements of the DDA and Developer shall remain liable under this Declaration for matters Accruing prior to Recording in the Official Records by the City of the Certificate of Compliance for that Parcel, notwithstanding the Transfer, until released from its obligations pursuant to the DDA or in the conditions to Transfer (as defined in the DDA) imposed by the City, if any; (c) following recording in the Official Records by the City of a Certificate of Compliance for a Parcel, if a transferee is an Affiliate of the transferor Owner or Ground Lessee, the transferee Owner or Ground Lessee, as applicable, shall be deemed to have assumed and be liable for the obligations and liabilities of the transferor Owner or Ground Lessee, as applicable, and each consecutive prior transferor Affiliate as though such transferee Owner or Ground Lessee, as applicable, had held joint ownership (or a joint leasehold interest) with the transferor Owner or Ground Lessee, as applicable, and each consecutive prior transferor Affiliate of it during their respective prior consecutive periods of ownership or lease of such Parcel; and (d) for all purposes under this Declaration, the Owner of "Lot 1" as shown on the Tentative Tract Map shall be deemed to be the Owner of "Lot A" as shown on the Tentative Tract Map, as such lots may be modified by the Developer Final Tract Map, and the "Parcel" owned by such Owner of "Lot 1" shall be deemed to include "Lot A"; and (e) Notwithstanding the foregoing or any other provision of this Declaration, the City shall have the right to look to Guarantor and each Person that is the Developer under the DDA (unless released pursuant to Article 2 of the DDA), jointly and severally, rather than any Successor Owner or Ground Lessee or Successor Ground Lessee, with respect to the indemnity provided pursuant to DDA Section 10.1(viii) (incorporated into Section 6.8 of this Declaration). 7.3. Each Owner shall, notwithstanding that there is a Ground Lease in effect, be responsible to perform all obligations and assume all liabilities of Owner under this Declaration with respect to each Parcel owned by such Owner and the Improvements thereon as though the Ground Lease were not in effect. 7.4. Inspection. In addition to, and without in any way limiting, the City's rights or authority in its governmental capacity, upon one (1) Business Days' notice, or such other period as may be explicitly set forth in this Declaration, and subject to reasonable security provisions of Developer and any rights of Developer's tenants, licensees or other occupants, the City and its authorized representatives may from time to time enter upon and inspect the Parcel or any portion thereof or any Improvements thereon (excluding, however, the interior space of any buildings on the Parcel, including any apartment units) during regular business hours (except in the case of an emergency) for purposes of ascertaining compliance with the Restrictions, but without obligation to do so or liability therefor. 7.5. Restrictions on Transfer During Term of DDA. Nothing in this Declaration shall permit Developer to Transfer (as defined in the DDA) any Parcel prior to Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 10 Por. Disp. Areas 213, 2C and 8 recording in the Official Records by the City of a Certificate of Compliance for such Parcel except as permitted by the DDA. 7.6. Other Restrictions. Nothing contained in this Declaration shall prejudice or diminish in any way the City's rights or authority in its governmental capacity, nor the rights and authority of any other Governmental Authority having jurisdiction over the Project or any portion thereof, and the exercise of any rights or remedies by the City hereunder shall be considered separate from and independent of any breach or violation by Developer which is also a breach or violation of any Governmental Requirements. 8. Potential and Material Defaults. In the event of any breach, violation or failure to perform or satisfy any of the Restrictions which has not been cured within the applicable cure period set forth below, the City may in its sole discretion enforce any one or more of the remedies set forth in Section 8.3. 8.1. Potential Defaults. Except as otherwise provided in this Declaration, it shall be a "Potential Default" if- 8. 1. 1. Developer fails to pay timely any sum required to be paid to the City pursuant to this Declaration; or 8.1.2. Developer fails to perform, or delays in the performance of, in whole or in part, any obligation required to be performed under, or otherwise violates the provisions of this Declaration, other than as set forth in Section 8.1.1. 8.2. Material Defaults. 8.2.1. A Potential Default under Section 8.1.1 shall become a "Material Default" if it is not cured within fifteen (15) Business Days of receipt by Developer of the notice of Potential Default from the City. 8.2.2. A Potential Default under Section 8.1.2 shall become a "Material Default" if it is not cured, at Developer's expense, (a) within thirty (30) calendar days after receipt by Developer of written notice of such Potential Default from the City, or (b) if such cure cannot be reasonably accomplished within such thirty (30) calendar day period, within one hundred twenty (120) calendar days (or if a Ground Lease is then in effect, within one hundred fifty (150) calendar days as to the Lot 13 Property only) after receiving written notice of such Potential Default from the City, but only if Developer has commenced such cure within such thirty (30) calendar day period and diligently pursues such cure to completion, or (c) within such longer period of time as may be expressly granted by the City in the City's sole discretion, taking into account the nature of the Potential Default and diligence and good faith efforts of Developer to cure such Potential Default. The foregoing cure periods for Potential Defaults under this Section 8.2.2 shall be extended by Force Majeure Delays. 8.3. Certain City Remedies. In the event of a Material Default, and without limiting the rights and remedies of the City under the DDA, the City may do any or all of the Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 11 Por. Disp. Areas 213, 2C and 8 following: 8.3.1. The City may bring a suit for damages for any compensable breach of or noncompliance with any of the Restrictions, or declaratory relief to determine the enforceability of any of the Restrictions; provided, however, that (i) such damages shall be limited to direct (actual) damages to the City for such Material Default, and (ii) the City hereby expressly waives, releases and relinquishes any and all right to any consequential, exemplary or punitive damages; and/or 8.3.2. The City may bring an action in equity or otherwise for specific performance to enforce compliance with the Restrictions or an injunction to enjoin the continuance of any such breach or violation thereof, whether or not the City exercises any other remedy set forth herein, and each Owner acknowledges that a particular or ongoing violation of one or more of the Restrictions may cause the City to suffer material injury or damage not compensable in money (including irreparable effects on the type and quality of development on the Real Property or portions thereof and/or the maintenance of the Real Property and Improvements thereon in accordance with the standards for the quality of maintenance set forth in Section 3); and/or 8.3.3. Any such breach or violation of the Restrictions or any provision hereof is hereby declared to be a nuisance, and City shall be entitled, upon not less than one (1) Business Days' notice, except in the case of an emergency to enter the Parcel and summarily abate and remove, without further legal process to the maximum extent permitted by law, any structure, thing or condition that may exist in violation of any of these Restrictions, or to prosecute any remedy allowed by law or equity for the abatement of such nuisance against any person or entity acting or failing to act in violation of the Restrictions, all at the sole cost and expense of the Owner. 8.4. Failure to Timely Pay Amounts Due. If there is a Material Default under this Section 8, then in addition to any other remedies conferred upon the City pursuant to this Declaration, Developer shall pay to the City, in addition to all principal amounts due, interest from the date of such payment or part thereof was due until the date paid at the default rate of eight percent (8%) per annum, compounded annually, but in no event in excess of the maximum legal rate. 8.5. Lien Rights. The delinquent amount for any Material Default of any payments due hereunder, together with any late charges or interest due on any such delinquent payment, reasonable attorneys' fees, experts' fees and consultants' fees and collection costs related to such delinquent payment shall, to the greatest extent permitted by applicable law, be a lien and charge upon the Real Property and improvements for which such Owner is then the fee owner with respect to such Material Default and shall be a continuing lien upon such Real Property in favor of the City ("City Lien") and such City Lien shall apply to all Parcels for which no Certificate of Compliance has been recorded in the Official Records by the City, provided that following recording in the Official Records by the City of a Certificate of Compliance for a Parcel, the City Lien shall apply to the Parcel for which such certificate has been recorded in the Official Records only if the default arises from or is related to such Parcel or if the City Lien is as a result of a default by the Owner thereof; and provided, further that subject to Section 9, such lien and charge in favor of the City shall be paramount to the lien and charge of any Mortgage upon fee title to Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 12 Por. Disp. Areas 213, 2C and 8 such Parcel and all other liens, except all taxes, bonds, assessments and other levies which, by law, would be superior thereto. The City Lien on a Parcel may be enforced by foreclosure and sale of the Parcel after failure by the Owner thereof to timely pay any special assessment as provided in this Agreement. The sale shall be conducted in accordance with the provisions of the California Civil Code applicable to the exercise of powers of sale in Mortgages, or in any manner permitted by law. 9. Rights of Ground Lessee, Mortgagees and Mortgagee Protection. No breach or violation of this Declaration, nor any foreclosure of any City Lien, shall permit the City as declarant under this Declaration, to terminate any Ground Lease, nor defeat or render invalid Ground Lessee's interest as Ground Lessee in any portion of the Lot 13 Property unless the City or its designee shall first have acquired fee title to the land then subject to a Ground Lease and shall have terminated the Ground Lease pursuant to its terms. No breach or violation of this Declaration, nor any City Lien, shall defeat or render invalid the lien of, prior to recording in the Official Records by the City of a Certificate of Compliance for a Parcel, any Permitted Leasehold Mortgage for such Parcel, and thereafter as to such Parcel, any Mortgage securing a loan made in good faith and for value, provided, however, that this Declaration and all provisions hereof shall be binding upon each and every Person claiming by, through our under Developer or any Successor Owner including each other occupant of a Parcel or portion thereof whose title is acquired by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise, but (a) such Successor Owner or Successor Ground Lessee, as applicable, shall have a reasonable time, after acquiring title, to cure any violations or correct and change any facts giving rise to the City's rights under this Declaration occurring prior to such transfer of title or occupancy and which are reasonably capable of being cured or changed (i.e., within the time periods set forth in Section 8.2.2 commencing as of the date of such acquisition of title thereto), provided that such Successor Owner or Successor Ground Lessee, as applicable, diligently acts to effect such cure or change (and in the event of such diligent and timely cure, such Successor Owner or Successor Ground Lessee, as applicable, shall have no further liability in connection with such prior violation or the continued existence of such violation until such cure is completed), and (b) City's right to damages or abatement shall not be applicable as to such Successor Owner or Successor Ground Lessee, as applicable, with regard to any noncurable default occurring prior to the time such Successor Owner or Successor Ground Lessee, as applicable, acquired title. Notwithstanding the foregoing, each Successor Owner and Successor Ground Lessee, as applicable, shall be required to use the Parcel in accordance with the Restrictions set forth in this Declaration and the provisions of this Section shall be subject to the rights and protections afforded to any Permitted Leasehold Mortgagee pursuant to any Subordination Agreement between the City and such Permitted Leasehold Mortgagee, and the right and protections of the Permitted Leasehold Mortgagee under the Subordination Agreement shall not be abridged, limited or otherwise affected by the provisions of this Section or any other provisions of this Declaration. 10. Non -Discrimination Covenants. There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 13 Por. Disp. Areas 213, 2C and 8 segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. 11. Miscellaneous. 11.1. Modification. No amendment, change, modification or supplement to this Declaration shall be valid and binding unless (a) it is represented in writing and signed by (i) the City, as the first party, and (ii) Developer and/or any Successor Owners then owning any portion of the Parcel or any interest in the Project, as the second parties; provided such instrument is signed by the first party and all of the second parties then holding an interest in the Parcel and/or the Project, and (b) is duly recorded in the Official Records. This Declaration shall be administered by the City Manager. Any matter to be approved by the City shall be deemed approved, and any action to be taken by the City shall be deemed taken, upon written approval by the City Manager (or his or her designee). The City Manager or his or her designee shall have the authority to issue interpretations with respect to this Declaration and to determine whether any action requires the approval of the City Council. 11.2. Applicable Law. This Declaration shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California's choice -of -law principles. 11.3. Attorneys' Fees and Costs. In the event that any legal or equitable action or proceeding shall be instituted between the City and Developer or any Successor Owner relating to this Declaration, the party prevailing in such action shall be entitled to recover from the other party all of its costs, including court costs and reasonable attorneys' fees. During any period in which the DDA is in effect as to a Parcel, as to matters in Section 6 of this Declaration with respect to such Parcel, the provisions of Section 18.2 of the DDA shall supersede the provisions of this Section in all respects. 11.4. Conflict of Interest. No appointed or elected official or employee of the City shall have any personal interest, direct or indirect, in this Declaration nor shall any official or employee participate in any decision relating to the Declaration which affects his or her interests or the interests of any corporation, partnership, or association in which he or she is directly or indirectly interested. Developer warrants that it has not paid or given and will not pay or give any third person any money or other consideration for obtaining this Declaration. 11.5. Non -liability of City Officials and Employees. No elected or appointed official, representative, employee, agent, consultant, legal counsel or employee of the City shall be personally liable under this Declaration. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 14 Por. Disp. Areas 213, 2C and 8 11.6. Construction and Interpretation of Declaration. 11.6.1. The language in all parts of this Declaration shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Person. 11.6.2. Any provision of this Declaration that is deemed to be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to the extent of the invalidity or unenforceability of such provision and shall be deemed stricken from this Declaration. Any stricken provision shall not affect the legality, enforceability or validity of the remainder of this Declaration. If any provision or part thereof of this Declaration is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is legally possible. 11.6.3. The captions of the sections and subsections in this Declaration are inserted solely for convenience and under no circumstances are they or any of them to be treated or construed as part of this instrument. 11.6.4. References in this instrument to "this Declaration" mean, refer to and include this instrument as well as any riders, schedules, exhibits, addenda and attachments hereto (which are hereby incorporated in this Declaration by this reference). Any references to any covenant, conditions, obligation and/or undertaking, "herein," "hereunder," or "pursuant hereto" (or language of like import) shall mean, refer to and include the covenants, obligations and undertakings existing pursuant to this Declaration and any riders, schedules, exhibits, addenda, attachments or other documents affixed to this instrument. 11.6.5. As used in this Declaration and as the context may require, the singular includes the plural and vice versa and the masculine gender includes the feminine and vice versa. 11.6.6. As used in this Declaration the words "include" and "including" mean respectively "include, without limitation" and "including, without limitation". 11.6.7. Unless otherwise indicated, references in this Declaration to sections, paragraphs, clauses, exhibits, attachments and schedules are to the same contained in or attached to this Declaration. 11.7. Time of Essence. Time is of the essence with respect to all provisions of this Declaration in which a definite time for performance is specified. 11.8. Counterparts. This Declaration may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. This Declaration shall not be effective until the execution by the City and Developer of at least one set of counterparts. Any one of such completely executed counterparts shall be sufficient proof of this Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 15 Por. Disp. Areas 213, 2C and 8 Declaration. 11.9. Estoppel. The City shall, from time to time upon not less than twenty (20) days' notice from Developer, but not more often than annually unless in connection with a sale or refinancing of the Parcel and/or Improvements, execute and deliver to Developer a certificate in recordable form stating that this Declaration is unmodified and in full force and effect or, if modified, that this Declaration is in full force and effect, as modified, and stating the modifications and stating whether or not, to the actual knowledge of the City Manager (and without duty of inquiry), (a) a Potential Default or Material Default by Developer has occurred and is continuing and (b) if a Potential Default or Material Default by Developer has occurred and is continuing, specifying the same. In connection with any such certificate, and to the extent that the City still has copies thereof in its possession or control, the City shall provide a copy of the DDA, together with all amendments, supplements and modifications thereto. Any such certificate may be relied upon by Developer or any prospective purchaser or lender of Developer. Developer shall promptly pay all third party costs incurred by the City in the preparation and delivery of any such estoppel, provided that such costs shall not exceed Five Thousand Dollars ($5,000.00) with respect to any single estoppel. 11.10. Force Majeure Procedures. If any Person having an obligation under this Declaration (the "Claiming Party") believes that it is entitled to an extension of time to perform any obligation hereunder due to Force Majeure Delay, it shall notify the Person to which that obligation is owed (the "Second Party") in writing within thirty (30) calendar days from the date upon which the Claiming Party becomes aware of such Force Majeure Delay, describing the Force Majeure Delay, when and how the Claiming Party obtained knowledge thereof, the date the event commenced, the steps the Claiming Party anticipates taking to respond to such Force Majeure Delay, and the estimated delay resulting from such Force Majeure Delay and response. The extension for Force Majeure Delay shall be granted or denied in writing in by the Second Party in its reasonable discretion. If the Claiming Party fails to notify the Second Party in writing of its request for a given Force Majeure Delay within the thirty (30) calendar days specified above, there shall be no extension for such Force Majeure Delay. 11.11. Notices. All notices, demands, consents, requests and other communications required or permitted to be given under this Declaration shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered; (b) three (3) Business Days after such notice has been sent by U.S. Postal Service via certified mail, return receipt requested, postage prepaid, and addressed to the party to whom notice is being sent as set forth below; (c) the next Business Day after such notice has been deposited with an overnight delivery service reasonably approved by the Parties (Federal Express, Overnite Express, United Parcel Service and U.S. Postal Service are deemed approved), postage prepaid, addressed to the party to whom notice is being sent as set forth below with next -business -day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider; or (d) when transmitted if sent by email to the email address for the applicable representative; provided that notices given by email shall not be effective unless either (i) a duplicate copy of such notice is promptly sent by any method permitted under this Section 11.11 other than by email (provided that the recipient party need not receive such duplicate copy prior Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 16 Por. Disp. Areas 213, 2C and 8 to any deadline set forth herein); or (ii) the receiving party delivers a written confirmation of receipt for such notice either by, email or any other method permitted under this Section. Unless otherwise provided in writing, all notices with respect to this Declaration shall be addressed as follows: City: City Manager City Attorney City of Tustin 300 Centennial Way Tustin, CA 92780 Email: citymanagerktustinca.org With a copy to: Deputy City Manager — Real Property City of Tustin 300 Centennial Way Tustin, CA 92780 Email: director. edktustinca. org And with a copy to: City Attorney Woodruff & Smart, APC 555 Anton Blvd., Suite 1200 Costa Mesa, CA 92626 Developer/Owner: Senior Vice President Irvine Company Apartment Development 550 Newport Center Drive Newport Beach, CA 92660 General Counsel Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL 17 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the City has executed this Declaration as of the date first set forth above. ATTEST: Erica N. Yasuda City Clerk APPROVED AS TO FORM David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City Amy E. Freilich "CITY" CITY OF TUSTIN, a California municipal corporation Aldo E. Schindler City Manager (signatures continued on next page) Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL S-1 Por. Disp. Areas 213, 2C and 8 DEVELOPER ACKNOWLEDGEMENT BY EXECUTING THIS DECLARATION OF SPECIAL RESTRICTIONS FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8, Developer, on behalf of itself and all subsequent owners of the Real Property or any portion thereof and each and every Person claiming by, through or under Developer or any such successor owners hereby acknowledges and agrees that, upon obtaining title to the Real Property, Developer hereby assumes and agrees, on behalf of itself, each Successor Owner, each Ground Lessee and Successor Ground Lessee and each and every Person claiming by, through or under Developer or any Successor Owner, Ground Lessee or Successor Ground Lessee, to be bound by all of the obligations and liabilities, covenants, conditions, and restrictions herein. Dated: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL S-2 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: Signature of Notary Public Tustin Irvine Co DDA Att 20 Special Restrictions 03.11.25 (HM) FINAL Place Notary Seal and/or Stamp above S-3 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: Signature of Notary Public Tustin Irvine Co DDA Att 20 Special Restrictions 03.11.25 (HM) FINAL Place Notary Seal and/or Stamp above S-3 City of Tustin/Irvine Company Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: Signature of Notary Public Place Notary Seal and/or Stamp above Tustin Irvine Co DDA Att 20 Special S-3 City of Tustin/Irvine Company Restrictions 03.11.25 (HM) FINAL Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PARCELS The Land referred to herein below is situated in the City of Tustin, County of Orange, State of California, and is described as follows: LOTS 11, 12 AND 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. FOR CONVEYANCING PURPOSES ONLY: APN'S 430-481-02, 03, 04 AND 05 Tustin Irvine Co DDA Att 20 Special Attachment 20 City of Tustin/Irvine Company Restrictions 03.11.25 (HM) FINAL Exhibit A Por. Disp. Areas 213, 2C and 8 EXHIBIT B DEFINED TERMS' "Accrue", "Accrued" or "Accruing" shall mean with respect to any Claim, the date and time such Claim arises as a matter of law and could then or thereafter be asserted by any Person. "Action" shall mean any action, suit, proceeding, counterclaim or other proceeding for any relief against another Person, declaratory or otherwise. "Active Negligence" shall mean an affirmative act performed negligently and not a failure to act. "Affiliate" shall mean with respect to any Owner of Ground Lessee, any entity that directly or indirectly Controls, is Controlled by or is under common Control with that Owner or Ground Lessee, respectively. "Affordable Housing Declaration" shall have the meaning set forth in Recital C. "Affordable Housing Developer" shall mean the Person that is a counterparty to the Lot 13 PDA with Developer and/or that is Ground Lessee. "Affordable Project" shall mean the development, construction, maintenance, leasing and use of the Improvements on Lot 13 including all Parcels thereof. "Affordable Project Improvements" shall mean the Project Improvements constructed or to be constructed on the Lot 13 Real Property. "Affordable Project Provisions" shall mean those provisions of the DDA during its term, this Declaration (including the provisions incorporated from the DDA) and the Other Agreements that have been delegated by Developer to Ground Lessee pursuant to the Lot 13 PDA and/or the Ground Lease then in effect, and shall include, unless otherwise set forth in such Lot 13 PDA or the Ground Lease, all aspects of design, development, financing, construction and operation of the Affordable Project on the applicable Parcel of the Lot 13 Real Property in accordance with the DDA, this Declaration and the Other Agreements, and as and to the extent made or deemed to be made by Affordable Housing Developer, Ground Lessee or Successor Ground Lessee and related to the Affordable Project and/or Affordable Project Improvements, all indemnities, waivers and releases under the DDA, this Declaration and the Other Agreements. "Agreement" shall mean the DDA as defined in this Declaration. "Approved Plans" (a) shall, during the term of the DDA, have the meaning set forth in the 1 NTD: Defined terms under review by both parties and will need to be updated and revised once all text is inserted in Declaration. To prepare for the final document, several of the defined terms/definitions that will be required for the DDA incorporated sections have been included in this Exhibit B in advance of placement of the referenced DDA sections in Section 6 of this Declaration. Please do not strike. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 2B, 2C and 8 1 DDA and (b) upon termination of the DDA as to each Parcel shall mean, as to such Parcel, construction level drawings consistent with the Entitlement Approvals and approved by the City or responsible agency as required to obtain any required Development Permits. "Base Closure Law" shall have the meaning set forth in Recital A. "Basic Concept Plan" shall mean the design, phasing, product mix and other related submittals by Developer to the City on or before the Restrictions Date for purposes of obtaining Entitlements approvals and to satisfy the City's design approval rights pursuant to the DDA and shall include the phasing and product mix as set forth in the Phasing Plan, Site Plan and the Scope of Development attached to the DDA, as the same may have been revised from time to time in accordance with the terms of the DDA. "Building" or "Buildings" shall mean each building and structure on the Real Property, including each building containing Residential Units. "Business Day(s)" shall mean any day other than Saturday, Sunday and each City observed legal holiday. "CEQA" shall mean the California Environmental Quality Act and implementing regulations and guidelines, contained in Cal. Public Resources Code Section 21000 et seq., and Cal. Code of Regulations, title 14, Section 15000 et seq., respectively. "Certificate of Compliance" shall mean a certificate of compliance executed by the City and recorded in the Official Records by the City against each Parcel upon satisfaction of the conditions precedent thereto and otherwise in accordance with the DDA (and evidencing the termination of the DDA in accordance with its terms with respect to such Parcel). "City" shall mean the City of Tustin and each assignee or successor to the City of Tustin's rights and powers under this Declaration provided that in this Declaration where the term "City and its Governmental Successors" is used, the term "City" shall be deemed to mean solely the City of Tustin. "City Code" shall mean the Tustin City Code for the City of Tustin, California, as the same may be amended from time to time. "City Council" shall have the meaning set forth in Recital A. "City Hall" shall mean the seat of government for the City of Tustin, presently located at 300 Centennial Way, Tustin, California. "City Indemnified Parties" shall mean the City and its appointed and elected officials, agents, attorneys, affiliates, employees, contractors, consultants and representatives. "City Lien" shall have the meaning set forth in Section 8.5. "City Manager" shall mean the City Council appointed City Manager of the City of Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 2 Tustin, or other designee as identified in writing by the City Manager. "City Released Parties" shall mean the City, the Successor Agency to the Tustin Community Redevelopment Agency, the Tustin Housing Authority, the Tustin Finance Authority, and their respective elected and appointed officials, employees, agents, representatives, attorneys, affiliates, consultants, contractors, successors and assigns. "Claim" or "Claims" shall mean any and all claims, actions, causes of action, demands, orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including attorneys' fees, fees of expert witnesses, consultants' fees and court and litigation costs), costs and expenses attributable to compliance with judicial and regulatory orders and requirements, fines, penalties, liens, taxes, monetary payment or reimbursements or any type of compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen. "Claiming Party" shall have the meaning set forth in Section 11.10. "Close of Escrow" shall mean the conveyance of the Property by the City to Developer upon the Restrictions Date. "Closing Date" shall mean the Restrictions Date. "Common Area" shall mean the privately owned open space and other privately owned portions of the Real Property proposed to be maintained by Developer for the benefit of all residents, upon which land the Common Area Improvements are proposed to be located as depicted in the Public Access Covenant and/or the Developer Final Tract Map; provided that for all purposes under this Declaration, the Owner of the Common Area shall be the Owner of the Parcel upon which such Common Area is located and the Owner of Lot 1 as shown on the Tentative Tract Map shall be deemed to be the Owner of Lot A as shown on the Tentative Tract Map, as such Lots may be modified by the Developer Final Tract Map, and the "Parcel" comprised of Lot 1 shall be deemed to include Lot A. "Common Area Improvements" shall mean the applicable privately owned Improvements on the Common Area and shall include the Publicly Accessible Common Area Improvements, Private Drives and Sidewalks, Buildings, structures and improvements, including parking lots, swimming pools and related restrooms, landscaping, parks and open space amenities, roadways, drives, bike paths, alleyways, sidewalks, paseos, utilities, courtyards, hardscaping, fountains and other infrastructure and key interior amenities of the Market Rate Project and/or the Affordable Project to be available for and used in common by the residents of the Market Rate Project and/or the Affordable Project, as applicable, on the Real Property as approved in the Approved Plans but specifically excludes the Excluded Improvements. "Construction Liens" shall have the meaning set forth in Section 8.11.6 of the DDA (as incorporated in Section 6.3 of this Declaration). Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 3 "Control" "Controlled" or "Controlling", as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current ability to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests, acting as the manager of a limited liability company, the administrative general partner of a partnership or otherwise. Notwithstanding the foregoing, the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute "Control" if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person. "Controlling Person" shall mean (i) any Person who Controls Developer during the Term and (ii) any Person who Controls a Controlling Person. Notwithstanding the foregoing, if a Person has the right to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of Developer, such Person shall not be deemed to be a Controlling Person unless such Person also possesses, directly or indirectly (including through one or more intermediaries), the power to direct or cause the direction of the management and policies of Developer. "DDA" shall have the meaning set forth in Recital D. "Declaration" shall have the meaning set forth in the preamble to this Declaration. "Defended Party" shall have the meaning set forth in Section 10.8 of the DDA (as incorporated in Section 6.15 of this Declaration). "Defending Party" shall have the meaning set forth in Section 10.8 of the DDA (as incorporated in Section 6.15 of this Declaration). "Developer" shall mean (i) prior to recording in the Official Records by the City of a Certificate of Compliance for a Parcel, each Person that is the Developer under the DDA and (ii) following recording in the Official Records by the City of a Certificate of Compliance for a Parcel, the Owner of the applicable Parcel. "Developer Final Tract Map" shall mean a final map based on the Tentative Tract Map or other subdivision map approved by the City and the Orange County Surveyor's office to further subdivide the Real Property and recorded in the Official Records. "Developer Releasing Party" shall have the meaning set forth in Section 4.5.3 of the DDA (incorporated as part of Section 6.2 of this Declaration). "Development Agreement" shall mean that certain Agreement (undated), by and between the City and in the Official Records as Instrument No. Tustin Legacy Development Developer, recorded on [{if Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 4 applicable), as amended by that certain {insert new document name and date and recording information if applicable)], and as the same may hereafter be further amended, modified or supplemented in accordance with its terms.2 "Development Parcels" shall mean Lot 11, Lot 12 and Lot 13 of Tract No. 18197 in the City of Tustin, County of Orange, State of California. "Development Permits" shall mean all ministerial permits, certificates and approvals which may be required by the City or any other Governmental Authority for the development and construction of the Improvements for the Market Rate Project and the Affordable Project, respectively, including any engineering permits, grading permits, parking structure permits, construction permits, encroachment permits, building permits or other permits as may be necessary pursuant to Chapter 4 of the Specific Plan and/or the City Code and which shall be obtained and maintained in each case in accordance with the DDA, the Development Agreement, the Entitlements and any required environmental mitigation. "DTSC" shall mean the California Department of Toxic Substances Control. "Due Diligence Information" shall mean any and all information or documentation relating to the Development Parcels furnished to Developer by the City, or its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors or consultants or obtained by Developer prior to the Close of Escrow. "Effective Date" shall mean , 202_, the effective date of the [original] DDA.' "End User" shall mean any (i) utility or Governmental Authority with respect to any transfer of portions of the Real Property or grants of easements affecting the Real Property desirable for the development of the Real Property, including the City or any lighting or landscaping district and (ii) any natural person that is the tenant under a lease for a Residential Unit and inhabits the unit for which it is the tenant. "Entitlements" shall mean the Development Agreement and all discretionary land use approvals and entitlements legally required by the City or any other Governmental Authority as a condition of subdivision of the Real Property or any portion thereof, development of the Real Property and/or construction of the Improvements and shall include those specific Entitlements described in the Development Agreement, but specifically excluding Development Permits. "Environmental Agency" shall mean any federal, State, or regional agency with applicable jurisdiction over the environmental conditions of the Real Property. z NTD: To be filled in. s NTD: To be filled in. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 5 "Environmental Claims" shall have the meaning set forth in Section 10.2 of the DDA (as incorporated in Section 6.8 of this Declaration). "Environmental Laws" shall mean any federal, State, regional or local laws, ordinances, rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory decrees, judgments and orders and common law, including those relating to industrial hygiene, public safety, human health, or protection of the environment, or the reporting, licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage, discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous Materials. Environmental Laws shall include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) ("CERCLA"); the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.) ("RCRA"); the federal Water Pollution Control Act, as amended, (33 U.S.C. Section 1251 et seq.); the Toxic Substances Control Act, as amended (15 U.S.C. Section 2601 et seq.); the Hazardous Substances Account Act (Chapter 6.8 of the California Health and Safety Code Section 25300 et seq.); Chapter 6.5 commencing with Section 25100 (Hazardous Waste Control) and Chapter 6.7 commencing with Section 25280 (Underground Storage of Hazardous Substances) of the California Health and Safety Code; and the California Water Code, Sections 13000 et seq. "Environmental Matters" shall mean (i) the environmental condition of the Development Parcels; (ii) the compliance of the Development Parcels with Environmental Laws; (iii) the existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, or from, the Development Parcels or any current or future improvement thereon or any portion thereof, and/or (iv) Claims of or acts or omission to act of any Governmental Authority or any other third party arising or resulting directly or indirectly from or related to any actual, threatened, or suspected Release of a Hazardous Material on, in, under, from, about, or adjacent to the Development Parcels or any current or future improvement thereon, including any Investigation or Remediation at or about the Development Parcels or any current or future improvement thereon. "Excluded Improvements" shall mean the Landscape Improvements, any and all public streets, if any, and public sidewalks on the Real Property, and the bioswale and rock wall on Lot 13 existing as of the Restrictions Date. "Federal Deed" shall mean that certain Quitclaim Deed D and Environmental Restriction Pursuant to Civil Code Section 1471 dated May 13, 2002, that was recorded in the Official Records on May 14, 2002 as Instrument Number 20020404594. "Federal Government" shall mean the United States of America (including the Navy), by and through the Secretary of the Navy, or designee. "Final Certificate of Compliance" shall mean the Certificate of Compliance executed and recorded by the City in the Official Records against the Real Property for the last of the Market Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 6 Rate Project or the Affordable Project and denominated the Final Certificate of Compliance. "Force Majeure Delay" shall mean any cause whatsoever beyond the reasonable control of a party and which directly, materially and adversely affects the ability of such party to meet its non -monetary obligations under this Declaration, and which events (or the effect of which events) could not have been avoided by due diligence and use of reasonable efforts by such party and shall include without limitation, epidemic, blockade, quarantine, rebellion, war, act of terrorism, insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties, acts of God, freight embargoes, lack of transportation, change in governmental restrictions or requirements, administrative appeals, arbitration or litigation (including litigation challenging any Entitlement or permits), unusually severe weather, inability to secure necessary labor, materials or tools, acts or failure to act of any Governmental Authority, the presence of Hazardous Materials on the Parcel or substantial interruption of work due to other construction by third parties in the immediate vicinity of the Parcel. A cause shall not be deemed beyond the reasonable control of a party when such cause is peculiar to a party (such as a party's financial condition, illiquidity, or insolvency), when arising out of the inaction or delay of a party, or to the extent caused by the negligent or intentional act or omission of a party or any of its agents, contractors or affiliates or the breach by a party of its obligations under this Declaration. Notwithstanding the foregoing, prior to recording in the Official Records by the City of a Certificate of Compliance as to a Parcel, no cause or event shall constitute a "Force Majeure Delay" for purposes of this Declaration as to such Parcel unless such cause or event comprises a "Force Majeure Delay" pursuant to the DDA entitling a party under the DDA to suspend or otherwise delay performance. From and after recording in the Official Records by the City of a Certificate of Compliance as to a Parcel, as to such Parcel, the definition of "Force Majeure Delay" for purposes of this Declaration shall be solely as set forth in this Declaration without regard to the definition of "Force Majeure Delay" as set forth in the DDA. "FOST" shall mean the Department of Navy findings and determinations that the Development Parcels were suitable for transfer to the City, pursuant to the document entitled "Finding of Suitability for Transfer for Southern Parcels 4-8, 10-12, 14, and 42 and Parcels 25, 26, 30-33, 37, and Portions of 40 and 41 dated September 28, 2001. "General Plan" shall mean the most current General Plan of the City of Tustin. "Governmental Authority" and "Governmental Authorities" shall mean, respectively, each and all federal, State, county, municipal and local governmental and quasi -governmental bodies and authorities (including the United States of America, the State of California and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over either or any of the Parties, the Market Rate Project, the Affordable Project, the Development Parcels or over any property owned by the City upon which work is conducted by or on behalf of Developer in connection with construction of the Market Rate Project, the Affordable Project or such portions of the foregoing as the context indicates. "Governmental Capacity and/or Proprietary Capacity" shall mean the exercise by the City of its governmental authority with respect to any matter related to this Declaration which shall Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 7 include the regulation and entitlement of the Development Parcels pursuant to the Entitlements, Development Permits and/or Governmental Requirements, including enacting laws, inspecting structures, reviewing and issuing permits, and all of the other legislative and administrative or enforcement functions of each pursuant to federal, State or local law and/or the proprietary capacity of the City as owner, lessor, assembler, redeveloper and/or seller of property. "Governmental Requirements" shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines, conditions, instructions, and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or otherwise affecting any or all of the Parties, the Market Rate Project, the Affordable Project, the Improvements, the Development Parcels or any component thereof or over any property owned by the City upon which work is conducted by or on behalf of Developer in connection with construction of the Market Rate Project or the Affordable Project, as applicable, and including the California Surplus Land Act and Guidelines as the same may be amended from time to time, Environmental Laws, the City Code, the Specific Plan, the Entitlements, the Development Permits and the Approved Plans. "Governmental Successors" shall mean each and every Person that is a successor or an assignee of the City of Tustin and that is a governmental entity or agency. "Govt. Code" shall mean the California Government Code. "Grading Work" shall mean all of the grading work required to be completed by Developer pursuant to the Approved Plans, which shall include rough and precise grading of the Real Property and the portions of the Boundary Landscape Area (as defined in the Landscape Installation and Maintenance Agreement) owned by the City, including internal drives and access points, which shall be performed on a Parcel -by -Parcel basis unless otherwise agreed by the City. "Ground Lease" shall mean a lease pursuant to which an Owner leases a leasehold interest in one or more Parcels within Lot 13 and the improvements then present or constructed thereon. "Ground Lessee" shall mean each and every Person holding the tenant's interest in a Ground Lease. "Guarantor" shall mean the Person that has executed a form of Guaranty, to which the City is a named beneficiary, pursuant to the terms and conditions of the DDA. "Hazardous Materials" shall mean and include the following: (a) "Hazardous Substance", "Hazardous Material", "Hazardous Waste", or "Toxic Substance" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. subsection 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. subsection 5101, et seq., or the Resource Conservation and Recovery Act, 42 U.S.C. subsection 6901, et seq.; Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 8 (b) An "Extremely Hazardous Waste", a "Hazardous Waste", or a "Restricted Hazardous Waste", under subsections 25115, 25117, or 25122.7 of the California Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the California Health and Safety Code; (c) "Hazardous Material", "Hazardous Substance", "Hazardous Waste", "Toxic Air Contaminant", or "Medical Waste" under subsections 25281, 25316, 25501, 25501.1, 117690 or 39655 of the California Health and Safety Code; (d) "Oil" or a "Hazardous Substance" listed or identified pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any other hydro carbonic substance or by-product; (e) Listed or defined as a "Hazardous Waste", "Extremely Hazardous Waste", or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the California Code of Regulations; (f) Listed by California as a chemical known by California to cause cancer or reproductive toxicity pursuant to Section 25249.8 of the California Health and Safety Code; (g) A material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures damages or threatens to damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or public agency requires in order for the property to be put to any lawful purpose; (h) Any material whose presence would require remediation pursuant to the guidelines set forth in the California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank; (i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. subsection 136 et seq.; 0) Asbestos, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. subsection 2601 et seq.; (k) Any radioactive material including any "source material", "special nuclear material", "by-product material", "low-level wastes", "high-level radioactive waste", "spent nuclear fuel" or "transuranic waste", and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U.S.C. subsection 2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. subsection 10101 et seq., or pursuant to the California Radiation Control Law, California Health and Safety Code Section 114960 et seq.; (1) Regulated under the Occupational Safety and Health Act, 29 U.S.C. subsection 651 et seq., or the California Occupational Safety and Health Act, California Labor Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 9 Code subsection 6300 et seq.; (m) Regulated under the Clean Air Act, 42 U.S.C. subsection 7401 et seq. or pursuant to Division 26 of the California Health and Safety Code; and/o (n) Any substance or compound regarding which a federal or State agency has established a health advisory, including but not limited to, Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) or any associated additives or degradation byproducts thereof. "High Quality Residential Project" shall mean a multi -family development that is of high quality design and construction and very well maintained and managed comparably to The Amalfi in the City. "High Quality Residential Standards" shall mean, in terms of the quality of maintenance, standards consistent with a High -Quality Residential Project. "Improvements" shall mean and all Buildings, structures, improvements, Private Drives and Sidewalks and all other roads, drives, bike paths, alleyways, sidewalks, utilities, courtyards, landscaping, hardscaping and fountains and specifically includes the Common Area Improvements but specifically excludes the Excluded Improvements.. "Initial Developer" shall have the meaning set forth in Recital A. "Investigation(s)" shall mean any observation, inquiry, examination, sampling, monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying of or concerning the Development Parcels, or any other property upon which Developer is required to construct the Improvements, including the air, soil, surface water, and groundwater, and the surrounding population or properties, or any of them, to characterize or evaluate the nature, extent or impact of Hazardous Materials. "Landscape Improvements" shall have the meaning set forth in the Landscape Installation and Maintenance Agreement. "Landscape Installation and Maintenance Agreement" shall mean the agreement of the same name executed by the City and Initial Developer and recorded in the Official Records against the Real Property substantially concurrently with recording of this Declaration in the Official Records. "Lot 11" shall mean the portion of the Real Property identified as Lot 11 on Final Tract Map No. 18197. "Lot 12" shall mean the portion of the Real Property identified as Lot 12 on Final Tract Map No. 18197. "Lot 13" shall mean the portion of the Real Property identified as Lot 13 on Final Tract Map No. 18197. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 2B, 2C and 8 10 "Lot 13 PDA" shall mean the Property Development Agreement between the initial Owner of Lot 13 and USA Properties, Fund, Inc. with respect to the development of the Parcels within Lot 13. "Lot 13 Property" shall mean the Lot 13 Real Property together with all improvements thereon, appurtenances thereto, and interests in permits, licenses, approvals and authorizations, if any, in connection with the Lot 13 Real Property for development of the Affordable Project Improvements and intangible property, if any, included in the property interests leased to Ground Lessee pursuant to a Ground Lease. "Lot 13 Real Property" shall mean the Real Property within the boundaries of the legal lot comprising Lot 13. "Lower Income Households" shall mean persons and families whose income does not exceed the qualifying limits for lower income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937. The limits shall be published by the Department of Housing and Community Development in the California Code of Regulations as soon as possible after adoption by the Secretary of Housing and Urban Development. In the event the federal standards are discontinued, the Department of Housing and Community Development shall, by regulation, establish income limits for lower income households for all geographic areas of the state at eighty percent (80%) of area median income, adjusted for family size and revised annually. "Lower Income Households" includes Very Low Income Households. "Lower Income Units" shall mean Residential Units that are constructed and rented to, occupied by, or held available for Lower Income Households. "Market Rate Project" shall mean the development by Developer of the Improvements on Lot 11 and Lot 12 pursuant to the DDA. "Market Rate Project Improvements" shall mean the Improvements constructed or to be constructed on Lot 11 and/or Lot 12, as applicable. "Material Default" shall mean any Potential Default that is not timely cured in accordance with Section 8.2. "MCAS Tustin" shall have the meaning set forth in Recital A. "Memorandum of Agreement" shall mean that certain Memorandum of Agreement by and between The United States of America (through the Secretary of the Army or designee) and the City dated May 13, 2002. "Mortgage" shall mean any indenture of mortgage or deed of trust, hypothecation, pledge, assignment for security purposes, bond, grant of taxable or tax-exempt funds from a governmental agency or other security interest or any documents constituting or relating to a sale -leaseback transaction, together with all loan documents related thereto, but excluding any community facilities districts, service districts, assessment districts, landscape and lighting districts or other Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 11 assessments created or imposed by any Governmental Authority, and for the avoidance of doubt shall include any Permitted Leasehold Mortgage. "Mortgagee" shall mean any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage or, with respect to any property that is the subject of a sale -leaseback transaction, the Person acquiring fee title, and for the avoidance of doubt shall include any Permitted Leasehold Mortgagee. "Navy" shall mean the United States Department of Navy. "Navy Conveyance Agreement" shall have the meaning set forth in Recital B. "Navy Responsibilities" shall have the meaning set forth in Section 4.5.3 of the DDA (incorporated as part of Section 6.1 of this Declaration). "Non -Environmental Claims" shall mean all Claims brought by third parties that are not Environmental Claims. "Official Records" shall have the meaning set forth in Recital C. "Other Agreements" shall mean the Quitclaim Deed, this Declaration, the Memorandum of DDA, the Development Agreement, the Landscape Installation and Maintenance Agreement, the Affordable Housing Declaration, and the Public Access Covenant. "Owner" shall mean Developer and each Successor Owner holding fee title to all or any Parcel of the Real Property. "Owner Representatives" shall mean as to an Owner, such Owner's officers, directors, employees, agents, representatives, consultants, contractors, and other persons accessing the Landscape Area by, through or with the permission or under the direction or auspices of such Owner. "Parcel" shall mean Lot 11, Lot 12 and Lot 13 individually, or any legal parcel or lot contained therein. "Parcels" shall mean more than one Parcel or all the Parcels, as applicable. "Permitted Exceptions" shall mean those exceptions to title shown in the ALTA policy of title insurance issued to Developer as of the Restrictions Date. "Permitted Leasehold Mortgage" shall mean any indenture of mortgage or deed of trust, bonds, grant of taxable or tax-exempt funds from a governmental agency or other conveyance of a security interest in the leasehold estate created by any Ground Lease on the Lot 13 Real Property to a Permitted Leasehold Mortgagee for the purpose of development and construction of all or a portion of the Affordable Project. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 12 "Permitted Leasehold Mortgagee" shall mean the Mortgagee, and any successor or assign of such Mortgagee having all right, title and interest in and to the loan documents, and in each case meeting the criteria set forth in Section 17.1 through 17.3 of the DDA and accordingly entitled to the Permitted Leasehold Mortgagee protections provided therein. "Person" shall mean an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, governmental agency or other entity, domestic or foreign. "Potential Default" shall mean any default that is by the terms of this Declaration a "Potential Default". "Project" shall have the meaning set forth in Recital E. "Project Fair Share Contribution" shall mean the fair share of the Tustin Legacy Backbone Infrastructure Program required to be paid by Developer to the City at the Close of Escrow. "Property" shall have the meaning set forth in Recital D. "Public Access Covenant" shall mean that certain Public Access Covenant to be executed and delivered by the City and recorded in the Official Records against the Real Property concurrently with recording of this Declaration. "Publicly Accessible Common Area" shall mean those portions of the Real Property depicted as "Publicly Accessible Common Area" on Exhibit C to this Agreementand upon which Developer shall construct or install the Publicly Accessible Common Area Improvements, and to which the public shall be provided access pursuant to the Public Access Covenant. "Publicly Accessible Common Area Improvements" shall mean the improvements constructed or to be constructed on the Publicly Accessible Common Area including landscaping, amenities, and other improvements depicted in the Approved Plans and/or required by the approved Entitlements but specifically excludes the Excluded Improvements. "Quitclaim Deed" shall mean that certain Quitclaim Deed for Portions of Disposition Areas 213, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 dated as of the Restrictions Date, from the City to Developer and recorded in the Official Records following recording in the Official Records of this Declaration. "Real Property" shall have the meaning set forth in Recital D. "Record", "Recording" and "Recorded" shall mean to record the specified instrument, or the current or past recording of the specified instrument, in the office of the Clerk Recorder for Orange County, California. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 13 "Release" (with respect to Hazardous Materials) shall mean any releasing, or threat of releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing, or dumping into the environment. "Remediate" or "Remediation" shall mean any response or remedial action as defined under Section 101(25) of CERCLA, and similar actions with respect to Hazardous Materials as defined under comparable state and local laws, and any other cleanup, removal, containment, abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or other mitigation or remediation of Hazardous Materials or Releases required by any Environmental Agency or within the purview of any Environmental Laws. "Residential Unit" or "Residential Units" shall mean the residential units within each Building developed or to be developed on the Real Property as part of the Project. "Restrictions" shall have the meaning set forth in Section 1. "Restrictions Date" shall have the meaning set forth in the preamble to this Declaration. "Reuse Plan" shall have the meaning set forth in Recital A. "Second Party" shall have the meaning set forth in Section 11.10. "SLA Regulations" shall mean those statutes and guidelines promulgated from time to time imposing requirements upon the City with respect to disposition of real property owned by it, including the requirements of California Govt. Code Section 54220-54234 and the Updated Surplus Land Act Guidelines issued by the California Department of Housing and Community Development on August 1, 2024, as each may be amended from time to time. "Specific Plan" shall mean the MCAS Tustin Specific Plan/Reuse Plan originally adopted by the City on February 3, 2003, as the same may have been previously or may be subsequently amended. "State" shall mean the State of California. "Successor Ground Lessee" shall mean each and every Person that is a successor to or assignee of Affordable Housing Developer with respect to its interest in the Ground Lease, but excluding any End Users; provided that during the term of the DDA as to any Parcel, any such Transfer shall be subject to the applicable limitations set forth in Sections 1.4.3, 4.7 and 13.2.3 and Article 17 of the DDA and the terms of the Lot 13 PDA or the Approved Ground Lease. "Successor Owner" shall mean each and every Person owning or acquiring fee title to all or any portion of the Real Property from and after the conveyance of such Real Property to Developer by the City, but excluding any End Users; provided that during the term of the DDA as to any Parcel, any such Transfer shall be subject to the applicable limitations set forth in Article 2 of the DDA. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 14 "Tentative Tract Map" shall mean vesting tentative tract map No. 19353. "Term" shall have the meaning set forth in Section 4. "Tustin Legacy" shall have the meaning set forth in Recital B. "Tustin Legacy Backbone Infrastructure Program" shall mean the Tustin Legacy Backbone Infrastructure Program in effect as of the Effective Date. Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit B Por. Parcels 213, 2C and 8 15 EXHIBIT C PUBLICLY ACCESSIBLE COMMON AREA (BY LOT OWNER) [see attached] Tustin Irvine Co DDA Att 20 Special Restrictions Attachment 20 City of Tustin/Irvine Company 03.11.25 (HM) FINAL Exhibit C Por. Parcels 213, 2C and 8 ATTACHMENT 20 - SPECIAL RESTRICTIONS EXHIBIT C - PUBLICLY ACCESSIBLE COMMON AREA BY LOT OWNER LEGEND — — — — CURRENT LOT LINE — — — — FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT MAP) PUBLICLY ACCESSIBLE COMMON AREA (FUTURE LOT 1 & FUTURE LOT A) PUBLICLY ACCESSIBLE COMMON AR (FUTURE LOT 2) LOT A FUTURE �1 LOT LINE PASEO P N GOB z CURRENTui LOT 11 0 BUILDING 1 i cn FUTURE rA [FUTURE w LOT 1 I LOT 2 C WIN ma *hh. LOI mwi�il •• TUSTIN RANCH RD. Ao RLECm E N G I N E E R I N G SCALE: ill =80' SHEET 1 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 20 - SPECIAL RESTRICTIONS EXHIBIT C - PUBLICLY ACCESSIBLE COMMON AREA BY LOT OWNER LEGEND w w w w - - - - CURRENT LOT LINE TUSTIN RANCH RD. ,o RLECm E N G I N E E R I N G N� SCALE ill =80' SHEET 2 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 20 - SPECIAL RESTRICTIONS EXHIBIT C - PUBLICLY ACCESSIBLE COMMON AREA BY LOT OWNER SEE SHEET 4 9 T ❑ LOT 4 PEEBLE WAY ❑ -�- ---- -- El 0 El I 1 PASEO I I FUTURE LOT LINE z 1 I Q � I 0 z CURRENT > LOT 12 Q ilBUILDING 3 O i FUTURE LOT 3 M�P2 SEA SN�E� LEGEND - - - - CURRENT LOT LINE - - - - FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT MAP) PUBLICLY ACCESSIBLE COMMON AREA (FUTURE LOT 3) PUBLICLY ACCESSIBLE COMMON AREA (FUTURE LOT 4) fl'�OA�o DE ENGINEERING 3 SCALE: ill =80' SHEET 3 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 20 - SPECIAL RESTRICTIONS EXHIBIT C - PUBLICLY ACCESSIBLE COMMON AREA BY LOT OWNER \ PEEBLE WAY I FC;FNn SEE SHEET 3 - - - - CURRENT LOT LINE - - - - FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT MAP) PUBLICLY ACCESSIBLE COMMON AREA (FUTURE LOT 3) PUBLICLY ACCESSIBLE COMMON AREA (FUTURE LOT 4) ,o RLECm E N G I N E E R I N G I SCALE ill =80' SHEET 4 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 20 - SPECIAL RESTRICTIONS EXHIBIT C - PUBLICLY ACCESSIBLE COMMON AREA BY LOT OWNER WARNER AVENUE EXISTING BIOSWALE & ROCK WALL TO BE MAINTAINED BY CITY OF TUSTIN I t I I BUILDING 6 I FUTURE LOT 6 m z PASEOLu D Q ° ❑ '� � L�_FUTLIE I INE ' O IU CURRENT ' LOT 13 I FUTURE LOT 5 ' BUILDING 5 I ' L I I I LEGEND AIRSHIP AVENUE — - - — CURRENT LOT LINE SEE SHEET 4 — — — — FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT MAP) PUBLICLY ACCESSIBLE COMMON AREA (FUTURE LOT 5) PUBLICLY ACCESSIBLE COMMON AREA (FUTURE LOT 6) ALE: SC fl'�OA�oRLOCm �., _ $o E N G I N E E R I N G SHEET 5 OF 5 T T 0 a N 0 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 21 LANDSCAPE INSTALLATION AND MAINTENANCE AGREEMENT CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383. Recording requested by and When recorded mail to: The City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Citv Manaeer SPACE ABOVE THIS LINE FOR RECORDER'S USE LANDSCAPE INSTALLATION AND MAINTENANCE AGREEMENT This LANDSCAPE INSTALLATION AND MAINTENANCE AGREEMENT ("Agreement") is entered into this day of , 20 ("Effective Date") by and between the CITY OF TUSTIN, a municipal corporation of the State of California (as further defined below, "City") and TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company (as further defined below, "Developer"). RECITALS A. The City and Developer have entered into (1) that certain Tustin Legacy Disposition and Development Agreement for Portions of Disposition Areas 2B, 2C and 8, dated as of , 2025 ("DDA"), a memorandum of which has been recorded against the Real Property (defined below) in the office of the Orange County Clerk Recorder ("Official Records") on , 20_ as Instrument No. and (2) that certain Tustin Legacy Development Agreement recorded in the Official Records on , 2025 as Instrument No. ("Development Agreement"). The Development Agreement imposes certain obligations upon Developer, including, without limitation, the obligation to construct certain Public Benefit Improvements (as defined therein). B. Concurrently with the execution of this Agreement, pursuant to that certain Quitclaim Deed for Portions of Disposition Areas 213, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 made by the City in favor of Developer of even date herewith and recorded in the Official Records concurrently with recording of this Agreement ("Quitclaim Deed"), the City has conveyed to Developer that certain real property legally described and depicted on Exhibit A ("Real Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 1 Por. Disp. Areas 213, 2C and 8 Property"), upon which Developer intends to develop a multi -family residential community homes and related improvements and amenities ("Project"). C. Immediately prior to the conveyance of the Real Property to Developer by the City, the City has executed and caused to be recorded in the Official Records (1) that certain Declaration of Special Restrictions for Portions of Disposition Areas 213, 2C and 8 ("Special Restrictions"). D. Prior to the Effective Date, the City Council of the City has approved tentative tract map No. 19353 ("Tentative Tract Map"). E. The City is the owner of certain land located adjacent to and surrounding the Real Property comprising a portion of the Boundary Landscape Area (defined below) as depicted in Exhibit B ("City Property"). F. The City has approved certain Entitlements (defined below) with respect to the Real Property, including, without limitation, the Tentative Tract Map and Design Review application 2024-0013, adopted by the City of Tustin City Council in Resolution No. on The conditions of approval with respect to the Entitlements (collectively, "Conditions") and the terms of the DDA and the Development Agreement require that Developer install the Landscape Improvements within the Boundary Landscape Area (each as defined below) and maintain the Landscape Improvements as described in this Agreement. G. Developer has agreed to execute this Agreement to provide for installation of the Landscape Improvements and the maintenance by Developer and its Successor Owners, and if applicable, Ground Lessees, of the Boundary Landscape Area and the Landscape Improvements. This Agreement shall be a covenant running with the land and burdening the Real Property for the benefit of the portions of the City Property and the City and its successors and assigns. NOW, THEREFORE, in consideration of the benefits conferred, the mutual covenants and conditions contained herein, and the duties and obligations incurred, the parties hereto agree as follows: AGREEMENT 1. Definitions. For purposes of this Agreement, the following capitalized terms shall have the following meanings: "Accrue", "Accrued" or "Accruing" shall mean with respect to any Claim, the date and time such Claim arises as a matter of law and could then or thereafter be asserted by any Person. "Affiliate" shall mean with respect to any Owner of Ground Lessee, any entity that directly or indirectly Controls, is Controlled by or is under common Control with that Owner or Ground Lessee, respectively. "Agreement" shall have the meaning set forth in the preamble to this Agreement. "Approved Plans" shall, during the term of the DDA, have the meaning set forth in the DDA and upon termination of the DDA as to each Parcel shall mean, as to such Parcel, Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 2 Por. Disp. Areas 213, 2C and 8 construction level drawings consistent with the Entitlement Approvals and approved by the City or responsible agency as required to obtain any required Development Permits. "Boundary Landscape Area" shall mean that portion of the City Property and that portion of the Real Property, in each case generally between the back of curb on each public street adjoining the Real Property and the buildings on the Real Property, as more particularly depicted on Exhibit C. "Business Day(s)" shall mean any day other than Saturday, Sunday and each City observed legal holiday. "City" shall have the meaning set forth in the preamble to this Agreement and where used in this Agreement shall include the successors and assigns of the City. "City Improvement Areas" shall have the meaning set forth in Section 7.2. "City Improvements" shall mean the standard and/or meandering perimeter public street sidewalks on the Boundary Landscape Area and the existing bioswale and rock wall located on Lot 13. "City Indemnified Parties" shall mean the City and its appointed and elected officials, agents, attorneys, affiliates, employees, consultants, contractors and representatives. "City Property" shall have the meaning set forth in Recital E. "Claims" shall have the meaning set forth in Section 9. "Conditions" shall have the meaning set forth in Recital F. "Control" "Controlled" or "Controlling", as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current ability to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests, acting as the manager of a limited liability company, the administrative general partner of a partnership or otherwise. Notwithstanding the foregoing, the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute "Control" if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person. "Controlling Person" shall mean (i) any Person who Controls Developer during the Term and (ii) any Person who Controls a Controlling Person. Notwithstanding the foregoing, if a Person has the right to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of Developer, such Person shall not be deemed to be a Controlling Person unless such Person also possesses, directly or indirectly (including through one Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 3 Por. Disp. Areas 213, 2C and 8 or more intermediaries), the power to direct or cause the direction of the management and policies of Developer. "DDA" shall have the meaning set forth in Recital A. "Default Interest Rate" shall mean an interest rate of eight percent (8%) per annum, compounded annually, but in no event in excess of the maximum legal rate. "Developer" shall mean (i) prior to recording in the Official Records by the City of a Certificate of Compliance for a Parcel, each Person that is the Developer under the DDA and (ii) following recording in the Official Records by the City of a Certificate of Compliance for a Parcel, the Owner of the applicable Parcel. "Developer Final Tract Map" shall mean a final map based on the Tentative Tract Map or other subdivision map approved by the City and the Orange County Surveyor's office to further subdivide the Real Property and recorded in the Official Records. "Development Agreement" shall have the meaning set forth in Recital A. "Development Permits" shall mean all ministerial permits, certificates and approvals which may be required by the City or any other governmental entity for the development and construction of the Landscape Improvements. "Effective Date" shall have the meaning set forth in the preamble to this Agreement. "End User" shall mean any (i) utility or Governmental Authority with respect to any transfer of portions of the Real Property or grants of easements affecting the Real Property desirable for the development of the Real Property, including, without limitation, the City or any lighting or landscaping district and (ii) any natural person that is the tenant under a lease for a residential unit on the Real Property and inhabits the unit for which it is the tenant. "Entitlements" shall mean all discretionary land use approvals and entitlements legally required by the City or any other governmental entity as a condition of subdivision of the Real Property, development of the Project and construction of the Landscape Improvements and all conditions thereto, including, without limitation, the Conditions, but excluding Development Permits. "Environmental Laws" shall mean any federal, State, regional or local laws, ordinances, rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory decrees, judgments and orders and common law, including, without limitation, those relating to industrial hygiene, public safety, human health, or protection of the environment, or the reporting, licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage, discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous Materials. Environmental Laws shall include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) ("CERCLA"); the Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 4 Por. Disp. Areas 213, 2C and 8 Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.) ("RCRA"); the federal Water Pollution Control Act, as amended, (33 U.S.C. Section 1251 et seq.); the Toxic Substances Control Act, as amended (15 U.S.C. Section 2601 et seq.); the Hazardous Substances Account Act (Chapter 6.8 of the California Health and Safety Code Section 25300 et seq.); Chapter 6.5 commencing with Section 25100 (Hazardous Waste Control) and Chapter 6.7 commencing with Section 25280 (Underground Storage of Hazardous Substances) of the California Health and Safety Code; and the California Water Code, Sections 13000 et seq. "Governmental Authority" shall mean each and all federal, State, county, municipal and local governmental and quasi -governmental bodies and authorities (including, without limitation, the United States of America, the State and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over either or any of City, Developer or any Owner or Ground Lessee, the Project, the Real Property or over any property, including, without limitation, the City Property, owned by the City upon which work is conducted by or on behalf of Developer in connection with construction or maintenance of the Landscape Improvements on the Boundary Landscape Area. "Ground Lease" shall mean a lease pursuant to which an Owner leases a leasehold interest in one or more Parcels within Lot 13 and the improvements then present or constructed thereon. "Ground Lessee" shall mean each and every Person holding the tenant's interest in a Ground Lease. "Hazardous Materials" shall mean and include the following: (a) "Hazardous Substance", "Hazardous Material", "Hazardous Waste", or "Toxic Substance" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. subsection 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. subsection 5101, et seq., or the Resource Conservation and Recovery Act, 42 U.S.C. subsection 6901, et seq.; (b) An "Extremely Hazardous Waste", a "Hazardous Waste", or a "Restricted Hazardous Waste", under subsections 25115, 25117, or 25122.7 of the California Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the California Health and Safety Code; (c) "Hazardous Material", "Hazardous Substance", "Hazardous Waste", "Toxic Air Contaminant", or "Medical Waste" under subsections 25281, 25316, 25501, 25501.1, 117690 or 39655 of the California Health and Safety Code; (d) "Oil" or a "Hazardous Substance" listed or identified pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any other hydro carbonic substance or by-product; Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 5 Por. Disp. Areas 213, 2C and 8 (e) Listed or defined as a "Hazardous Waste", "Extremely Hazardous Waste", or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the California Code of Regulations; (f) Listed by California as a chemical known by California to cause cancer or reproductive toxicity pursuant to Section 25249.8 of the California Health and Safety Code; (g) A material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures damages or threatens to damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or public agency requires in order for the property to be put to any lawful purpose; (h) Any material whose presence would require remediation pursuant to the guidelines set forth in the California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank; (i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. subsection 136 et seq.; 0) Asbestos, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. subsection 2601 et seq.; (k) Any radioactive material including any "source material", "special nuclear material", "by-product material", "low-level wastes", "high-level radioactive waste", "spent nuclear fuel" or "transuranic waste", and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U.S.C. subsection 2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. subsection 10101 et seq., or pursuant to the California Radiation Control Law, California Health and Safety Code Section 114960 et seq.; (1) Regulated under the Occupational Safety and Health Act, 29 U.S.C. subsection 651 et seq., or the California Occupational Safety and Health Act, California Labor Code subsection 6300 et seq.; (m) Regulated under the Clean Air Act, 42 U.S.C. subsection 7401 et seq. or pursuant to Division 26 of the California Health and Safety Code; and/o (n) Any substance or compound regarding which a federal or State agency has established a health advisory, including but not limited to, Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) or any associated additives or degradation byproducts thereof. "High Quality Residential Project" shall mean a multi -family residential project that is of high quality design and construction and very well maintained and managed comparably to The Amalfi in the City. "High Quality Residential Standards" shall mean, in terms of the quality of maintenance, standards consistent with a High Quality Residential Project. Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 6 Por. Disp. Areas 213, 2C and 8 "Landscape Improvements" shall mean any and all landscaping, irrigation, lighting (other than City street lighting) and related utilities, street furniture, structures, and/or hardscape improvements required by the Approved Plans, the Entitlements, the Development Permits, the Development Agreement and/or the DDA to be constructed in connection with the Project upon the Boundary Landscape Area and shall be comprised of the landscaping within the Boundary Landscape Area installed by Developer, Successor Owner and/or Ground Lessee. For avoidance of doubt, the Landscape Improvements do not include the City Improvements or any driveways or drive aisles. "Laws" shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines, conditions, instructions and other requirements issued by any all federal, State, county, municipal and local governmental and quasi -governmental bodies and authorities and including, without limitation, the City Code, the Specific Plan, the Entitlements and the Development Permits and Environmental Laws. "Lot 11" shall mean the portion of the Real Property identified as Lot 11 on Final Tract Map No. 18197. "Lot 12" shall mean the portion of the Real Property identified as Lot 12 on Final Tract Map No. 18197. "Lot 13" shall mean the portion of the Real Property identified as Lot 13 on Final Tract Map No. 18197. "Lot 13 PDA" shall mean the Property Development Agreement between the initial Owner of Lot 13 and USA Properties, Fund, Inc. with respect to the development of Lot 13. "Mortgage" shall mean any indenture of mortgage or deed of trust, hypothecation, pledge, assignment for security purposes, bond, grant of taxable or tax-exempt funds from a governmental agency or other security interest or any documents constituting or relating to a sale -leaseback transaction, together with all loan documents related thereto, but excluding any community facilities districts, service districts, assessment districts, landscape and lighting districts or other assessments created or imposed by any Governmental Authority, and for the avoidance of doubt shall include a Permitted Leasehold Mortgage. "Mortgagee" shall mean any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage or, with respect to any property that is the subject of a sale -leaseback transaction, the Person acquiring fee title, and for the avoidance of doubt shall include a Permitted Leasehold Mortgagee. "Official Records" shall have the meaning set forth in Recital A. "Owner" shall mean Developer and each Successor Owner holding fee title to all or any Parcel of the Real Property. "Owner Representatives" shall mean as to an Owner, such Owner's officers, directors, employees, agents, representatives, consultants, contractors, and other persons accessing the Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 7 Por. Disp. Areas 213, 2C and 8 Boundary Landscape Area by, through or with the permission or under the direction or auspices of such Owner. "Parcel" shall mean Lot 11, Lot 12 and Lot 13 individually, or any legal parcel or lot contained therein. "Parcels" shall mean more than one Parcel or all the Parcels, as applicable. "Person" shall mean an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, governmental agency or other entity, domestic or foreign. "Project" shall have the meaning set forth in Recital B. "Quitclaim Deed" shall have the meaning set forth in Recital B. "Real Property" shall have the meaning set forth in Recital B. "Representatives" shall mean the officers, directors, employees, agents, representatives, consultants, contractors, and other Persons accessing the Real Property by, through or with the permission or under the direction or auspices of the City or its successor and assigns. "State" shall mean the State of California. "Special Restrictions" shall have the meaning set forth in Recital C. "Successor Ground Lessee" shall mean each and every Person that is a successor to or assignee of Ground Lessee with respect to its interest in the Ground Lease, but excluding each and every End User, provided that during the term of the DDA as to any Parcel, any such Transfer shall be subject to the applicable limitations set forth in Sections 1.4.3, 4.7 and 13.2.3 and Article 17 of the DDA and the terms of the Lot 13 PDA or the Approved Ground Lease. "Successor Owner" shall mean each and every Person owning or acquiring fee title to all or any portion of the Real Property from and after the conveyance of such Real Property to Developer by the City, but excluding each and every End User, provided that during the term of the DDA as to any Parcel, any such Transfer shall be subject to the applicable limitations set forth in Article 2 of the DDA. "Tentative Tract Map" shall have the meaning set forth in Recital D. 2. Installation Obligations. Within the time periods established in the DDA, and in accordance with the Approved Plans and all Laws, Developer shall (or shall cause the applicable Ground Lessee to) design and install the initial Landscape Improvements within the Boundary Landscape Area and shall (or shall cause the applicable Ground Lessee to) install sidewalks within the public right of way adjacent to all public streets abutting the Real Property, including the east Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 8 Por. Disp. Areas 213, 2C and 8 side of Compass Avenue, both sides of Swaim Way and Airship Drive, and a portion of Tustin Ranch Road, all as shown on the Approved Plans. 3. Landscape Improvements Maintenance and Replacement Obligations. Each Owner shall maintain, repair, replace and restore, at its sole cost and expense, the Landscape Improvements and the Boundary Landscape Area, including, without limitation, all street furniture, structures, and hardscape (but for avoidance of doubt, excluding the City Improvements) in accordance with the requirements of this Agreement, excepting only reasonable wear and tear and any necessary replacement of Landscape Improvements pursuant to this Agreement. Any necessary replacements of Landscape Improvements shall be consistent with the Approved Plans and all Laws and shall in addition be subject to any applicable City review and approvals to the extent City Code requires a Development Permit in connection with such replacements. The Boundary Landscape Area and Landscape Improvements installed from time to time shall be installed, maintained repaired, replaced and restored in accordance with High Quality Residential Standards and the requirements of this Agreement. All utilities required to maintain, repair, replace and/or restore the Landscape Improvements including, without limitation, water and electrical, shall be paid for by the Owner of the Parcel where such Landscape Improvements are located. 4. Standard of Maintenance. The standard for the quality of maintenance of the Boundary Landscape Area and Landscape Improvements shall be met whether or not a specific item of maintenance is listed below. However, representative items of maintenance shall include, without limitation: (i) proper maintenance such that such areas and improvements are reasonably free of bare and brown spots, debris, trash, litter, droppings and weeds; (ii) maintenance, repair and replacement on a regular schedule, of landscaping, hardscaping, fencing, irrigation systems and utilities pertaining to the Landscape Improvements; (iii) regular inspection for graffiti or damage or deterioration or failure, and reasonably prompt repair or replacement of all surfaces, fencing, walls, lighted bollards, decorative pavement, equipment, etc., as necessary; (iv) fertilizing, irrigating and replacing vegetation, as necessary; (v) use and replacement of vegetation of a type and amount as may reasonably be required to maintain the Boundary Landscape Area in accordance with the Conditions and the Tustin Legacy Specific Plan and consistent with High Quality Residential Standards; (vi) adequate maintenance of all Boundary Landscape Area and Landscape Improvements such as not to be detrimental to public health, safety, or general welfare; and (vii) regular trimming and pruning of all trees and shrubs so they do not impede vehicular or pedestrian traffic and do not intrude into neighboring properties including, Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 9 Por. Disp. Areas 213, 2C and 8 without limitation, root pruning to eliminate exposed surface roots and damage to curbs and gutters, sidewalks, driveways, utilities and other structures or improvements. 5. Allocation of Maintenance Responsibilities. Maintenance responsibilities shall be vested in the Owner of the Parcel that contains the applicable portion of the Boundary Landscape Area as depicted on Exhibit C. 6. Term. The term of this Agreement with respect to each Parcel shall expire on the later of (a) the term of the Special Restrictions with respect to the applicable Parcel, or (b) for so long as the Owner is operating an apartment building on such Parcel, unless termination is consented to by the City, in writing and in its sole discretion. The easements set forth in Section 7.2 remain in effect in perpetuity. 7. Easements and Licenses. 7.1. License in Favor of Owner. The City hereby grants (a) to Developer a license authorizing access by Developer, the applicable Ground Lessee (if any), and its Owner Representatives to the City Property for purposes of installation (subject to the requirements of the encroachment permit issued by the City for installation work) of the Landscape Improvements and the public sidewalks on the Landscape Property in accordance with Section 2 and to the public right of way as reasonably required to construct public sidewalks as described in this Agreement, in each case until completion of such installations and (b) to each Owner, a license authorizing access by Owner and its Owner Representatives to the portions of the City Property adjacent to such Owner's Parcel(s) for maintenance, repair and replacement of landscape and hardscape, including, without limitation, the Landscape Improvements, in accordance with Section 3 of this Agreement, including, without limitation, for installation of replacement landscaping (subject to the requirements of the encroachment permit issued by the City for installation work). The licenses granted in this Section are in public right of way and may be suspended or revoked by the City in their entirety or in part at any time, at the will of the City, upon provision of thirty (30) calendar days written notice by the City to the applicable Owner, provided that if the City suspends or revokes the license for maintenance, repair and replacement of Landscape Improvements, the applicable Owner shall be relieved, for the period of suspension or permanently in the event of revocation, of the obligation to maintain, repair and replace Landscape Improvements within the portion of the City Property for which the license is suspended or revoked. At the termination date of any license granted in this Section, the applicable Owner shall unless otherwise requested by the City: (i) surrender the portion of the Boundary Landscape Area for which the license(s) is terminated to the City in good order and repair except for ordinary wear and tear or damage by casualty, and (ii) vacate and surrender the Boundary Landscape Area or portion thereof for which the license(s) is terminated to the City in lien free condition as further described in Section 10. Notwithstanding the termination of any license granted in this Section, the applicable Owner and Ground Lessee, if applicable, shall remain responsible to fulfill all outstanding obligations of such Owner and/or Ground Lessee under the Agreement with respect to the Landscape Improvements and Boundary Landscape Area Accruing during the term of the license granted hereby. 7.2. Easement in Favor of City for Access to and Maintenance of Sidewalks. Developer hereby grants to the City and its successors and assigns a perpetual and non-exclusive easement for access to and maintenance, repair and replacement of the City Improvements in, Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 10 Por. Disp. Areas 213, 2C and 8 upon, over, across, under and through the portions of the Boundary Landscape Area comprising a portion of the Real Property as reasonably necessary to access the City Improvements (the "City Improvement Areas"). 8. Insurance. 8.1. Each Owner, at its cost, shall maintain commercial general liability insurance with not less than Five Million Dollars ($5,000,000) per occurrence; and automobile liability limits of not less than Five Million Dollars ($5,000,000) insuring against all liability of such Owner and its Owner Representatives arising out of or in connection with: (a) the license granted to such Owner in Section 7.1; (b) such Owner's or Ground Lessee's installation, maintenance, repair or replacement of, or such Owner's or Ground Lessee's failure to maintain, repair or replace, the Landscape Improvements in accordance with the requirements of Sections 3 through 6; and (c) such Owner's or Ground Lessee's installation of the public sidewalks in the Boundary Landscape Area in accordance with the requirements of Section 3 through 6. Such insurance may be provided in part by an umbrella or excess insurance policy meeting the requirements of this Section. In addition, each Owner shall cause the applicable Owner's Representatives to provide workers' compensation insurance meeting statutory limits for all persons employed by such Owner's Representative in connection with performing any of the work on the City Property in connection with the license granted to Owner in Section 7.1. The foregoing may be satisfied during the term of the DDA by insurance required thereby but shall not subtract from any insurance obligations of such Owner to the City under the DDA. Each Owner shall furnish to the City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance as may be reasonably required by City from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A-NII" (if an admitted carrier) or "A-/X" (if offered by a surplus line broker). If not previously delivered, an ACORD certificate evidencing the foregoing and providing the following endorsements signed by the authorized representative of the underwriter (or copies of the applicable pages from the policy if the applicable endorsement coverage is part of the policy rather than provided by separate endorsement) and reasonably approved by City shall be delivered within ten (10) calendar days following the Effective Date and annually evidencing renewals of each policy and endorsement. The endorsements shall provide as follows: (i) designate "the City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective elected and appointed officials, agents, representatives and employees" as additional insureds on the commercial general liability policies; (ii) the commercial general liability insurance coverage shall be primary, and not contribute with any insurance or self-insurance maintained by City; and (iii) for each policy, a waiver of subrogation for the benefit of the City and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective elected and appointed officials, agents, representatives and employees. "Blanket" endorsements (or coverage within the policy itself) providing the same protection as required by written contract shall be acceptable to the City. Each Owner shall also cause evidence of workers' compensation insurance meeting statutory limits to be provided to City covering all persons employed by such Owner (if Owner's employees are performing any work on City Property in connection with the license granted to Owner in Section 7.1) and its Owner Representatives that are performing any of the work on City Property in connection with the license granted to Owner in Section 7.1, and for each such policy, Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 11 Por. Disp. Areas 213, 2C and 8 a waiver of subrogation for the benefit of the City and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective elected and appointed officials, agents, representatives and employees. All such insurance will be on an "occurrence," not a "claims made" and will be prepaid on an annual basis. The procuring of such insurance and the delivery of policies, certificates or endorsements evidencing the same shall not be construed as a limitation on the obligation of each Owner to indemnify City as set forth herein. Notwithstanding the foregoing, while these insurance requirements are able to be satisfied as of the Effective Date, if any of the foregoing requirements are not commercially available at the time required to be obtained or maintained during the term of this Agreement, the applicable Owner and the City shall promptly meet and confer in good faith to seek to resolve such issue and to facilitate the securing such Owner mutually acceptable insurance meeting, as closely as commercially available, the foregoing requirements. 8.2. If, after meeting and conferring in good faith, the Owner and City are unable to resolve the issue and the Owner fails to procure or to cause timely procurement and maintenance of insurance as required by this Agreement, the City shall have the right, at the City's election, and upon ten (10) calendar days' prior written notice to the applicable Owner(s), to procure and maintain such insurance. The premiums paid by the City shall be treated as a loan by the City, due from the applicable Owner(s), to be paid on the first calendar day of the month following the date on which the premiums were paid and such cost, until paid, shall constitute a City Lien on the Real Property of the applicable Owner(s) and with the rights of the City with respect to such City Lien as described in Section 12. The City shall give prompt notice of the payment of such premiums, stating the amounts paid and the name of the insured(s). 9. Indemnity. 9.1. Owner Indemnity on City Property. Each Owner hereby agrees to protect, indemnify, defend and hold harmless the City Indemnified Parties from and against any and all loss, cost, expense, injury, claim, action, cause of action, suit, proceeding, damage, liability, deficiency, fine, penalty, or punitive damage (including, without limitation, reasonable attorneys' fees and court costs), and liability (collectively, "Claims") arising out of or in connection with (i) such Owner's activities within or work on the Boundary Landscape Area in connection with this Agreement; (ii) any willful misconduct or negligence of such Owner and/or its Owner Representatives with respect to the Boundary Landscape Area; and/or (iii) bodily injury to or death of any person (including, without limitation, any employee or contractor of the City Indemnified Parties) or damage to or loss of use of property resulting from such acts or omissions of such Owner or any such Owner's Representative with respect to the Boundary Landscape Area; provided that the foregoing indemnity shall not apply to the extent of the active negligence or willful misconduct of any City Indemnified Party. The provisions of this Section shall survive the termination of the licenses granted herein and this Agreement. 9.2. City Indemnity on City Improvement Areas. City hereby agrees to protect, indemnify, defend and hold harmless the applicable Owner and Owner Representatives from and against any and all Claims arising out of or in connection with (i) City's work on the City Improvements in the City Improvement Areas in connection with the easements granted pursuant to Section 7.2 above; (ii) any willful misconduct or negligence of any City Indemnified Party with Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 12 Por. Disp. Areas 213, 2C and 8 respect to the City's work on the City Improvements in the City Improvement Areas; and/or (iii) bodily injury to or death of any person (including, without limitation, any employee or contractor of such Owner or any Owner Representatives) or damage to or loss of use of property resulting from such acts or omissions of any City Indemnified Party with respect to the City's work on the City Improvements in the City Improvement Areas; provided that the foregoing indemnity shall not apply to the extent of the active negligence or willful misconduct of any Owner or Owner Representative. The provisions of this Section shall survive the termination of this Agreement. 10. Liens. As between Owner and City, each Owner shall bear all costs related to the installation, maintenance, repair and replacement of the Landscape Improvements on the Boundary Landscape Area, notwithstanding any delegation by Owner to Ground Lessee of any such obligations. Each Owner shall keep the Boundary Landscape Area and other real property owned by the City free and clear of any mechanics' liens or materialmen's liens in connection with such work, and no Owner nor any Owner Representatives shall place, allow to be placed on, or incur any such liens against such property or any portion thereof in connection with the Landscape Improvements or in any way attributable to the acts of such Owner and/or its Owner Representatives thereon. Each Owner agrees to indemnify, defend, and hold the City Indemnified Parties free and harmless from and against any and all Claims arising with respect to payment of liens assessed or levied against the Boundary Landscape Area in connection with work performed, improvements constructed, materials furnished, or any other activities of such Owner or its Owner Representatives in connection with this Agreement which, pursuant to the laws of California, may become a lien upon or be the subject of a stop notice with respect to the Boundary Landscape Area. Should any lien be filed against the foregoing property in connection with the work of such Owner as described by this Agreement, such Owner shall promptly bond around the lien as part of disputing the lien with the Person asserting the lien. The City may post notices of non - responsibility on the City Property prior to Owner's commencement of any work under this Agreement. 11. Compliance with Laws. 11.1. By Owner. Each Owner shall comply with all Laws in connection with its activities under this Agreement including, without limitation, those issued by the Santa Ana Regional Water Quality Control Board, Environmental Protection Agency, or any federal, State, interstate, or local governmental agency having jurisdiction to abate or prevent pollution. Each Owner covenants that it will not generate, use, or store Hazardous Materials on the City Property in violation of Environmental Laws. The disposal of any Hazardous Materials within the City Property is specifically prohibited. No Owner shall discharge waste or effluent from the Boundary Landscape Area in such a manner that the discharge will contaminate streams or other bodies of water or otherwise become a public nuisance. The foregoing shall not subtract from any environmental responsibilities of Developer to the City under the DDA or any other agreement. Each Owner shall investigate the applicability of and, if and to the extent required by applicable Laws, pay prevailing wages meeting the requirements of such laws and regulations for all of its or its Owner Representatives' work within the Boundary Landscape Area. Each Owner shall defend, indemnify and hold harmless the City of Tustin from and against all Claims which the City of Tustin may incur by reason of such Owner's action or non -action in violation of its obligations under this Section; provided however, that the foregoing indemnity shall not apply to the extent a Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 13 Por. Disp. Areas 213, 2C and 8 Claim relates to or arises from the active negligence or willful misconduct of a City Indemnified Party. The provisions of this Section shall survive the expiration or termination of the licenses granted herein and this Agreement. 11.2. By City. City shall comply with all Laws in connection with its activities related to the City Improvements under this Agreement including, without limitation, those issued by the Santa Ana Regional Water Quality Control Board, Environmental Protection Agency, or any federal, State, interstate, or local governmental agency having jurisdiction to abate or prevent pollution. City covenants that it will not generate, use, or store Hazardous Materials on the City Improvement Areas in violation of Environmental Laws. The disposal of any Hazardous Materials within the City Improvement Areas is specifically prohibited. City shall defend, indemnify and hold harmless each Owner and its Owner Representatives from and against all Claims which such Owner or its Owner Representative may incur by reason of City's action or non -action in violation of its obligations under this Section; provided however, that the foregoing indemnity shall not apply to the extent a Claim relates to or arises from the active negligence or willful misconduct of an Owner or its Owner Representative. The provisions of this Section shall survive the expiration or termination of this Agreement. 12. City Remedies. 12.1. In the event of a breach of any provision of this Agreement by any Owner, including, without limitation, failure of any Owner to pay to the City all costs or expenses incurred by the City pursuant to this Agreement and charged by the City to such Owner, the City may demand by written notice ("Default Notice") that the violation be cured. With respect to emergencies, including, without limitation, utility service interruptions or similar emergencies, which shall not require advance notice or cure periods hereunder, or with respect to any other breach of this Agreement if the same is not cured by the applicable Owner within (a) thirty (30) calendar days after receipt of the Default Notice, or (b) if such cure cannot be reasonably accomplished within such thirty (30) calendar day period, within one hundred twenty (120) calendar days after receiving the Default Notice from the City (or if a Ground Lease is then in effect, within one hundred fifty (150) calendar days as to the Lot 13 Property only), but only if such Owner has commenced such cure within such thirty (30) calendar day period and diligently pursues such cure to completion, or (c) within such longer period as may be approved by the City in advance in its sole discretion, then in each case the City shall have the right, but not the obligation, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such default including, without limitation, (i) to institute legal action against such Owner for specific performance, injunction, declaratory relief, damages, or any other remedy provided by law, (ii) to enter, or permit its designees to enter upon the Real Property and the Boundary Landscape Area, after two (2) Business Days' prior written notice (or lesser time in the event of an emergency), and to summarily remove any structure or object or to abate any condition that may exist in violation of this Agreement, (iii) to procure and maintain insurance and hold Owner responsible for the costs thereof as described in Section 8.2, and/or (iv) to prosecute any remedy allowed by law or equity for the foregoing against any person or entity acting or failing to act in violation of this Agreement, all at the sole cost of the applicable Owner in an amount equal to all out-of-pocket costs and expenses incurred by City in undertaking any of the actions described in this Section 12, together Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 14 Por. Disp. Areas 213, 2C and 8 with interest thereon as described in Section 12.2, and the foregoing shall constitute a City Lien on the Real Property with the rights of the City with respect to such City Lien to be as described in Sections 12.2 and 12.3. 12.2. Any amounts due to City under this Agreement shall bear interest at the Default Interest Rate from the date the City provides the applicable Owner with an invoice detailing such costs until the date paid. Charges and fees collectible by the City and included in said invoice may include, without limitation, the delinquent amount of any payments due under this Agreement, together with any late charges or interest due on any such delinquent payment, reasonable attorneys' fees, experts' fees and consultants' fees and collection costs and collection costs related to such or previous delinquent payment(s) and all fines and/or penalties incurred by or charged by the City, and the foregoing shall, to the greatest extent permitted by applicable law, be a continuing lien and charge upon the applicable Parcels in favor of the City ("City Lien"); and such City Lien shall apply to all Parcels for which no Certificate of Compliance has been recorded in the Official Records by the City, provided that following recording in the Official Records by the City of a Certificate of Compliance for a Parcel, the City Lien shall apply to the Parcel for which such Certificate of Compliance has been recorded in the Official Records only if the default arises from or is related to such Parcel or if the City Lien is as a result of a default by the Owner thereof. 12.3. Subject to Section 13, all City Liens levied in accordance with this Agreements shall be paramount to the lien and charge of any Mortgage upon fee title to such Parcel and all other liens, except all taxes, bonds, assessments and other levies which, by law, would be superior thereto. The City Lien on a Parcel may be enforced by foreclosure and sale of the Parcel after failure by the Owner thereof to timely pay any special assessment as provided in this Agreement. The sale shall be conducted in accordance with the provisions of the California Civil Code applicable to the exercise of powers of sale in Mortgages, or in any manner permitted by law. 12.4. Nothing in this Agreement shall restrict the City's rights to enter and utilize its reserved rights pursuant to the DDA or the Special Restrictions. 12.5. The rights and remedies given to the City by this Agreement shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or of any other right or remedy at law or in equity which City might otherwise have by virtue of a default under this Agreement, and the exercise of one such right or remedy by any City shall not impair the City's standing to exercise any other right or remedy. 12.6. Any claim for damages under this Agreement shall be limited to direct (actual) damages, and (ii) City and each Owner hereby expressly waives, releases and relinquishes any and all right to any consequential, exemplary or punitive damages. 13. Rights of Ground Lessees, Mortgagees and Mortgagee Protection. No breach or violation of this Agreement, nor any foreclosure of any City Lien, shall permit the City to terminate any Ground Lease, nor defeat or render invalid any Ground Lessee's interest in any portion of the Lot 13 Property unless the City or its designee shall first have acquired fee title to the land then subject to a Ground Lease and shall have terminated the Ground Lease pursuant to its terms. No Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 15 Por. Disp. Areas 213, 2C and 8 breach or violation of this Agreement, nor any City Lien, shall defeat or render invalid the lien of, prior to recording in the Official Records by the City of a Certificate of Compliance for a Parcel, any Permitted Leasehold Mortgage for such Parcel, and thereafter as to such Parcel, any Mortgage securing a loan made in good faith and for value, provided, however, that this Agreement and all provisions hereof shall be binding upon and effective against each Successor Owner, each Ground Lessee, each Successor Ground Lessee, and each other occupant of the Parcel or portion thereof whose title is acquired by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise, but (a) such Successor Owner or Successor Ground Lessee, as applicable, shall have a reasonable time, after acquiring title, to cure any violations or correct and change any facts giving rise to the City's rights under this Agreement occurring prior to such transfer of title or occupancy and which are reasonably capable of being cured or changed (i.e., within the time periods set forth in Section 12.1 commencing as of the date of such acquisition of title thereto), provided that such Successor Owner or Successor Ground Lessee, as applicable, diligently acts to effect such cure or change (and in the event of such diligent and timely cure, such Successor Owner or Successor Ground Lessee, as applicable, shall have no further liability in connection with such prior violation or the continued existence of such violation until such cure is completed), and (b) City's right to damages or abatement shall not be applicable as to such Successor Owner or Successor Ground Lessee, as applicable, with regard to any noncurable default occurring prior to the time such Successor Owner or Successor Ground Lessee, as applicable, acquired title. Notwithstanding the foregoing, each Successor Owner and Successor Ground Lessee, as applicable, shall be required to use the Parcel in accordance with the requirements of this Agreement and, the provisions of this Section shall be subject to the rights and protections afforded to any Permitted Leasehold Mortgagee pursuant to any Subordination Agreement between the City and such Permitted Leasehold Mortgagee, and the right and protections of the Permitted Leasehold Mortgagee under the Subordination Agreement shall not be abridged, limited or otherwise affected by the provisions of this Section or any other provisions of this Agreement. 14. Estoppel Certificate. Each party hereby covenants that within thirty (30) calendar days of the written request of any other party, but not more than annually, it will issue to such other party an estoppel certificate stating: (i) whether the party to whom the request has been directed knows of any default under this Agreement and if there are known defaults specifying the nature thereof; (ii) whether to its knowledge this Agreement has been assigned, modified, or amended in any way (and if it has, then stating the nature thereof); and whether to the party's knowledge this Agreement is as of that date is in full force and effect, provided that in no event shall an estoppel be requested more often than annually. 15. Runs With the Land; Release and Termination; Lot "A". 15.1. This Agreement and the terms, provisions, promises, covenants and conditions hereof constitute and shall be enforceable as equitable servitudes and covenants running with the land comprising the Real Property and burdening the Real Property and, as to each Parcel, in accordance with the provisions of this Agreement, including the provisions in this Section 15, binding upon Developer and each Successor Owner having any right, title or interest in the Real Property and each and every Person claiming by, through or under Developer or any Successor Owner, including each Ground Lessee and Successor Ground Lessee, but excluding any End Users, for the benefit of the City Property and City. Each Owner and Ground Lessee shall only be Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 16 Por. Disp. Areas 213, 2C and 8 liable for the obligations and liabilities under this Agreement related to the Parcel owned or leased by such Person and which Accrue during the period that such Owner owns its interest or Ground Lessee holds a leasehold interest in a Ground Lease in the applicable Parcel and such Owner and Ground Lessee shall not be liable for those obligations or liabilities that first Accrue after such period of ownership and no such Owner or Ground Lessee shall be liable for those obligations or liabilities of another Owner or Ground Lessee, except that: (a) the foregoing shall not be deemed to modify or negate any longer or shorter periods of liability, or scope of responsibility for any Owner set forth in the DDA, during its term, or in the Special Restrictions (as to provisions of the DDA incorporated therein); (b) prior to recording in the Official Records by the City of a Certificate of Compliance for a Parcel pursuant to the DDA, any Transfer (as defined in the DDA) shall be permitted only in accordance with the requirements of the DDA and Developer shall remain liable under this Agreement for matters Accruing prior to recording in the Official Records by the City of the Certificate of Compliance for that Parcel, notwithstanding the Transfer, until released from its obligations pursuant to the DDA or in the conditions to Transfer (as defined in the DDA) imposed by the City, if any; (c) following recording in the Official Records by the City of a Certificate of Compliance for a Parcel, if a transferee is an Affiliate of the transferor Owner or Ground Lessee, the transferee Owner or Ground Lessee, as applicable, shall be deemed to have assumed and be liable for the obligations and liabilities of the transferor Owner or Ground Lessee, as applicable, and each consecutive prior transferor Affiliate as though such transferee Owner or Ground Lessee, as applicable, had held joint ownership (or joint leasehold interest) with the transferor Owner or Ground Lessee, as applicable, and each consecutive prior transferor Affiliate of it during their respective prior consecutive periods of ownership or lease of such Parcel; and (d) for all purposes under this Agreement, the Owner of "Lot 1" as shown on the Tentative Tract Map shall be deemed to be the Owner of "Lot A" as shown on the Tentative Tract Map, as such lots may be modified by the Developer Final Tract Map, and the "Parcel" owned by such Owner of "Lot 1" shall be deemed to include "Lot A". 15.2. Each Owner shall, notwithstanding that there is a Ground Lease in effect, be responsible to perform all obligations and assume all liabilities of Owner under this Agreement with respect to each Parcel owned by such Owner and the Landscape Improvements thereon as though the Ground Lease were not in effect. 16. Miscellaneous. 16.1. Excuse for Non -Performance. Each party shall be excused from performing any obligation or undertaking provided in this Agreement except any obligation to pay any sum of money under the applicable provisions hereof, in the event and so long as the performance of any such obligation is prevented or delayed, retarded, or hindered by act of God, fire, earthquake, Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 17 Por. Disp. Areas 213, 2C and 8 floods, explosion, actions of the elements, war, invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials, or supplies in the ordinary course on the open market; failure of normal transportation strikes, lockouts, action of labor unions, condemnation, requisition, laws, orders of governmental or civil or military authorities, provided that delays resulting from a lack of funding or financing or from pandemic, epidemic or quarantine or similar matters shall not be an excuse for nonperformance. 16.2. Effect on Third Parties. Except as herein specifically provided, no person shall be deemed to be a third -party beneficiary of any of the provisions contained herein. 16.3. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the terms and conditions thereof. Prior agreements, representations, negotiations, and understandings of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein, provided that nothing in this Agreement shall limit or restrict the applicability of the DDA, the Quitclaim Deed and the Special Restrictions for the respective terms thereof. 16.4. Modification. Except as set forth in Section 7 with respect to termination of licenses and access rights, this Agreement may not be modified in any respect or rescinded, in whole or in part, except by an instrument in writing, duly executed and acknowledged by the City or its successors and assigns and the Owner(s) that are the record owners of the portion of the Boundary Landscape Area that is the subject of such change, modification, amendment or rescission. Any change, modification, amendment or rescission which is made without the written consent of such owners shall be null and void and of no effect. No consent or approval of any lessee, easement holder or of any owner other than those owners described in the first sentence of this Section shall be required to modify or amend any provisions of this Agreement. 16.5. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 16.6. Governing. This Agreement and the obligations of the parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the State of California. 16.7. Waiver and Default. The waiver by one party of the performance of any provision of this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other provision under this Agreement or of any subsequent breach by the other party of the same provision. 16.8. References to Sections, Clauses and Exhibits. Unless otherwise indicated, references in this Agreement to sections, clauses and exhibits are to the same contained in or Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 18 Por. Disp. Areas 213, 2C and 8 attached to this Agreement and all exhibits referenced in this Agreement are incorporated in this Agreement by this reference as though fully set forth in this Section. 16.9. Counterparts. This Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all parties, even though all parties are not signatory to the same counterpart. 16.10. Construction. The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any party. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each party has been given the opportunity to independently review this Agreement with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the party preparing it. The provisions of California Civil Code Section 1654 are specifically waived by each party hereto. 16.11. Additional Definitions. When stated in connection with performance by a Party, the word "shall" imposes a mandatory requirement on that Party to perform the stated act or requirement (and shall be synonymous with "must") and the term "shall not" imposes a mandatory requirement on that Party not to perform the stated act or requirement (and shall be synonymous with "must not"). The word "may" is permissive and does not impose any mandatory requirement on a Party to perform the stated act. [signature page follows] Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL 19 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, City and Developer have signed this Agreement as of the date first set forth above. CITY OF TUSTIN: Dated: By: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City By: Amy E. Freilich Aldo E. Schindler City Manager DEVELOPER: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL S-1 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Art 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL S-2 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Art 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL S-2 Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date personally appeared before me, , (Insert Name and Title of the Officer) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Art 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL S-2 Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOTS 11, 12 AND 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE MATTERS SET FORTH IN SECTION 2 OF THE QUITCLAIM DEED FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 AND COVENANTS, CONDITIONS AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471 DATED OF EVEN DATE HEREWITH AND RECORDED PRIOR TO THE RECORDING HEREOF IN THE OFFICE OF THE COUNTY CLERK RECORDER FOR ORANGE COUNTY, CALIFORNIA. FOR CONVEYANCING PURPOSES ONLY: APN'S 430-481-02, 03, 04 AND 05 Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL Exhibit A Por. Disp. Areas 2B, 2C and 8 EXHIBIT B DEPICTION OF CITY PROPERTY [see attached] Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL Exhibit B Por. Disp. Areas 213, 2C and 8 ATTACHMENT 21 B - DEPICTION OF CITY PROPERTY wgR�F� PEEBLER WAY w D z w Q U3 U) Q 75 O FLIGHT WAY LEGEND — - - — PROPERTY LINE CITY PROPERTY 11 E N G I N E E R I N G FXiST�N RO G e cMTYOTq NF�� OTpq�F F !+ SCALE: 1 " = 250' TUSTIN LEGACY APARTMENT HOMES EXHIBIT C DEPICTION OF BOUNDARY LANDSCAPE AREA [see attached] Tustin Irvine Co DDA Att 21 Landscape Attachment 21 City of Tustin/Irvine Company Agreement 03.10.25 (HM)(2) FINAL Exhibit C Por. Disp. Areas 213, 2C and 8 ATTACHMENT 21 - LANDSCAPE INSTALLATION AND MAINTENANCE EXHIBIT C - BOUNDARY LANDSCAPE AREA BY LOT OWNER - - - - CURRENT LOT LINE - - - - FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT AP) ` BOUNDARY LANDSCAPE AREA (FUTURE LOT 1) / BOUNDARY LANDSCAPE AREA (FUTURE LOT 2) yT� FUTURE LOT LINE CURRENT LOT 11 BUILDING 1 FUTURE LOT 1 FUTURE LOT A 1, .w BUILDING 2 ' msi�� � �I ®� TURE O I m TUSTIN RANCH RD. Ao RLS W�E E N G I N E E R I N G EBUILDING �y N w w w w N SCALE: ill =80' SHEET 1 OF 5 a 0 N TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 21 - LANDSCAPE INSTALLATION AND MAINTENANCE EXHIBIT C - BOUNDARY LANDSCAPE AREA BY LOT OWNER I CURRENT LOT LINE — — — — FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT MAP) BOUNDARY LANDSCAPE AREA (FUTURE LOT 1) sy \ AFT BOUNDARY LANDSCAPE AREA FUTURE �� `� (FUTURE LOT 2) LOT A FUTURE LOT LINE o�J o o il: BUILDING 2 CURRENT LOT 11 TUSTIN RANCH RD. 40 RLS W�E E N G I N E E R I N G FUTURE LOT 2 N SCALE: 1"=80' SHEET 2 OF 5 E TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 21 - LANDSCAPE INSTALLATION AND MAINTENANCE EXHIBIT C - BOUNDARY LANDSCAPE AREA BY LOT OWNER SEE SHEET 4 PEEBLE WAY FUTURE I LOT LINE z � wLi L-i Li 1 L � �\ w w CURRENT Q LOT 12 cn cn Q 0- BUILDING 3 p r, FUTURE U LOT 3 SEA LEGEND - - - - CURRENT LOT LINE - - - - FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT MAP) BOUNDARY LANDSCAPE AREA (FUTURE LOT 3) BOUNDARY LANDSCAPE AREA (FUTURE LOT 4) ,o RLECm E N G I N E E R I N G !+ SCALE: ill =80' SHEET 3 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 21 - LANDSCAPE INSTALLATION AND MAINTENANCE EXHIBIT C - BOUNDARY LANDSCAPE AREA BY LOT OWNER PEEBLE WAY I FC;FNn T SEE SHEET 3 — - - — CURRENT LOT LINE — — — — FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT MAP) BOUNDARY LANDSCAPE AREA (FUTURE LOT 3) BOUNDARY LANDSCAPE AREA (FUTURE LOT 4) ,o RLECm E N G I N E E R I N G SCALE: ill =80' SHEET 4 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 21 - LANDSCAPE INSTALLATION AND MAINTENANCE EXHIBIT C - BOUNDARY LANDSCAPE AREA BY LOT OWNER WARNER AVENUE I Fr.Fzmn AIRSHIP AVENUE - - - - CURRENT LOT LINE SEE SHEET 4 - - - - FUTURE LOT LINE (SUBJECT TO CHANGE IN CONNECTION WITH RECORDING THE DEVELOPER FINAL TRACT MAP) BOUNDARY LANDSCAPE AREA (FUTURE LOT 5) BOUNDARY LANDSCAPE AREA (FUTURE LOT 6) E N G I N E E R I N G � 0 L.L U a (D w J SCALE: ill =80' SHEET 5 OF 5 TUSTIN LEGACY APARTMENT HOMES ATTACHMENT 22 FORM OF BILL OF SALE FOR FORMER MILITARY PERSONAL PROPERTY AND OTHER PERSONAL PROPERTY LOCATED AT THE FORMER MARINE CORPS AIR STATION, TUSTIN This Bill of Sale ("Bill of Sale") dated as of , 202_ is made by and between the CITY OF TUSTIN, a municipal corporation organized under the laws of the State of California ("City"), acting in its capacity as the Local Redevelopment Authority for the disposition and conveyance of portions of the former Marine Corps Air Station Tustin, and TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company ("Developer"). RECITALS A. Pursuant to the Agreement Between the United States of America and the City of Tustin, California For the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated May 13, 2002 ("Conveyance Agreement"), the Federal Government through the Secretary of the Navy ("Navy") conveyed or leased to the City portions of the former Marine Corps Air Station Tustin ("MCAS Tustin"). The Transferred Utility Systems (as defined below) conveyed under this Bill of Sale were acquired by the City from the Navy by reason of the closure of the MCAS Tustin. B. The City and Developer entered into that certain Disposition and Development Agreement for Portions of Disposition Parcels 213, 2C and 8 (Tustin Legacy), dated as of , 20_ f{if not amended insert.) (the "DDA') / {if amended insert:) ("Original DDA') /and insert any amendments to the DDA:) (the "DDA")] pursuant to which, among other things, the City agreed to sell, and Developer agreed to purchase the Property, including certain Intangible Property, as those terms are defined in the DDA. The property conveyed to Developer by the City in fee pursuant to that certain Quitclaim Deed For Portions of Disposition Parcels 213, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 of even date herewith ("Quitclaim Deed") is referred to herein as the "Real Property". Initially capitalized terms used and not otherwise defined in this Bill of Sale shall have the meanings set forth in the DDA. C. Pursuant to this Bill of Sale, the City intends to transfer to Developer (1) all Intangible Property, (2) the Transferred Utility Systems owned by the City, and (3) all Horizontal Improvements constructed on the Real Property (whether complete or under construction), in each case subject to the limitations set forth below. Tustin Irvine Co DDA Att 22 Bill of Sale Attachment 22 City of Tustin/Irvine Company 02.11.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and other consideration set forth herein, it is mutually agreed as follows: 1. Transfer. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City hereby quitclaims and transfers to Developer all of the City's right, title and interest in the following with respect to the Real Property, comprising the "Personal Property": (a) the Intangible Property and (b) the Transferred Utility Systems (whether complete or under construction),' but in each case, specifically excluding the City's interest in any franchise or similar agreements with third parties and the right of the City to negotiate and enter into franchise agreements or grant franchise rights to third parties under applicable law. 2. Definition of Transferred Utility Systems. For purposes of this Bill of Sale the following terms shall have the meanings set forth below: a. "Transferred Utility Systems" shall mean those Utility Systems in the Real Property which were transferred from the Navy to the City, and which are not being used by or reserved for future use by the City or any third Person as a public service infrastructure. b. "Utility Systems" shall mean all utility distribution systems and shall include the following: (a) all current City -owned electrical, gas, telephone and cable television systems, including distribution lines, pad mounted and overhead distribution poles and/or transformers, (b) all conduits and duct banks from outlet or master meters or connection points outside the Real Property to end usage points on the Real Property; and (c) all water, sewer and storm drain systems (other than culvert ditches), including distribution lines and pipelines from outlet or master meters or connection points outside the Real Property to end usage points on the Real Property. 3. Reversion. In the event of a default by Developer or any of its successors in title to the Real Property and upon the exercise by the City of its Right of Purchase or Right of Reversion under the DDA with respect to all or any portion of the Real Property, at the option of the City, all right, title and interest of Developer in and to the Personal Property, or any portion thereof as determined by the City, shall, upon written notice from the City to Developer, pass to and become the property of the City, the City shall have an immediate right to such Personal Property, and Developer and its successors and assigns shall forfeit all right, title, and interest in and to such Personal Property. Developer hereby agrees for itself and its successors and assigns to execute any assignments, transfers of title, bills of sale or other documents to effectuate the foregoing. 4. Former Military Property; No Warranty. Developer hereby agrees and acknowledges that the City has no knowledge and makes no representations as to the accuracy of the description of the Transferred Utility Systems or the fitness, adequacy or safety of the Personal Property for ' NTD: Confirm there will be no Horizontal Improvements constructed on the Parcel at Close of Escrow; if there will be, those also need to be conveyed. Tustin Irvine Co DDA Att 22 Bill of Sale Attachment 22 City of Tustin/Irvine Company 02.11.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 any particular purpose. The Personal Property is delivered to Developer on an "AS -IS -WHERE - IS, WITH ALL FAULTS" basis, and Developer acknowledges that the City has made no representations or warranties of any kind whatsoever (excepting only those representations and warranties of the City expressly set forth in Section 3.3 of the DDA), either express or implied in connection with any matters with respect to the Personal Property or any portion thereof, and further that, except as otherwise specifically provided in Section 3.3 of the DDA, the City has not made and does not make and specifically negates and disclaims any representations, warranties, promises, agreements or guaranties of any kind or character, whether express or implied, oral or written, past, present or future, whether by the City or any of its agents, elected or appointed officials, representatives or employees, of concerning or with respect to: {Text below to be conformed to DDA text in Section 4.5.2 to the extent there are revisions other than replacement of "Property" or "Development Parcels" used in the DDA with "Personal Property" in the text below) a. the value of the Personal Property or the income to be derived from the Personal Property; b. the existence or non-existence of any liens, easements, covenants, conditions, restrictions, claims or encumbrances affecting the Personal Property (including any of the foregoing arising from or related to the Entitlements or any of the Other Agreements); C. the suitability of the Personal Property for any and all future development of the Market Rate Project Improvements and the Affordable Project Improvements and the other uses and activities which Developer may conduct upon the Real Property, including the development of the Market Rate Project, the Affordable Project and Property as described in the DDA and the Other Agreements; d. the ability of the City or any third party to complete, or likelihood of the completion of, any of the improvements and infrastructure described by the General Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program or any other plan or policy of the City or any other Governmental Authority; e. the compliance with or enforcement by the City or any third party of the General Plan, the Specific Plan, the Special Restrictions applicable to the Real Property or the special restrictions or other covenants and agreements applicable to other property at Tustin Legacy, any covenants, conditions and restrictions, the Tustin Legacy Backbone Infrastructure Program or any other agreement or governmental restriction or plan affecting Tustin Legacy; £ the habitability, merchantability or fitness for a particular purpose of the Personal Property; g. the manner, quality, state of repair or lack of repair of the Personal Property; h. the nature, quality or condition of the Personal Property; i. the compliance of or by the Personal Property and/or its operation in accordance with any of the Entitlements or any Governmental Requirement, including the National Environmental Policy Act, CEQA and the Americans with Disabilities Act of 1990; Tustin Irvine Co DDA Att 22 Bill of Sale Attachment 22 City of Tustin/Irvine Company 02.11.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 j. the manner or quality of the construction or materials, if any, incorporated into the Personal Property; k. the presence or absence of Hazardous Materials, including asbestos or lead paint at, on, under, or adjacent to the Personal Property or in other locations at Tustin Legacy; 1. the content, completeness or accuracy of the information, documentation, studies, reports, surveys and other materials delivered to Developer in connection with the Personal Property and the transactions contemplated in the DDA and the Other Agreements; in. the conformity of the existing improvements comprising the Personal Property to any plans or specifications for the Personal Property relating to the Development Parcels or the Project; n. compliance of the Personal Property with past, current or future Governmental Requirements relating to zoning, subdivision, planning, building, fire, safety, health or Environmental Matters and/or covenants, conditions, restrictions or deed restrictions; o. the deficiency of any undershoring or of any drainage to on or from the Real Property or the Personal Property or any other portion of Tustin Legacy or its effect on the Personal Property; p. the condition of any adjoining land owned by the City, including any property and improvements covered by the Landscape Installation and Maintenance Agreement; q. the fact that all or a portion of the Personal Property may be located on or near an earthquake fault line or falls within an earthquake fault zone established under the Alquist-Priolo Earthquake Zone Act, California Public Resources Code Sections 2621-2630 or within a seismic hazard zone established under the Seismic Hazards Mapping Act, California Public Resources Code Sections 2690-2699.6 and Sections 3720-3725; r. the existence or lack of vested land use, zoning or building entitlements, permits or approvals affecting the Personal Property; S. the construction or lack of construction of Tustin Legacy or if constructed, the construction of Tustin Legacy in accordance with design guidelines, plans and specifications previously or to be prepared therefor; t. the conditions, covenants and restrictions imposed or to be imposed upon the Personal Property or any portion thereof under the DDA, the Other Agreements or the Entitlements; U. the contents of the Memorandum of Agreement, the Federal Deed, the Base Closure Law and the FOST; and V. any other matters. 5. Environmental Condition of the Personal Property, Restrictions. Without limiting the generality of the foregoing provisions, the City makes no representation or warranty as to the Tustin Irvine Co DDA Att 22 Bill of Sale Attachment 22 City of Tustin/Irvine Company 02.11.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 environmental condition of the Personal Property or any portion thereof, the Navy's obligations with respect to the environmental condition of the Personal Property, if any, or the adequacy or accuracy of any environmental report that has been rendered. Developer acknowledges and agrees that (i) there may be some residual contamination on the Personal Property as a result of Navy historic activities; (ii) the Navy has agreed to accept certain limited responsibility for any contamination it caused, including any contamination discovered after transfer from the Navy, in accordance with existing Governmental Requirements including the National Defense Authorization Act For Fiscal Year 1993 as amended (Public Law No. 102-434) Section 330 and Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9620(h) ("Navy Responsibilities"); and (iii) the deed restrictions contained in the Federal Deed are binding upon the City and its successor and assigns (and therefore, shall be binding upon Developer with respect to the Real Property and the Personal Property upon Developer's acquisition of the Real Property). 6. Indemnification. The City shall not be responsible for, and Developer hereby agrees that it shall be responsible for and at all times shall relieve, indemnify, protect, defend and hold harmless the City and its successors and assigns and its appointed and elected officials, agents, attorneys, affiliates, employees, contractors and representatives and their respective successors and assigns (collectively referred to as "Indemnified Parties"), from any and all claims and demands, actions, proceedings, losses, liens, costs and judgments of any kind and nature whatsoever, including expenses incurred by the Indemnified Parties in defending against legal actions, for death or injury to persons or damage to property and for civil fines and penalties arising or growing out of, or in any manner connected with, any alteration of the Transferred Utility Systems or the Horizontal Improvements or Developer's failure to obtain consent prior to any such alteration, or the ownership, use, operation, maintenance, storage, alteration, sale or lease of any Personal Property transferred under this Bill of Sale. 7. Miscellaneous. a. Modification. No amendment, change, modification or supplement to this Bill of Sale shall be valid and binding on the City or Developer unless it is evidenced in a writing signed by the party against which enforcement is sought. b. Applicable Law. This Bill of Sale shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California's choice -of -law principles. C. Binding Effect. This Bill of Sale and the terms, provisions, promises, covenants and conditions hereof shall be binding upon and inure to the benefit of the City and Developer and their respective heirs, legal representatives, successors and assigns. d. Counterparts. This Bill of Sale may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall together constitute and shall be one and the same instrument. This Bill of Sale shall not be effective until the execution and delivery by the City and Developer of at least one set of counterparts. The City and Developer agree to recognize execution of this Bill of Sale by facsimile or other electronically transmitted signatures; provided that such execution by facsimile Tustin Irvine Co DDA Att 22 Bill of Sale Attachment 22 City of Tustin/Irvine Company 02.11.25 (HM) FINAL 5 Por. Disp. Areas 213, 2C and 8 or electronic transmission shall not be effective unless a manually executed copy of the signature page is promptly sent by U.S. Postal Service, postage prepaid or overnight delivery service or is hand delivered to the City and Developer. The City and Developer hereby authorize each other to detach and combine original signature pages and consolidate them into a single identical original. Any one of such completely executed counterparts shall be sufficient proof of this Bill of Sale. [signature page follows] Tustin Irvine Co DDA Att 22 Bill of Sale Attachment 22 City of Tustin/Irvine Company 02.11.25 (HM) FINAL 6 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the Developer and City have executed this Bill of Sale on the date first above written. CITY OF TUSTIN: Dated: By: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City By: Amy E. Freilich Name: Aldo E. Schindler Title: City Manager DEVELOPER: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: _ Name: Title: By: _ Name: Title: ATTACHMENT 23 MAXIMUM SPECIAL TAXES FOR DEVELOPED PROPERTY FOR FISCAL YEAR 2024-2025 COMMUNITY FACILITIES DISTRICT NO.2018-01 ZONE 3 Land Use Fiscal Year 2024-2025 Class Land Use Maximum Special Tax $1,364.28 1 APARTMENTS PER DWELLING UNIT 2 AFFORDABLE APARTMENTS N/A $2.64 3 COMMERCIAL PROPERTY PER BUILDING SQUARE FOOT Exclusion of Certain Amenities from Commercial Property The term "Commercial Property" shall be defined in the RMA to exclude any resident amenities operated or managed by Developer (or affiliate) so that they are not subject to the CFD 18-01 Zone 3 Special Tax. Developer, on an annual basis, shall provide the City with written certification of such excluded amenities. Increase in the Maximum Special Tax On each July 1, commencing on July 1, 2025, the Maximum Special Tax for Developed Property shall be increased annually by the greater of (a) the change in the Consumer Price Index during the twelve (12) months prior to December of the previous Fiscal Year not to exceed three percent (3.00%) and (b) two percent (2.00%). Any incremental adjustment shall be rounded to the nearest one -tenth of a percent. "Consumer Price Index" means, for each Fiscal Year, the "All items in Los Angeles -Riverside - Orange County, CA, all urban consumers, not seasonally adjusted" index published by the U.S. Bureau of Labor Statistics (Series ID: CUURA421 SAO), measured as of the month of December in the calendar year that ends in the previous Fiscal Year. In the event this index ceases to be published, the Consumer Price Index shall be another index as determined by the CFD Administrator that is reasonably comparable to the Consumer Price Index. "Fiscal Year" means the period starting July 1 and ending on the following June 30. ATTACHMENT 24A FORM OF SUBORDINATION AGREEMENT (Permitted Leasehold Mortgage) CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The City of Tustin 300 Centennial Way Tustin, CA 92708 Attn: City Manager SPACE ABOVE THIS LINE FOR RECORDER'S USE SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of 202_ ("Effective Date"), by and between , a ("Lender"), and CITY OF TUSTIN, CALIFORNIA, a municipal corporation duly organized and existing under the laws of the State of California ("City"). RECITALS A. The City and Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Initial Developer"), entered into that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 202_, as the same may has been and may be amended from time to time ("DDA"), with respect to certain real property referred to therein and herein as the "Development Parcels". A Memorandum of DDA was recorded against the Development Parcels in the Official Records of Orange County, California ("Official Records") on 202_ as Instrument No. ("Memorandum"). Under the DDA, and as reflected in the Memorandum, the City is entitled to a lien to secure certain amounts payable to the City, which lien is referred to in the DDA, the Memorandum, and in this Agreement as the "City Lien" (and which term as used in this Agreement shall also include any lien created pursuant to any Property Document, as that term is defined below, regardless of how designated in the Property Document). Tustin Irvine Co DDA Att 24A Subordination ATTACHMENT 24A City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 B. City and Initial Developer entered into that certain Development Agreement, dated as of , 202. and recorded in the Official Records on , 202 as Instrument No. ("DA"). C. Pursuant to the DDA, the City has conveyed the Development Parcels to [Initial Developer/ successor in interest to Initial Developer (`Developer')]. D. [Initial Developer/Developerl has conveyed a ground lease interest in [if the Ground Lease affects all of Lot 13] [the] [if the Ground Lease affects only one of the Parcels constituting Lot 13] [a] portion of the Development Parcels known as Lot 13, legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Affordable Parcel"), to {insert name of Affordable Housing Developer) ("Borrower") by a {insert title of Ground Lease), dated , 20_ (the "Ground Lease"), a memorandum of which [is intended to be/was] recorded in the Official Records [on , 20 as Instrument No. I E. The leasehold interest created by the Ground Lease in the Affordable Parcel, together with the improvements and related personal and other property described in the Security Instrument (defined herein), are referred to as the "Mortgaged Property". F. The City and [Initial Developer/Developerl have also previously executed the following documents, each of which has been recorded against the Affordable Parcel in the Official Records on , 202_ (collectively with the DA, as the same may be amended from time to time, the "Property Documents"): (1) Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement. dated as of 202_, and recorded in the Official Records as Instrument No. ; (2) Declaration of Special Restrictions, dated as of , 202_ and recorded in the Official Records as Instrument No. (the "Special Restrictions"); (3) Public Access Covenant, dated as of , 202_ and recorded in the Official Records as Instrument No. ; (4) Quitclaim Deed for Portions of Disposition Areas 213, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471, dated as of , 202 and recorded in the Official Records as Instrument No. ; and (5) Landscape Installation and Maintenance Agreement, , 202 and recorded in the Official Records as Instrument No. _ (the "Landscape Agreement"). dated as of Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 2 Por. Disp. Areas 2B, 2C and 8 Borrower's ground leasehold interest created under the Ground Lease in the Affordable Parcel is subject to the encumbrance of the Property Documents and the City Lien. G. In connection with the conveyance of the Affordable Parcel to [Initial Developer/Developer], TIC Acquisition and Development LLC, a Delaware limited liability company, has executed and delivered a Guaranty to the City dated , 202_, which Guaranty has been reaffirmed by the Reaffirmation of Guaranty (Affordable Project), dated 202 . {If Developer has entered into a Joint Use Agreement as described in the DDA} [In accordance with the terms of the DDA, Initial Developer/Developer have entered into a joint Use Agreement, dated , 202 (the "Joint Use Agreement"), which Joint Use Agreement has been recorded in the Official Records as Instrument No. H. Lender has agreed to make a loan to Borrower in the maximum principal amount of $ (the "Loan") for the design, construction, development, equipping and/or operation of the Affordable Parcel, which Loan is initially evidenced by that certain [Note], dated as of , 202_, made by Borrower payable to the order of Lender (the "Note") and that certain [Construction Loan Agreement], dated as of , 202_, between Borrower and Lender (the "Loan Agreement"). I. The Loan is secured by, among other things, that certain {insert full document title for Deed of Trust), dated as of the date hereof and executed by Borrower for the benefit of Lender ("Security Instrument"; together with the Note, the Loan Agreement, and all other documents executed in connection with the Loan, are referred to collectively as the "Loan Documents"), which Security Instrument encumbers the Mortgaged Property and was recorded in the Official Records concurrently herewith. J. Under the terms of the Ground Lease, Borrower is permitted from time to time to enter into other financing arrangements secured by up to three Permitted Leasehold Mortgages (including the Security Instrument) and up to two Affiliate Leasehold Mortgages. Such other Permitted Leasehold Mortgages are referred to as the "Other Permitted Leasehold Mortgages." K. As a condition to the making of the Loan, Lender requires and Borrower requests that the City and Lender execute and deliver this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and the City agree as follows: 1. DEFINITIONS. The following terms, when used in this Agreement (including, as appropriate, when used in the above recitals), shall have the following meanings. (a) "Action" has the meaning specified in Section 6(h). (b) "Affiliate Leasehold Mortgage" means a Mortgage, the Mortgagee under which is an Affiliate Leasehold Mortgagee. Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 3 Por. Disp. Areas 2B, 2C and 8 (c) "Affiliate Leasehold Mortgagee" means for the purposes of any Affiliate Leasehold Mortgage, a Person Controlling, Controlled by, or under common Control with Developer or Borrower. Agreement. (d) "Affordable Parcel" has the meaning specified in Recital D to this (e) "Affiliated Lender" means any Lender who is owned or controlled by Initial Developer and/or USA Properties Fund, Inc. (f) "Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency, composition, restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or custodianship action or proceeding under any federal or state law with respect to Borrower, any guarantor of any of the Indebtedness, any of their respective properties, or any of their respective partners, members, officers, directors, or shareholders. (g) "Borrower" means all Persons identified as "Borrower" in the Recitals of this Agreement, together with their successors and assigns, and any other Person who acquires title to the Mortgaged Property after the Effective Date, provided that the term "Borrower" shall not include Lender in the event that Lender acquires title to the Mortgaged Property. (h) "Borrower Document Breach" means any act, failure to act, event, condition, or occurrence that allows (but for any contrary provision of this Agreement), or which with the giving of notice or the passage of time, or both, would allow (but for any contrary provision of this Agreement), the City to take an Enforcement Action. (i) "Borrower Document Default" means the City has delivered to Lender an Enforcement Action Notice and Borrower and Lender have failed to cure the Borrower Document Breach within the cure period granted to Lender as a Permitted Mortgagee under the applicable Property Document for the applicable type of Borrower Document Breach. 0) "Business Day" means any day other than Saturday, Sunday and each City observed legal holiday. (k) "Certificate of Compliance Date" means the date on which an "Affordable Project Certificate of Compliance" (as that term is defined in the DDA) with respect to each parcel of land constituting Lot 13 (as that term is defined in the DDA) is recorded by the City in the Official Records. (1) "City" means the Person named as such in the preamble to this Agreement. (m) "City Lien" has the meaning specified in Recital A to this Agreement. (n) "City Lien Claim" means a claim that is entitled to the benefit of the City Lien. Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 4 Por. Disp. Areas 2B, 2C and 8 (o) "Control" "Controlled" or "Controlling", as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current ability to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests, acting as the manager of a limited liability company, the administrative general partner of a partnership or otherwise. Notwithstanding the foregoing, the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute "Control" if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person. (p) "Costs" has the meaning specified in Section 6(h). (q) "DA" has the meaning specified in Recital B to this Agreement. (r) "DDA" has the meaning specified in Recital A to this Agreement. (s) "Decision" has the meaning specified in Section 6(h). (t) "Development Parcels" has the meaning specified in Recital A to this Agreement. (u) "Effective Date" has the meaning specified in the preamble to this Agreement. (v) "Enforcement Action" means any of the following actions taken by or at the direction of the City: the seeking of default interest or charges, the taking of possession or control of any of the Mortgaged Property (including the fee interest therein), the commencement of any suit or other legal or administrative proceeding based upon the Property Documents or the City Lien, or the exercise of any other remedy against Borrower, provided that the term "Enforcement Action" shall not include (1) the exercise of the Right of Repurchase or the Right of Reversion or (2) any rights or actions taken by the City in the exercise of its police powers. (w) "Enforcement Action Notice" means a written notice from the City to Lender, given following one or more Borrower Document Breaches setting forth in reasonable detail the nature of the breach by Borrower. (x) "First Priority Mortgagee" means whichever of Lender or the Other Permitted Leasehold Permitted Mortgagees holds the first priority Mortgage on the leasehold interest created under the Ground Lease. In order to determine as of any date which of the Permitted Leasehold Mortgagees holds the first priority Mortgage, the City shall be entitled to rely on the latest written instrument delivered to the City and (1) purported to be executed on behalf of all of the Persons claiming to be Permitted Leasehold Mortgagees and (2) designating which of them holds the Mortgage of first priority. Failing the existence of such an instrument, no Permitted Leasehold Mortgagee shall be entitled to any rights afforded to the First Priority Mortgagee under this Agreement. Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 5 Por. Disp. Areas 2B, 2C and 8 (y) "Foreclosure" shall mean the foreclosure of the Security Instrument (or any sale thereunder), whether by judicial proceedings, by virtue of any power of sale under the Security Instrument, by acceptance of a deed -in -lieu of foreclosure, or by any other conveyance of all or any portion of the Mortgaged Property by other appropriate proceedings in the nature of a foreclosure, resulting in the transfer of all or any portion of the Mortgaged Property to (i) Lender, (ii) any entity that Controls Lender, is Controlled by Lender, or is Controlled by an entity that also Controls Lender, (iii) any participating lender in the Loan (excluding Borrower or any Person that Controls Borrower, is Controlled by Borrower, or is Controlled by an entity that also Controls Borrower), and/or (iv) any agent or nominee for one or more of Lenders described in clauses i through (iii) of this definition. (z) "Governmental Authority" and "Governmental Authorities" shall mean, respectively, each and all federal, State, county, municipal and local governmental and quasi -governmental bodies and authorities (including the United States of America, the State of California and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over Borrower, the development, construction, maintenance, leasing, and use of improvements on the Affordable Parcel. (aa) "Governmental Capacity" means the City's governmental authority with respect to any matter related to the Development Parcels, the Property Documents, the DDA, or the DA, which shall include the regulation and entitlement of the Development Parcels pursuant to all applicable entitlements, permits, and Governmental Requirements, including enacting laws, inspecting structures, reviewing and issuing permits, and all of the other legislative and administrative or enforcement functions of each pursuant to federal, State or local law. (bb) "Governmental Requirements" shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines, conditions, instructions, and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or otherwise affecting Borrower, the Affordable Parcel, the improvements from time to time constructed on the Affordable Parcel, the development, construction, maintenance, leasing, and use of such improvements or any component thereof. (cc) "Ground Lease" has the meaning specified in Recital D to this Agreement. (dd) "Indebtedness" means "Indebtedness" as defined in the Security Instrument. {confirm this term is used in Security Instrument or define "Indebtedness" using the term used in the Security Instrument) (cc) "Initial Developer" has the meaning specified in Recital A to this Agreement. (ff) {If Developer has entered into a Joint Use Agreement as described in the DDA} ["Joint Use Agreement" has the meaning specified in Recital G to this Agreement] Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 6 Por. Disp. Areas 2B, 2C and 8 (gg) "Landscape Agreement" has the meaning specified in Recital F to this Agreement. (hh) "Lender" means the entity named as such in the preamble to this Agreement which is initially the holder of the Note, and any other Person subsequently becoming the holder of the Note, as the case may be. (ii) "Loan" has the meaning specified in Recital H to this Agreement. 0j) "Loan Default" means any act, failure to act, event, condition, or occurrence which constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an "Event of Default" /or insert comparable term from Security Instrument} as defined in the Security Instrument. Agreement. (kk) "Loan Documents" has the meaning specified in Recital I to this (11) "Memorandum" has the meaning specified in Recital A to this Agreement (mm) "Mortgage" means an indenture of mortgage or deed of trust. (nn) "Mortgagee" means any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage. Agreement. (oo) "Mortgaged Property" has the meaning specified in Recital E to this (pp) "Note" has the meaning specified in Recital I to this Agreement. (qq) "Official Records" has the meaning specified in Recital A to this Agreement. (rr) "Other Permitted Leasehold Mortgages" has the meaning specified in Recital J to this Agreement. (ss) "Permitted Leasehold Mortgage" means a Mortgage held by a Permitted Leasehold Mortgagee. (tt) "Permitted Leasehold Mortgagee" means a Person approved as a "Permitted Leasehold Mortgagee" under the terms of the DDA. (uu) "Person" means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, or other entity, domestic or foreign. (vv) "Prevailing Party" has the meaning specified in Section 6(h). Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 7 Por. Disp. Areas 2B, 2C and 8 Agreement. (ww) "Property Documents" has the meaning set forth in Recital F to this (xx) "Purchaser" has the meaning set forth in Section 5. (yy) "Qualified Institutional Lender" shall mean (i) a nationally chartered bank, national association, federal association bank, savings and loan association, investment bank, state chartered bank, lending institution, pension fund, insurance company or other institutional lender which is duly established and in the business of financing the size and type of development contemplated under the Ground Lease, and such term shall include but not be limited to Fannie Mae, Freddie Mac, FHA, Citibank, Wells Fargo, Union Bank, US Bank, and Bank of America or (ii) any of East West Bank, Bank of America, Citi Community Capital, JP Morgan Chase, Merchants Capital, Berkadia, U.S. Bank, JLL, Lument, Capital One, Greystone, Deutsche Bank, Walker & Dunlop, CBRE, Bellwether Enterprise, PNC, RBC, California Bank & Trust, and Banner Bank, or (ii) any governmental or quasi -governmental agency or joint powers authority or indenture trustee acting for or on behalf of such Person. (zz) "Right of Repurchase" has the meaning set forth in Section 3(b). (aaa) "Right of Reversion' has the meaning set forth in Section 3(b). (bbb) "Security Instrument' has the meaning specified in Recital I to this Agreement. (ccc) "Special Restrictions" has the meaning specified in Recital F to this Agreement. 2. PERMITTED LEASEHOLD MORTGAGEE. The City hereby (a) approves Lender as a Permitted Leasehold Mortgagee under the Loan with respect to the Mortgaged Property and (b) approves the Security Instrument, after it is properly recorded as an encumbrance against title to the Mortgaged Property, as a Permitted Leasehold Mortgage. If the legal or beneficial ownership of Lender changes after the Effective Date but prior to the Certificate of Compliance Date such that Lender Controls, becomes Controlled by, or becomes under common Control with Developer or Borrower, (a) the Lender and the Mortgaged Property shall remain bound by the terms of this Agreement but the Lender shall cease to have the benefits of this Agreement and (b) the City shall, upon the request of the Lender, enter into an agreement with the Lender, in substitution for this Agreement, substantially in the form of Attachment 24B to the DDA. 3. SUBORDINATION. (a) Lender hereby agrees, acknowledges and confirms that the Security Instrument is subordinate to the terms, covenants, conditions, operations, and effects of each of the Property Documents and the City Lien {If Developer has entered into a Joint Use Agreement as described in the DDA) [as well as the Joint Use Agreement]. (b) Lender acknowledges that under the terms of the DDA the City is entitled under certain circumstances to reacquire title to the fee interest in the Affordable Parcel through Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 8 Por. Disp. Areas 2B, 2C and 8 the exercise of the City's "Right of Repurchase" and "Right of Reversion" under the DDA (which rights are referred to in this Agreement as, respectively, the "Right of Repurchase" and "Right of Reversion"). (c) The effect of the subordination of the Security Instrument under Section 33a) shall apply and continue notwithstanding (i) the actual date and time of execution, delivery, recording, filing or perfection of each of the Loan Documents and each of the Property Documents and Memorandum{If Developer has entered into a Joint Use Agreement as described in the DDA}[as well as the Joint Use Agreement], and (ii) the respective rights of Lender and the City to obtain a security interest in any collateral, including any collateral other than the Mortgaged Property. (d) The City represents and warrants to Lender as follows: (i) that as of the Effective Date, to the actual knowledge of the City Manager (without a duty of inquiry), the Property Documents are in full force and effect; (ii) that the Property Documents have not been modified or amended from the executed copies of the Property Documents delivered by the City to Lender concurrently with the Effective Date; (iii) that the City has not delivered any written notice of a default or breach under any Property Document or identifying the existence of a City Lien Claim; and (iv) that to the actual knowledge of the City Manager (without a duty of inquiry), the City has not received written notice that any event has occurred, which with the giving of notice or the passage of time, or both, would constitute a default under any Property Document or a City Lien Claim. (e) Lender represents and warrants to the City as follows: (i) that as of the Effective Date, to the actual knowledge of Lender, the Loan Documents are in full force and effect; (ii) that the Loan Documents have not been modified or amended from the executed copies of the Loan Documents delivered by the City to Lender concurrently with the Effective Date; and (iii) that Lender has no knowledge of any fact or circumstance, the continuation of which would constitute a default or breach by Borrower under any Loan Document; and (iv) Lender has not received written notice that any event has occurred which, with the giving of notice or the passage of time, or both, would constitute a default under any Loan Document. (f) The City shall deliver to Lender a copy of each notice delivered by the City to Borrower pursuant to the Property Documents or with respect to any City Lien within five (5) Business Days after the City's delivery of such notice to Borrower. Lender shall deliver to the City a copy of each notice of a Loan Default delivered to Borrower by Lender. Neither giving nor failing to give a notice to Lender or the City pursuant to this Section 3(f) shall affect the validity of any notice given by Lender or the City to Borrower. (g) Within ten (10) Business Days after request by the City, but not more often than once per year (but nevertheless at any time following the occurrence and during the continuation of a default by Borrower under the Loan Documents or the Property Documents), Lender shall furnish the City with a statement, duly acknowledged and certified on behalf of Lender, confirming that to the best of Lender's knowledge, there exists no default under the Loan Documents (or describing any default that does exist), certifying to Lender's knowledge as to the other matters described in Section 3(e), and certifying to such other information with respect to the Loan Documents as the City may reasonably request, specifically including the amount of the Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 9 Por. Disp. Areas 2B, 2C and 8 Indebtedness. Lender agrees that upon the occurrence and during the continuance of any default under the Loan Documents, Lender shall provide the City, from time to time as requested by the City and within ten (10) Business Days of receipt of a request from the City, with a statement of the amount of the Indebtedness owed and the then -current balance due and, until the Certificate of Compliance Date, shall keep the City reasonably informed of any actions that Lender intends to take to address such defaults, including the enforcement of any claims against Borrower, any guarantors of the Loan, or any other Person in connection with the Loan. (h) Within twenty (20) Business Days after request by Lender, but not more often than once per year (but nevertheless at any time following the occurrence and during the continuation of a default by Borrower under the Loan Documents or the Property Documents), the City shall furnish Lender with a statement, duly acknowledged and certified on behalf of the City, certifying as to the matters described in Section 3(d), and certifying to such other information with respect to the Property Documents and the City Lien as Lender may reasonably request. (i) Lender hereby agrees that it shall provide written notice to the City when any modification of the Loan Documents is proposed to be agreed to or permitted by Lender. In addition, until the Certificate of Compliance Date, Lender agrees not to modify or agree to modify the Loan Documents (or enter into any arrangement having the same effect) without the prior written consent of the City, provided that the City shall provide specific, detailed responses should it object to any such modifications and its approval shall not be unreasonably withheld, conditioned or delayed, and provided further that it shall not be unreasonable for the City, among other things, to withhold its consent to any modification of the Loan Documents if the modifications would render the Loan Documents inconsistent with the provisions of the DDA or with the most recent "Updated Affordable Project Financing Plan" referred to in the DDA. Nothing in this Section 36) shall require the City's consent for the Lender to modify any schedule of performance or other date set forth in any of the Loan Documents or for the Lender to waive any provision of any of the Loan Documents. 4. DEFAULT UNDER PROPERTY DOCUMENTS, CITY LIEN CLAIM. (a) In the event of a Borrower Document Breach or the existence of a City Lien Claim, (i) if it is the First Priority Mortgagee only, Lender shall have the right to cure any Borrower Document Breach or City Lien Claim in the manner and to the extent provided for in Section 4(b), and the City's ability to commence any Enforcement Action with respect to such Borrower Document Breach or City Lien Claim shall be limited as and to the extent provided for in Section 4(b), (ii) Lender shall not have any obligation to cure any Borrower Document Breach or City Lien Claim, and (iii) Lender shall not be subrogated to the rights of the City under the Property Documents or otherwise by reason of Lender having cured any Borrower Document Breach or City Lien Claim. However, the City acknowledges that all amounts advanced or expended by Lender (if it is the First Priority Mortgagee) in accordance with the Loan Documents or to cure a Borrower Document Breach or City Lien Claim shall be added to and become a part of the Indebtedness under the Security Instrument and shall be secured by the lien of the Security Instrument. Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 10 Por. Disp. Areas 2B, 2C and 8 (b) Notwithstanding the provisions of the Property Documents, if any Borrower Document Breach or City Lien Claim shall occur which, pursuant to any provision of the Property Documents or the DDA, entitles the City to take any Enforcement Action upon the occurrence of a Borrower Document Default or under the terms of the City Lien, the City shall not be entitled to take such Enforcement Action unless the City, following the expiration of any cure periods provided in the applicable Property Document or the DDA to cure such Borrower Document Breach or City Lien Claim, shall have given an Enforcement Action Notice to the First Priority Mortgagee, and the First Priority Mortgagee shall fail to do either of the following: (i) within thirty (30) calendar days after delivery of such Enforcement Action Notice, cure the Borrower Document Default or City Lien Claim if the same consists of the nonperformance by Borrower of any covenant or condition of the Property Documents requiring the payment of money by Borrower to the City; or (ii) if the Borrower Document Breach is not of the type described in clause 0 of this sentence, within one hundred eighty (180) days after delivery of such Enforcement Action Notice, in Lender's sole discretion, either: (1) cure such Borrower Document Default, if the same is capable of being cured within such one hundred and eighty (180) calendar day period; or (2) if the Borrower Document Default or City Lien Claim arises from the nonperformance by Borrower of any covenant or condition of the Property Documents which is also an event of default pursuant to the Leasehold Mortgage, commence, or cause any trustee under the Security Instrument to commence, and thereafter diligently pursue to completion, Foreclosure proceedings with respect to all or substantially all of the Mortgaged Property, and thereafter cure such Borrower Document Default within ninety (90) days following the completion of the Foreclosure, provided that except as extended by Section 44c), such Foreclosure shall be completed within a maximum of one (1) year following the commencement of such proceedings. (c) If Lender is the First Priority Mortgagee and is prohibited from commencing or prosecuting a Foreclosure by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any Bankruptcy Proceeding, the times specified in clause (ii)(2) of Section 4(b) for commencing or prosecuting a Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that Lender shall have fully cured any Borrower Document Default or City Lien Claim required by clause i of Section 4(b) and shall continue to cure all such obligations as and when the same fall due. Notwithstanding the foregoing provisions of this Section 4(c), if the Foreclosure is not consummated on or before the date that is one (1) year after the date of giving of the Enforcement Action Notice, then at any time after such date (which shall not be extended by any Bankruptcy Proceeding relating to Borrower or any force majeure delay), the City may (in its sole discretion and without any further notice to Lender) commence and continue any Enforcement Action. Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 11 Por. Disp. Areas 2B, 2C and 8 (d) Lender shall not have the right to use the failure of the City to provide notice to any other Permitted Leasehold Mortgagee or any Affiliate Leasehold Mortgagee as a claim, defense or estoppel to application of these provisions with respect to the Loan Documents. (e) Lender shall deliver to the City a copy of any notice sent by Lender to Borrower of a Loan Default, including any alleged default sent by Lender under any agreement in the nature of an intercreditor or participation agreement, contemporaneously with sending such notice to Borrower. Failure of Lender to send notice to the City shall not subject Lender to any liability, but Lender shall not exercise Lender's rights and remedies under the Loan Documents until such notice is given to the City and the City shall have had the opportunity to cure the Loan Default as provided in this Section 4(e). Following the delivery of such notice to the City, the City shall have the right, but not the obligation, to cure (i) any monetary Loan Default that is the subject of such notice within thirty (30) days and (ii) any non -monetary Loan Default that is the subject of such notice within ninety (90) days. The City shall not be subrogated to the rights of Lender under the Loan Documents by reason of the City having cured any Loan Default. However, Lender acknowledges that all amounts paid by the City to Lender to cure a Loan Default shall be secured by the City Lien. (f) Lender shall not be obligated to perform any of Borrower's obligations under the Ground Lease or otherwise to construct or complete any Improvements or to guarantee such construction or completion thereof. Notwithstanding the foregoing, if any Person acquires title to any part of the Mortgaged Property or the Improvements as a result of a Foreclosure or from Lender after the completion of a Foreclosure, then such Person or entity shall be subject to all of the Property Documents and the City Lien, provided however that such Person (A) shall not be personally liable for any act or omission of any prior ground lessee (although such Person's interest in the Mortgaged Property will continue to be subject to the effects of the Property Documents and the City Lien) or (B) bound by any amendment or modification to the Property Documents made without the Lender's prior written consent. If Lender elects to construct any Improvements on the Mortgaged Property, Lender must first acquire title to the Mortgaged Property and assume all of the obligations of Borrower under all of the Property Documents, and the Improvements so constructed may only be those Improvements that Borrower would be permitted to construct under the Ground Lease. (g) Subject to the provisions of Section 4(e) and the other terms of this Agreement, Lender may pursue all rights and remedies against Borrower available to it under the Loan Documents, at law, or in equity, regardless of any Enforcement Action Notice or Enforcement Action by the City. No action or failure to act on the part of Lender in the event of a Borrower Document Default or commencement of an Enforcement Action shall constitute a waiver on the part of Lender vis-A-vis Borrower of any provision of the Loan Documents or this Agreement. (h) Neither the limitations on the City's exercise of any Enforcement Action nor any other provision of this Agreement shall restrict or limit the right of City to exercise its Governmental Capacity remedies. Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 12 Por. Disp. Areas 2B, 2C and 8 5. NON -DISTURBANCE. No acquisition by the City or its designee of any portion of the fee title to the Affordable Parcel, whether by exercise of the Right of Repurchase or the Right of Reversion or as the result of any Enforcement Action or otherwise, shall terminate the Ground Lease or the Security Instrument, provided that upon the City or its designee acquiring fee title to the Affordable Parcel (the City or its designee, and their successors or assigns acquiring such fee title interest being referred to as the "Purchaser"), if any uncured default shall then or thereafter exist under the terms of the Ground Lease, the Purchaser, upon compliance with the provisions of the immediately succeeding sentence, and upon giving any required notices set forth in the Ground Lease, shall be entitled to exercise any remedies then or thereafter available to the lessor under the Ground Lease in accordance with the terms and conditions of the Ground Lease. Lender acknowledges that, upon any termination of the Ground Lease in accordance with its terms, Lender will no longer have any collateral as to which the Security Instrument creates a lien, and that Lender will not in any case be entitled to a lien against the fee interest in any portion of the Affordable Parcel. Any Purchaser shall assume in writing all of the obligations of the lessor under the Ground Lease, but the terms of such assumption shall provide that (a) the Purchaser shall not be liable for any act or omission of any prior fee owner of the Affordable Parcel (but, unless the Purchaser is the City or its designee, shall be obligated to cure any prior lessor default arising from the lessor's failure to perform such maintenance obligations), (b) the Purchaser shall not be subject to any offsets or defenses under the Ground Lease that Borrower might have against any prior fee owner of the Affordable Parcel, (c) the Purchaser shall not be bound by any amendment or modification to the Ground Lease made without the City's prior written consent and (d) if such Purchaser is the City or its designee, the Purchaser shall not be obligated to assume the obligations of the lessor that are "Retained Obligations" under (and as defined in) the Ground Lease except with respect to maintenance of the landscaping within the Boundary Landscape Area pursuant to (and as defined in) the Landscape Agreement and maintenance of the landscaping within the Publicly Accessible Common Area pursuant to (and as defined in) the Special Restrictions (and, with respect to such obligations, shall not be obligated to cure any prior lessor default arising from the lessor's failure to perform such maintenance obligations). 6. MISCELLANEOUS PROVISIONS. (a) In the event of any conflict or inconsistency between the terms of the Property Documents and the terms of this Agreement, the terms of this Agreement shall control. (b) This Agreement shall be binding upon and shall inure to the benefit of the respective legal successors and permitted assigns of the City and the Lender. Neither the Borrower nor any other party shall be entitled to any benefits hereunder, whether as a third -party beneficiary or otherwise. (c) All notices, demands, consents, requests and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed conclusively to have been duly given (1) when hand delivered to the party for which it is intended; (2) three (3) Business Days after such notice has been sent by U.S. Postal Service via certified mail, return receipt requested, postage prepaid, and addressed to the party for which it is intended as set forth below; (3) the next Business Day after such notice has been deposited with an overnight delivery service reasonably approved by Lender and the City (Federal Express, Ovemite Express, Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 13 Por. Disp. Areas 2B, 2C and 8 United Parcel Service and U.S. Postal Service are deemed so approved), postage prepaid, addressed to the party to whom notice is being sent as set forth below with next -business -day delivery guaranteed, provided that the sender receives a confirmation of delivery from the delivery service provider; or (4) when transmitted if sent by email to the email address set forth below, provided that notices given by email shall not be effective unless either (i) a duplicate copy of such notice is promptly sent by any other method permitted under this Section 6(c) (provided that the recipient need not receive such duplicate copy prior to any deadline set forth herein), or (ii) the receiving party delivers a written confirmation of receipt for such notice either by email or any other method permitted under this Section 6(c). Any notice given by email shall be deemed received on the next Business Day if such notice is received after 5:00 p.m. Pacific Time or on a non -Business Day. Unless otherwise provided in writing, all notices with respect to this Agreement shall be addressed as follows: Notices intended for Lender shall be addressed to: If to Lender - With a copy to: With a copy to: With a copy to: Notices intended for the City shall be addressed to: If to the City: Tustin City Hall 300 Centennial Way Tustin, CA 92780 Attention: City Manager Email: citymanager@tustinca.org With a copy to: City of Tustin City Attorney Woodruff Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 Attn: David E. Kendig, Esq. Email: dkendig@wss-law.com Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 14 Por. Disp. Areas 2B, 2C and 8 Any party, by notice given pursuant to this Section 6(c), may change the person or persons or address or addresses, or designate an additional person or persons or an additional address or addresses, for its notices, but notice of a change of address shall only be effective upon receipt. Neither parry shall refuse or reject delivery of any notice given in accordance with this Section 6c. (d) Nothing herein or in any of the Loan Documents or Property Documents shall be deemed to constitute Lender as a joint venturer or partner of the City. (e) This Agreement shall be governed by the laws of the State of California, irrespective of California's choice -of -law principles. M The City and Lender agree to submit to personal jurisdiction in the State of California in any action or proceeding arising out of this Agreement. The City and Lender hereby agree and consent that without limiting other methods of obtaining jurisdiction, personal jurisdiction over them in any such action or proceeding may be obtained within or without the jurisdiction of any court located in California and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon the Person for which such service is intended by registered or certified mail to or by personal service at such Person's last known address, whether such address be within or without the jurisdiction of any such court. Any legal suit, action or other proceeding arising out of or relating to this Agreement shall be instituted only in the courts of the State of California, County of Orange or the United States District Court for the Central District of California, and each of the City and Lender hereby waives any objections which it may now or hereafter have based on venue or forum non-conveniens of any such suit, action or proceeding and submits to the jurisdiction of such courts. (g) To the extent permitted by law, each of Lender and the City waives its respective rights to a trial by jury of any claim or cause of action based on, arising from, or related to or arising out of this Agreement, in any action, proceeding, or other litigation of any type brought by either against the other, whether with respect to any cause of action in law or equity. Lender and the City agree that any such claim or cause of action shall be tried by a court in a trial without a jury. Without limiting the foregoing, the City and Lender further agree that their respective right to a trial by jury is waived by operation of this Section 6(g) as to any action, claim, counter -claim, or other proceeding that seeks, in whole or in part, to challenge the validity or enforceability of this Agreement. This waiver shall apply to any future amendments, renewals, supplements, or modifications to this Agreement. (h) If either the City or Lender institutes any action, suit, counterclaim or other proceeding for any relief against the other, declaratory or otherwise (collectively, an "Action"), to enforce the terms hereof or to declare rights hereunder or with respect to any inaccuracies or material omissions in connection with any of the covenants, representations, warranties or obligations on the part of the other, then the Prevailing Party in such Action shall be entitled to have and recover of and from the other party all costs and expenses of the Action, including (1) the Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 15 Por. Disp. Areas 2B, 2C and 8 Prevailing Party's reasonable attorneys' fees which shall be payable at the actual contractual hourly rate for City's litigation counsel at the time the fees were incurred, and (2) costs actually incurred in bringing and prosecuting such Action and enforcing any judgment, order, ruling or award (collectively, a "Decision") granted therein, all of which shall be deemed to have accrued on the commencement of such Action and shall be paid whether or not such Action is prosecuted to a Decision. Any Decision entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including reasonable attorneys' fees and expert fees and costs (collectively, "Costs") incurred in enforcing, perfecting and executing such judgment. For the purposes of this Section 6(h), Costs shall include in addition to Costs incurred in prosecution or defense of the underlying action, reasonable attorneys' fees, costs, expenses and expert fees and costs incurred in the following: (1) post judgment motions and collection actions; (2) contempt proceedings; (3) garnishment, levy, debtor and third -party examinations; (4) discovery; (5) bankruptcy litigation; and (6) appeals of any order or judgment. "Prevailing Party" within the meaning of this Section 6(h) includes a party who agrees to dismiss an Action in consideration for the other party's payment of the amounts allegedly due or performance of the covenants allegedly breached, or a party who obtains substantially the relief sought by such party. (i) If any one or more of the provisions contained in this Agreement, or any application thereof, shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein, and any other application thereof, shall not in any way be affected or impaired thereby. 0) This Agreement shall terminate upon the payment of all the Indebtedness and the release of record of the Security Instrument. (k) No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. (1) References in this Agreement to "Sections" are to the sections of this Agreement unless otherwise specified. As used in this Agreement the words "include" and "including" mean, respectively, "include, without limitation" and "including, without limitation". (m) This Agreement may be amended, changed, modified, altered or terminated only by a written instrument or written instruments signed by the parties to this Agreement. (n) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. [Signature and Acknowledgement Pages to Follow] Tustin Irvine Co DDA Att 24A ATTACHMENT 24A City of Tustin/Irvine Co. Subordination Agmt 03.11.25 (HM) FINAL 16 Por. Disp. Areas 2B, 2C and 8 IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. LENDER: Name: Title: CITY: CITY OF TUSTIN: Dated: By: ATTEST: Erica N. Rabe, City Clerk APPROVED AS TO FORM: IRa David Kendig, City Attorney Hepner & Myers LLP City of Tustin Special Real Estate Counsel IN Amy E. Freilich Aldo E. Schindler, City Manager Tustin Irvine Co DDA Att 24A Subordination ATTACHMENT 24A City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL S-1 Por. Disp. Areas 213, 2C and 8 CONSENT OF BORROWER Borrower hereby acknowledges receipt of a copy of this Subordination Agreement, dated as of , 20_, by and between and The City of Tustin and consents to the agreement of the parties set forth herein. {INSERT BORROWER ENTITY) Name: Title: Date: Tustin Irvine Co DDA Att 24A Subordination ATTACHMENT 24A City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL S-2 Por. Disp. Areas 213, 2C and 8 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, , (insert name of notary) 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 (Seal) Tustin Irvine Co DDA Att 24A Subordination ATTACHMENT 24A City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL S-3 Por. Disp. Areas 213, 2C and 8 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, , (insert name of notary) 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 Tustin Irvine Co DDA Att 24A ATTACHMENT 24A Subordination Agmt 03.11.25 (HM) S-3 FINAL (Seal) City of Tustin/Irvine Co. Por. Disp. Areas 2B, 2C and 8 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, , (insert name of notary) 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 Tustin Irvine Co DDA Att 24A ATTACHMENT 24A Subordination Agmt 03.11.25 (HM) S-3 FINAL (Seal) City of Tustin/Irvine Co. Por. Disp. Areas 2B, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF AFFORDABLE PARCEL' THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOT 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE MATTERS SET FORTH IN SECTION 2 OF THE QUITCLAIM DEED FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 AND COVENANTS, CONDITIONS AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471 DATED OF EVEN DATE HEREWITH AND RECORDED PRIOR TO THE RECORDING HEREOF IN THE OFFICE OF THE COUNTY CLERK RECORDER FOR ORANGE COUNTY, CALIFORNIA. ' To be modified to reflect any future subdivision. Tustin Irvine Co DDA Att 24A Subordination ATTACHMENT 24A City of Tustin/Irvine Co. Agrat 03.11.25 (HM) FINAL EXHIBIT A Por. Disp. Areas 213, 2C and 8 ATTACHMENT 24B FORM OF SUBORDINATION AGREEMENT (Affiliate Leasehold Mortgage) CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The City of Tustin 300 Centennial Way Tustin, CA 92708 Attn: City Manager SPACE ABOVE THIS LINE FOR RECORDER'S USE SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of 202_ ("Effective Date"), by and between , a ("Lender"), and CITY OF TUSTIN, CALIFORNIA, a municipal corporation duly organized and existing under the laws of the State of California ("City"). RECITALS A. The City and Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Initial Developer"), entered into that certain Disposition and Development Agreement for Portions of Disposition Areas 213, 2C and 8 (Tustin Legacy), dated as of , 202_, as the same may has been and may be amended from time to time ("DDA"), with respect to certain real property referred to therein and herein as the "Development Parcels". A Memorandum of DDA was recorded against the Development Parcels in the Official Records of Orange County, California ("Official Records") on 202_ as Instrument No. ("Memorandum"). Under the DDA, and as reflected in the Memorandum, the City is entitled to a lien to secure certain amounts payable to the City, which lien is referred to in the DDA, the Memorandum, and in this Agreement as the "City Lien" (and which term as used in this Agreement shall also include any lien created pursuant to any Property Document, as that term is defined below, regardless of how designated in the Property Document). Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 1 Por. Disp. Areas 213, 2C and 8 B. City and Initial Developer entered into that certain Development Agreement, dated as of , 202. and recorded in the Official Records on , 202 as Instrument No. ("DA"). C. Pursuant to the DDA, the City has conveyed the Development Parcels to [Initial Developer/ successor in interest to Initial Developer ("Developer')]. D. [Initial Developer/Developerl has conveyed a ground lease interest in {if the Ground Lease affects all of Lot 13) [the] {if the Ground Lease affects only one of the Parcels constituting Lot 13) [a] portion of the Development Parcels known as Lot 13, legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Affordable Parcel"), to (insert name of Affordable Housing Developer) ("Borrower") by a (insert title of Ground Lease), dated , 20_ (the "Ground Lease"), a memorandum of which [is intended to be/was] recorded in the Official Records [on , 20_ as Instrument No. ]. E. The leasehold interest created by the Ground Lease in the Affordable Parcel, together with the improvements and related personal and other property described in the Security Instrument (defined herein), are referred to as the "Mortgaged Property". F. The City and [Initial Developer/Developerl have also previously executed the following documents, each of which has been recorded against the Affordable Parcel in the Official Records on , 202_ (collectively with the DA, as the same may be amended from time to time, the "Property Documents"): (1) Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement. dated as of 202_, and recorded in the Official Records as Instrument No. ; (2) Declaration of Special Restrictions, dated as of , 202_ and recorded in the Official Records as Instrument No. ; (3) Public Access Covenant, dated as of , 202_ and recorded in the Official Records as Instrument No. ; (4) Quitclaim Deed for Portions of Disposition Areas 213, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471, dated as of , 202_ and recorded in the Official Records as Instrument No. ; and (5) Landscape Installation and Maintenance Agreement, dated as of , 202 and recorded in the Official Records as Instrument No. Borrower's ground leasehold interest created under the Ground Lease in the Affordable Parcel is subject to the encumbrance of the Property Documents and the City Lien. Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 2 Por. Disp. Areas 213, 2C and 8 G. In connection with the conveyance of the Affordable Parcel to [Initial Developer/Developer], TIC Acquisition and Development LLC, a Delaware limited liability company, has executed and delivered a Guaranty to the City dated , 202_, which Guaranty has been reaffirmed by the Reaffirmation of Guaranty (Affordable Project), dated 202_. {If Developer has entered into a Joint Use Agreement as described in the DDA} [In accordance with the terms of the DDA, Initial Developer/Developer have entered into a joint Use Agreement, dated , 202_ (the "Joint Use Agreement'), which Joint Use Agreement has been recorded in the Official Records as Instrument No. H. Lender has agreed to make a loan to Borrower in the maximum principal amount of $ (the "Loan") for the design, construction, development, equipping and/or operation of the Affordable Parcel, which Loan is initially evidenced by that certain [Note], dated as of , 202_, made by Borrower payable to the order of Lender (the "Note") and that certain [Construction Loan Agreement], dated as of , 202_, between Borrower and Lender (the "Loan Agreement"). I. The Loan is secured by, among other things, that certain {insert full document title for Deed of Trust), dated as of the date hereof and executed by Borrower for the benefit of Lender ("Security Instrument"; together with the Note, the Loan Agreement, and all other documents executed in connection with the Loan, are referred to collectively as the "Loan Documents"), which Security Instrument encumbers the Mortgaged Property and was recorded in the Official Records concurrently herewith. J. Under the terms of the Ground Lease, Borrower is permitted from time to time to enter into other financing arrangements secured by up to three Permitted Leasehold Mortgages and up to two Affiliate Leasehold Mortgages (including the Security Instrument). K. As a condition to the making of the Loan, Lender requires and Borrower requests that the City and Lender execute and deliver this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and the City agree as follows: 1. DEFINITIONS. The following terms, when used in this Agreement (including, as appropriate, when used in the above recitals), shall have the following meanings. (a) "Action" has the meaning specified in Section 6(h). (b) "Affiliate Leasehold Mortgage" means a Mortgage, the Mortgagee under which is an Affiliate Leasehold Mortgagee. (c) "Affiliate Leasehold Mortgagee" means for the purposes of any Affiliate Leasehold Mortgage, a Person Controlling, Controlled by, or under common Control with Developer or Borrower. Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 3 Por. Disp. Areas 213, 2C and 8 (d) "Affordable Parcel" has the meaning specified in Recital D to this Agreement. (e) "Borrower" means all Persons identified as "Borrower" in the Recitals of this Agreement, together with their successors and assigns, and any other Person who acquires title to the Mortgaged Property after the Effective Date, provided that the term "Borrower" shall not include Lender in the event that Lender acquires title to the Mortgaged Property. (f) "Business Day" means any day other than Saturday, Sunday and each City observed legal holiday. (g) "Certificate of Compliance Date" means the date on which an "Affordable Project Certificate of Compliance" (as that term is defined in the DDA) with respect to each parcel of land constituting Lot 13 (as that term is defined in the DDA) is recorded by the City in the Official Records. (h) "City" means the Person named as such in the preamble to this Agreement. (i) "City Lien" has the meaning specified in Recital A to this Agreement. 0) "City Lien Claim" means a claim that is entitled to the benefit of the City Lien. (k) "Control" "Controlled" or "Controlling", as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current ability to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests, acting as the manager of a limited liability company, the administrative general partner of a partnership or otherwise. Notwithstanding the foregoing, the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute "Control" if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person. (1) "Costs" has the meaning specified in Section 6(h). (m) "DA" has the meaning specified in Recital B to this Agreement. (n) "DDA" has the meaning specified in Recital A to this Agreement. (o) "Decision" has the meaning specified in Section 6(h). (p) "Development Parcels" has the meaning specified in Recital A to this Agreement. Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 4 Por. Disp. Areas 213, 2C and 8 (q) "Effective Date" has the meaning specified in the preamble to this Agreement. (r) "Enforcement Action' means any of the following actions taken by or at the direction of the City: the seeking of default interest or charges, the taking of possession or control of any of the Mortgaged Property (including the fee interest therein), the commencement of any suit or other legal, or administrative proceeding based upon the Property Documents or the City Lien, or the exercise of any other remedy against Borrower, provided that the term "Enforcement Action" shall not include (1) the exercise of the Right of Repurchase or the Right of Reversion or (2) any rights or actions taken by the City in the exercise of its police powers. (s) "Foreclosure" shall mean the foreclosure of the Security Instrument (or any sale thereunder), whether by judicial proceedings, by virtue of any power of sale under the Security Instrument, by acceptance of a deed -in -lieu of foreclosure, or by any other conveyance of all or any portion of the Mortgaged Property by other appropriate proceedings in the nature of a foreclosure, resulting in the transfer of all or any portion of the Mortgaged Property to (i) Lender, (ii) any entity that Controls Lender, is Controlled by Lender, or is Controlled by an entity that also Controls Lender, (iii) any participating lender in the Loan (excluding Borrower or any Person that Controls Borrower, is Controlled by Borrower, or is Controlled by an entity that also Controls Borrower), and/or (iv) any agent or nominee for one or more of Lenders described in clauses i through iii) of this definition. (t) "Governmental Authority" and "Governmental Authorities" shall mean, respectively, each and all federal, State, county, municipal and local governmental and quasi -governmental bodies and authorities (including the United States of America, the State of California and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over Borrower, the development, construction, maintenance, leasing, and use of improvements on the Affordable Parcel. (u) "Governmental Requirements" shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines, conditions, instructions, and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or otherwise affecting Borrower, the Affordable Parcel, the improvements from time to time constructed on the Affordable Parcel, the development, construction, maintenance, leasing, and use of such improvements or any component thereof. (v) "Ground Lease" has the meaning specified in Recital D to this Agreement. (w) "Indebtedness" means "Indebtedness" as defined in the Security Instrument. {confirm this term is used in Security Instrument or define "Indebtedness" using the term used in the Security Instrument) (x) "Initial Developer" has the meaning specified in Recital A to this Agreement. Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 5 Por. Disp. Areas 213, 2C and 8 (y) {If Developer has entered into a Joint Use Agreement as described in the DDA} ["Joint Use Agreement" has the meaning specified in Recital G to this Agreement] (z) "Lender" means the entity named as such in the preamble to this Agreement which is initially the holder of the Note, and any other Person subsequently becoming the holder of the Note, as the case may be. (aa) "Loan" has the meaning specified in Recital H to this Agreement. (bb) "Loan Default" means any act, failure to act, event, condition, or occurrence which constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an "Event of Default" {or insert comparable term from Security Instrument) as defined in the Security Instrument. Agreement. (cc) "Loan Documents" has the meaning specified in Recital I to this (dd) "Memorandum" has the meaning specified in Recital A to this Agreement (ee) "Mortgage" means an indenture of mortgage or deed of trust. (ff) "Mortgagee" means any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage. (gg) "Mortgaged Property" has the meaning specified in Recital E to this Agreement. (hh) "Note" has the meaning specified in Recital I to this Agreement. (ii) "Official Records" has the meaning specified in Recital A to this Agreement. 6j) "Permitted Leasehold Mortgage" means a Mortgage held by a Permitted Leasehold Mortgagee. (kk) "Permitted Leasehold Mortgagee" means a Person approved as a "Permitted Leasehold Mortgagee" under the terms of the DDA. (11) "Person" means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, or other entity, domestic or foreign. Agreement. (mm) "Prevailing Party" has the meaning specified in Section 6(h). (nn) "Property Documents" has the meaning set forth in Recital F to this (oo) "Purchaser" has the meaning set forth in Section 5. Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 6 Por. Disp. Areas 213, 2C and 8 (pp) "Right of Repurchase" has the meaning set forth in Section 3(b). (qq) "Right of Reversion" has the meaning set forth in Section 3(b). (rr) "Security Instrument" has the meaning specified in Recital I to this Agreement. 2. AFFILIATE LEASEHOLD MORTGAGEE. The City and Lender acknowledge that Lender is an Affiliate Leasehold Mortgagee and that the Security Instrument, after it is properly recorded as an encumbrance against title to the Mortgaged Property, is an Affiliate Leasehold Mortgage. 3. SUBORDINATION. (a) Lender hereby agrees, acknowledges and confirms that the Security Instrument is subordinate to the terms, covenants, conditions, operations, and effects of each of the Property Documents and the City Lien {If Developer has entered into a Joint Use Agreement as described in the DDA}[as well as the Joint Use Agreement]. (b) Lender acknowledges that under the terms of the DDA the City is entitled under certain circumstances to reacquire title to the fee interest in the Affordable Parcel through the exercise of the City's "Right of Repurchase" and "Right of Reversion" under the DDA (which rights are referred to in this Agreement as, respectively, the "Right of Repurchase" and "Right of Reversion"). (c) The effect of the subordination of the Security Instrument under Section 3 a shall apply and continue notwithstanding (i) the actual date and time of execution, delivery, recording, filing or perfection of each of the Loan Documents and each of the Property Documents and Memorandum {If Developer has entered into a Joint Use Agreement as described in the DDA}[as well as the Joint Use Agreement], and (ii) the respective rights of Lender and the City to obtain a security interest in any collateral, including any collateral other than the Mortgaged Property. (d) The City represents and warrants to Lender as follows: (i) that as of the Effective Date, to the actual knowledge of the City Manager (without a duty of inquiry), the Property Documents are in full force and effect; (ii) that the Property Documents have not been modified or amended from the executed copies of the Property Documents delivered by the City to Lender concurrently with the Effective Date; (iii) that the City has not delivered any written notice of a default or breach under any Property Document or identifying the existence of a City Lien Claim; and (iv) that to the actual knowledge of the City Manager (without a duty of inquiry), the City has not received written notice that any event has occurred, which with the giving of notice or the passage of time, or both, would constitute a default under any Property Document or a City Lien Claim. (e) Lender represents and warrants to the City as follows: (i) that as of the Effective Date, the Loan Documents are in full force and effect; (ii) that the Loan Documents have not been modified or amended from the executed copies of the Loan Documents delivered by the City to Lender concurrently with the Effective Date; and (iii) that Lender has no knowledge of any Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 7 Por. Disp. Areas 213, 2C and 8 fact or circumstance, the continuation of which would constitute a default or breach by Borrower under any Loan Document; and (iv) Lender is not aware of any event having occurred, which, with the giving of notice or the passage of time, or both, would constitute a default under any Loan Document. (f) Within ten (10) Business Days after request by the City, but not more often than once per year (but nevertheless at any time following the occurrence and during the continuation of a default by Borrower under the Loan Documents or the Property Documents), Lender shall furnish the City with a statement, duly acknowledged and certified on behalf of Lender, confirming that there exists no default under the Loan Documents (or describing any default that does exist), certifying as to the other matters described in Section 3(e), and certifying to such other information with respect to the Loan Documents as the City may reasonably request, specifically including the amount of the Indebtedness. Lender agrees that upon the occurrence and during the continuance of any default under the Loan Documents, Lender shall provide the City, from time to time as requested by the City and within ten (10) Business Days of receipt of a request from the City, with a statement of the amount of the Indebtedness owed and the then -current balance due, and, until the Certificate of Compliance Date, shall keep the City reasonably informed of any actions that Lender intends to take to address such defaults, including the enforcement of any claims against Borrower, any guarantors of the Loan, or any other Person in connection with the Loan. (g) Lender hereby agrees that it shall provide written notice to the City when any modification of the Loan Documents is proposed to be agreed to or permitted by Lender. In addition, until the Certificate of Compliance Date, Lender agrees not to modify or agree to modify the Loan Documents (or enter into any arrangement having the same effect) without the prior written consent of the City, provided that the City shall provide specific, detailed responses should it object to any such modifications and its approval shall not be unreasonably withheld, conditioned or delayed, and provided further that it shall not be unreasonable for the City, among other things, to withhold its consent to any modification of the Loan Documents if the modifications would render the Loan Documents inconsistent with the provisions of the DDA or with the most recent "Updated Affordable Project Financing Plan" referred to in the DDA. Nothing in this Section 3(i) shall require the City's consent for the Lender to modify any schedule of performance or other date set forth in any of the Loan Documents or for the Lender to waive any provision of any of the Loan Documents. 4. DEFAULT UNDER PROPERTY DOCUMENTS, CITY LIEN CLAIM. (a) Lender shall deliver to the City a copy of any notice sent by Lender to Borrower of a Loan Default, including any alleged default sent by Lender under any agreement in the nature of an intercreditor or participation agreement, contemporaneously with sending such notice to Borrower. Failure of Lender to send notice to the City shall not subject Lender to any liability, but Lender shall not exercise Lender's rights and remedies under the Loan Documents until such notice is given to the City and the City shall have had the opportunity to cure the Loan Default as provided in this Section 4(a). Following the delivery of such notice to the City, the City shall have the right, but not the obligation, to cure (i) any monetary Loan Default that is the subject of such notice within thirty (30) and (ii) up to ninety (90) days cure any non -monetary Loan Default Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 8 Por. Disp. Areas 213, 2C and 8 that is the subject of such notice. The City shall not be subrogated to the rights of Lender under the Loan Documents by reason of the City having cured any Loan Default. However, Lender acknowledges that all amounts paid by the City to Lender to cure a Loan Default shall be secured by the City Lien. (b) Lender shall not be obligated to perform any of Borrower's obligations under the Ground Lease or otherwise to construct or complete any Improvements or to guarantee such construction or completion thereof. Notwithstanding the foregoing, if any Person acquires title to any part of the Mortgaged Property or the Improvements as a result of a Foreclosure or from Lender after the completion of a Foreclosure, then such Person or entity shall be subject to all of the Property Documents and the City Lien, provided however that such Person (A) shall not be personally liable for any act or omission of any prior ground lessee (although such Person's interest in the Mortgaged Property will continue to be subject to the effects of the Property Documents and the City Lien) or (B) bound by any amendment or modification to the Property Documents made without the Lender's prior written consent. If Lender elects to construct any Improvements on the Mortgaged Property, Lender must first acquire title to the Mortgaged Property and assume all of the obligations of Borrower under all of the Property Documents, and the Improvements so constructed may only be those Improvements that Borrower would be permitted to construct under the Ground Lease. (c) Subject to the provisions of Section 4(a) and the other terms of this Agreement, Lender may pursue all rights and remedies against Borrower available to it under the Loan Documents, at law or in equity. (d) Notwithstanding anything to the contrary in the Loan Documents, if the City consummates an Enforcement Action or acquires (or causes its designee to acquire) the fee title to the Affordable Parcel through the exercise of the Right of Repurchase or Right of Reversion, then Lender shall not exercise any of its rights or remedies under the Loan Documents that would result in any Foreclosure prior to the date that is ninety (90) days after the date the City or its designee acquires fee title to any portion of the Affordable Parcel pursuant to the Enforcement Action or the exercise the Right of Repurchase or Right of Reversion. 5. NON -DISTURBANCE. No acquisition by the City or its designee of any portion of the fee title to the Affordable Parcel, whether by exercise of the Right of Repurchase or the Right of Reversion or as the result of any Enforcement Action or otherwise, shall terminate the Ground Lease or the Security Instrument, provided that upon the City or its designee acquiring fee title to the Affordable Parcel (the City or its designee, and their successors or assigns acquiring such fee title being referred to as the "Purchaser"), if any uncured default shall then or thereafter exist under the terms of the Ground Lease, the Purchaser, upon compliance with the provisions of the immediately succeeding sentence, and upon giving any required notices set forth in the Ground Lease, shall be entitled to exercise any remedies then or thereafter available to the lessor under the Ground Lease in accordance with the terms and conditions of the Ground Lease. Lender acknowledges that upon any termination of the Ground Lease in accordance with its terms Lender will no longer have any collateral as to which the Security Instrument creates a lien, and that Lender will not in any case be entitled to a lien against the fee interest in any portion of the Affordable Parcel. Any Purchaser shall assume in writing all of the obligations of the lessor under Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 9 Por. Disp. Areas 213, 2C and 8 the Ground Lease, but the terms of such assumption shall provide that (a) the Purchaser shall not be liable for any act or omission of any prior fee owner of the Affordable Parcel, (b) the Purchaser shall not be subject to any offsets or defenses under the Ground Lease that Borrower might have against any prior fee owner of the Affordable Parcel, (c) the Purchaser shall not be bound by any amendment or modification to the Ground Lease made without the City's prior written consent, and (d) if such Purchaser is the City or its designee, the Purchaser shall not be obligated to assume the obligations of the lessor that are "Retained Obligations" under (and as defined in) the Ground Lease except with respect to maintenance of the landscaping within the Boundary Landscape Area pursuant to (and as defined in) the Landscape Agreement and maintenance of the landscaping within the Publicly Accessible Common Area pursuant to (and as defined in) the Special Restrictions (and, with respect to such obligations, shall not be obligated to cure any prior lessor default arising from the lessor's failure to perform such maintenance obligations). 6. MISCELLANEOUS PROVISIONS. (a) In the event of any conflict or inconsistency between the terms of the Property Documents and the terms of this Agreement, the terms of this Agreement shall control. (b) This Agreement shall be binding upon and shall inure to the benefit of the respective legal successors and permitted assigns of the City and the Lender. Neither the Borrower nor any other party shall be entitled to any benefits hereunder, whether as a third -party beneficiary or otherwise. (c) All notices, demands, consents, requests and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed conclusively to have been duly given (1) when hand delivered to the party for which it is intended; (2) three (3) Business Days after such notice has been sent by U.S. Postal Service via certified mail, return receipt requested, postage prepaid, and addressed to the party for which it is intended as set forth below; (3) the next Business Day after such notice has been deposited with an overnight delivery service reasonably approved by Lender and the City (Federal Express, Ovemite Express, United Parcel Service and U.S. Postal Service are deemed so approved), postage prepaid, addressed to the party to whom notice is being sent as set forth below with next -business -day delivery guaranteed, provided that the sender receives a confirmation of delivery from the delivery service provider; or (4) when transmitted if sent by email to the email address set forth below, provided that notices given by email shall not be effective unless either (i) a duplicate copy of such notice is promptly sent by any other method permitted under this Section 6(c) (provided that the recipient need not receive such duplicate copy prior to any deadline set forth herein), or (ii) the receiving party delivers a written confirmation of receipt for such notice either by email or any other method permitted under this Section 6(c). Any notice given by email shall be deemed received on the next Business Day if such notice is received after 5:00 p.m. Pacific Time or on a non -Business Day. Unless otherwise provided in writing, all notices with respect to this Agreement shall be addressed as follows: Notices intended for Lender shall be addressed to: Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 10 Por. Disp. Areas 213, 2C and 8 If to T .anrlar- With a copy to: With a copy to: With a copy to: Notices intended for the City shall be addressed to: If to the City: Tustin City Hall 300 Centennial Way Tustin, CA 92780 Attention: City Manager Email: citymanager@tustinca.org With a copy -to: City of Tustin City Attorney Woodruff Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 Attn: David E. Kendig, Esq. Email: dkendig@wss-law.com Any party, by notice given pursuant to this Section 6(c), may change the person or persons or address or addresses, or designate an additional person or persons or an additional address or addresses, for its notices, but notice of a change of address shall only be effective upon receipt. Neither party shall refuse or reject delivery of any notice given in accordance with this Section 6c. (d) Nothing herein or in any of the Loan Documents or Property Documents shall be deemed to constitute Lender as a joint venturer or partner of the City. (e) This Agreement shall be governed by the laws of the State of California, irrespective of California's choice -of -law principles. (f) The City and Lender agree to submit to personal jurisdiction in the State of California in any action or proceeding arising out of this Agreement. The City and Lender hereby agree and consent that without limiting other methods of obtaining jurisdiction, personal jurisdiction over them in any such action or proceeding may be obtained within or without the jurisdiction of any court located in California and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon the Person for which such service is intended by registered or certified mail to or by personal Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL I I Por. Disp. Areas 213, 2C and 8 service at such Person's last known address, whether such address be within or without the jurisdiction of any such court. Any legal suit, action or other proceeding arising out of or relating to this Agreement shall be instituted only in the courts of the State of California, County of Orange or the United States District Court for the Central District of California, and each of the City and Lender hereby waives any objections which it may now or hereafter have based on venue or forum non-conveniens of any such suit, action or proceeding and submits to the jurisdiction of such courts. (g) To the extent permitted by law, each of Lender and the City waives its respective rights to a trial by jury of any claim or cause of action based on, arising from, or related to or arising out of this Agreement, in any action, proceeding, or other litigation of any type brought by either against the other, whether with respect to any cause of action in law or equity. Lender and the City agree that any such claim or cause of action shall be tried by a court in a trial without a jury. Without limiting the foregoing, the City and Lender further agree that their respective right to a trial by jury is waived by operation of this Section 6(g) as to any action, claim, counter -claim, or other proceeding that seeks, in whole or in part, to challenge the validity or enforceability of this Agreement. This waiver shall apply to any future amendments, renewals, supplements, or modifications to this Agreement. (h) If either the City or Lender institutes any action, suit, counterclaim or other proceeding for any relief against the other, declaratory or otherwise (collectively, an "Action"), to enforce the terms hereof or to declare rights hereunder or with respect to any inaccuracies or material omissions in connection with any of the covenants, representations, warranties or obligations on the part of the other, then the Prevailing Party in such Action shall be entitled to have and recover of and from the other party all costs and expenses of the Action, including (1) the Prevailing Party's reasonable attorneys' fees which shall be payable at the actual contractual hourly rate for City's litigation counsel at the time the fees were incurred, and (2) costs actually incurred in bringing and prosecuting such Action and enforcing any judgment, order, ruling or award (collectively, a "Decision") granted therein, all of which shall be deemed to have accrued on the commencement of such Action and shall be paid whether or not such Action is prosecuted to a Decision. Any Decision entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including reasonable attorneys' fees and expert fees and costs (collectively, "Costs") incurred in enforcing, perfecting and executing such judgment. For the purposes of this Section 6(h), Costs shall include in addition to Costs incurred in prosecution or defense of the underlying action, reasonable attorneys' fees, costs, expenses and expert fees and costs incurred in the following: (1) post judgment motions and collection actions; (2) contempt proceedings; (3) garnishment, levy, debtor and third -party examinations; (4) discovery; (5) bankruptcy litigation; and (6) appeals of any order or judgment. "Prevailing Party" within the meaning of this Section 6(h) includes a party who agrees to dismiss an Action in consideration for the other party's payment of the amounts allegedly due or performance of the covenants allegedly breached, or a party who obtains substantially the relief sought by such party. (i) If any one or more of the provisions contained in this Agreement, or any application thereof, shall be invalid, illegal or unenforceable in any respect, the validity, legality Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 12 Por. Disp. Areas 213, 2C and 8 and enforceability of the remaining provisions contained herein, and any other application thereof, shall not in any way be affected or impaired thereby. 0) This Agreement shall terminate upon the payment of all the Indebtedness and the release of record of the Security Instrument. (k) No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. (1) References in this Agreement to "Sections" are to the sections of this Agreement unless otherwise specified. As used in this Agreement the words "include" and "including" mean, respectively, "include, without limitation" and "including, without limitation". (m) This Agreement may be amended, changed, modified, altered or terminated only by a written instrument or written instruments signed by the parties to this Agreement. (n) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. [Signature and Acknowledgement Pages to Follow] Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL 13 Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. Dated: ATTEST: Erica N. Rabe, City Clerk APPROVED AS TO FORM: LI-M David Kendig, City Attorney Hepner & Myers LLP City of Tustin Special Real Estate Counsel IN Amy E. Freilich LENDER: By: Name: Title: CITY: CITY OF TUSTIN: By: Aldo E. Schindler, City Manager Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL S-1 Por. Disp. Areas 213, 2C and 8 CONSENT OF BORROWER Borrower hereby acknowledges receipt of a copy of this Subordination Agreement, dated as of , 20_9 by and between and The City of Tustin and consents to the agreement of the parties set forth herein. {INSERT BORROWER ENTITY) M. Date: Name: Title: Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL S-2 Por. Disp. Areas 213, 2C and 8 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, (insert name of notary) 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 (Seal) Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agrat 03.11.25 (HM) FINAL S-3 Por. Disp. Areas 213, 2C and 8 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, (insert name of notary) 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 (Seal) Tustin Irvine Co DDA Att 24B ATTACHMENT 24B City of Tustin/Irvine Co. Subordination Agrat 03.11.25 (HM) S_3 Por. Disp. Areas 213, 2C and 8 FINAL ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, (insert name of notary) 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 (Seal) Tustin Irvine Co DDA Att 24B ATTACHMENT 24B City of Tustin/Irvine Co. Subordination Agrat 03.11.25 (HM) S_3 Por. Disp. Areas 213, 2C and 8 FINAL EXHIBIT A LEGAL DESCRIPTION OF AFFORDABLE PARCEL' THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOT 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE MATTERS SET FORTH IN SECTION 2 OF THE QUITCLAIM DEED FOR PORTIONS OF DISPOSITION AREAS 2B, 2C AND 8 AND COVENANTS, CONDITIONS AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471 DATED OF EVEN DATE HEREWITH AND RECORDED PRIOR TO THE RECORDING HEREOF IN THE OFFICE OF THE COUNTY CLERK RECORDER FOR ORANGE COUNTY, CALIFORNIA. ' To be modified to reflect any future subdivision. Tustin Irvine Co DDA Att 24B Subordination ATTACHMENT 24B City of Tustin/Irvine Co. Agmt 03.11.25 (HM) FINAL EXHIBIT A Por. Disp. Areas 213, 2C and 8 ATTACHMENT 25 DECLARATION OF AFFORDABLE HOUSING RESTRICTIVE COVENANTS AND REGULATORY AGREEMENT CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE SECTION 6103 AND SECTION 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: City Clerk [SPACE ABOVE LINE FOR RECORDER'S USE ONLY] DECLARATION OF AFFORDABLE HOUSING RESTRICTIVE COVENANTS AND REGULATORY AGREEMENT THIS DECLARATION OF AFFORDABLE HOUSING RESTRICTIVE COVENANTS AND REGULATORY AGREEMENT ("Declaration") is made and entered into as of , 20_, by and between the TUSTIN HOUSING AUTHORITY, a California housing authority ("Authority") and the CITY OF TUSTIN, a municipal corporation and public body corporate and politic of the State of California (together with any successor of City, "City"; and the City together with the Authority sometimes collectively referred to as "Tustin"). All capitalized terms set forth in this Declaration that are not otherwise defined below have the meanings set forth in the Glossary of Defined Terms in Exhibit B. RECITALS A. The City and Tustin Legacy Acquisition LLC, a Delaware limited liability company ("Initial Owner") have entered into that certain Tustin Legacy Disposition and Development Agreement for Portions of Disposition Areas 2B, 2C and 8 (Tustin Legacy), dated as of , 20_ ("DDA"), a Memorandum of which was recorded in the official records of the Orange County Recorder's Office ("Official Records") substantially concurrently with the recording of this Declaration. The real property that is the subject of the DDA and this Declaration is approximately 19.4 acres of land comprising Lot 11, Lot 12 and Lot 13 of Tract No. 18197, in the City of Tustin, County of Orange, California ("Real Property"). Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 1 /Irvine Co. Por. Disp. Areas 213, 2C and 8 B. The DDA establishes the process by which the City intends to convey to Initial Owner the Property (defined below) including a fee interest in the Real Property immediately following the recording of this Declaration in the Official Records. The DDA obligates the Initial Owner, upon acquisition of the Property, to develop a multifamily rental housing project including the market rate and Lower Income Housing Units described in this Declaration. C. On February 3, 2003, the City adopted an ordinance approving the Marine Corps Air Station -Tustin Specific Plan/Reuse Plan, setting forth the zoning and entitlement framework for future development of the former Marine Corps Air Station, Tustin ("Tustin Legacy"), including the Real Property. Since its initial adoption, the City has approved numerous Specific Plan Amendments. All references in this Declaration to the "Specific Plan" shall be deemed to refer to the MCAS Tustin Specific Plan/Reuse Plan, as amended and as the same may be further amended from time to time. D. Pursuant to the Specific Plan and City Ordinance No. , City Council Resolution No. CC and Planning Commission Resolutions No. and , the City has approved the following entitlements for the Real Property ("Entitlements"): (i) Design Review approval (Design Review application ); (ii) the Vesting Tentative Tract Map No. 19353 for the Real Property approved pursuant to the Subdivision Map Act and the City Code; (iii) a statutory development agreement between the City and Initial Owner dated and recorded in the Official Records on as Instrument No. ("Development Agreement"); (iv) the density bonus application, density bonus exceptions and related concessions and incentives authorized under Tustin City Code Section 9123 related to the provision of affordable housing units in compliance with Govt. Code Section 54220-54234 and 65915, and (v) any other approvals to the extent required by the City Code to permit the uses contemplated by the Market Rate Project or the Affordable Project. Resolution No. CC , concurrently adopted by the City, requires a housing incentive agreement pursuant to City Code Section 9142 to ensure implementation of the Affordable Housing Requirements of the Specific Plan, the City's Density Bonus Ordinance, compliance with California Health and Safety Code Section 33413(b)(2), and that all dwelling units constructed on the Affordable Parcel (defined below) remain as rental apartments for the Term of this Declaration ("Housing Incentive Agreement"). E. The development envelope, dwelling unit count, concessions and restrictions authorized by the DDA and the Entitlements for the Real Property were determined based on the following facts and the application of the Density Bonus Laws (defined below): (1) Government Code Sections 65915 to 65918 ("Density Bonus Statute") and the Tustin City Code ("City Code") Article 9, Chapter I ("Density Bonus Ordinance" and collectively with the Density Bonus Statue, "Density Bonus Laws") provide certain density bonuses and other concessions and waivers to applicants restricting a portion of the base unit count as affordable housing. City Code Section 9122 requires that the City grant a density bonus of up to fifty percent (50%) ("Mandatory Density Bonus") when an applicant proposes to restrict a minimum of twenty-four percent (24%) of the base unit count permitted as Lower Income Units and an additional "stackable" density bonus of up to thirty-eight point seventy-five percent (38.75%) when an applicant proposes to restrict a minimum of ten percent (10%) of the base unit Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 2 /Irvine Co. Por. Disp. Areas 213, 2C and 8 count as Very Low Income Units for a total of eighty-eight point seventy-five percent (88.75%) density bonus units and City Code Section 9123 provides that a proposed development that exceeds that percentage is entitled to three (3) concessions or incentives unless otherwise determined by the City pursuant to the Density Bonus Ordinance. (2) Prior to calculation of density bonuses under the Density Bonus Laws, the maximum residential density that is to be constructed collectively on the Real Property is 708 base units. (3) Pursuant to the applications for Entitlements submitted by Initial Owner and processed by the City, Initial Owner has proposed to construct a maximum of 4 unrestricted manager/staff dwelling units and 334 Lower Income dwelling units on the Affordable Parcel comprising approximately forty-seven percent (47%) of the base dwelling units, thus exceeding the percentage of Lower Income Units required to obtain the maximum Mandatory Density Bonus and three concessions or incentives under the City Code. (4) Applying the maximum Mandatory Density Bonus and as further set forth in the Entitlements, density bonus dwelling units are allocated to Lot 11 and Lot 12 allowing a maximum of 1,002 market rate dwelling units that may be constructed on Lot 11 and Lot 12 provided that at least the minimum number of Lower Income Units are constructed on the Affordable Parcel, in each case, upon the terms and conditions set forth in the DDA. The Lower Income Units are to be operated in accordance with this Declaration during the term of this Declaration. In total, after application of the Density Bonus Laws, a maximum of 628 additional dwelling units may be constructed on the Real Property if 334 Lower Income Units are constructed on the Affordable Parcel, such that, on a combined basis, the Parcels may contain an aggregate maximum of 1,336 total dwelling units and the development includes certain concessions and/or waivers by the City. NOW, THEREFORE, Tustin hereby covenants and declares that this Declaration is made pursuant to and in accordance with the Density Bonus Laws, the provisions of this Declaration comply with the Specific Plan, the Density Bonus Ordinance, California Government Code Section 65915, and California Health and Safety Code Sections 33334.3, 33413(b) and 33334.14, this Declaration comprises the Housing Incentive Agreement required by Tustin as described in Recital D and complies with the requirements of City Code Section 9142, and accordingly, and for the purpose of assuring development, maintenance, management, leasing and use of the Real Property in accordance with the requirements of the Specific Plan, Entitlements, and the Density Bonus Laws, the Real Property is now held and shall hereafter be held, transferred, conveyed, sold, leased, subleased, encumbered, mortgaged, used, occupied and improved subject to the covenants, conditions and restrictions herein set forth, each and all of which is and are for, and shall inure to the benefit of and pass with, the Real Property and every portion of or interest in the Real Property and the Improvements thereon and shall apply to each Owner and to each Ground Lessee with respect to a Ground Lease then in effect to the extent set forth herein, and the covenants, conditions and restrictions set forth in the Declaration shall run with the Real Property, shall inure to the benefit of Tustin and its Governmental Successors and shall burden and be binding upon the Real Property and Owner and each and every Person claiming by, through or under any Owner, including each and every Successor Owner, each Ground Lessee and Successor Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 3 /Irvine Co. Por. Disp. Areas 213, 2C and 8 Ground Lessee and only where specified below, each End User, and where not otherwise specified, excluding any End Users. Tustin hereby further declares as follows: 1. Effect of Declaration; Affected Property. 1.1. Effect of Declaration. To the specific extent, and subject to the limitations, more specifically set forth below, Owner and all Persons claiming by, through or under such Owner, including each Ground Lessee, Successor Ground Lessee and End User, shall be subject to and shall comply with the Restrictions (defined below) set forth in this Declaration. This Declaration and all and each of the provisions of this Declaration shall become effective upon recordation in the Official Records and shall remain in full force and effect thereafter except as expressly provided herein. The provisions of this Declaration are intended to survive any close of escrow and the expiration or termination of the DDA and the Development Agreement and shall not merge with any deed. 1.2. Property Affected by this Declaration. The "Property" consists of the Real Property referenced above and as set forth in Exhibit A, together with (i) all existing improvements, if any, located on the Real Property as of the date of conveyance to Initial Owner pursuant to the Quitclaim Deed; (ii) all appurtenances pertaining to the Real Property or such improvements; (iii) all permits, licenses, approvals and authorizations issued by any Governmental Authority for development of the Project prior to the recording in the Official Records of the Quitclaim Deed; and (iv) the right to construct a maximum of 1,336 Residential Units (consisting of 708 base units and 628 density bonus units) on the Real Property as further described in the Quitclaim Deed, and City's rights in the intangible property, all as further described in the Quitclaim Deed. 1.3. Restrictions on Use. Tustin hereby declares that it has executed and recorded this Declaration against the Real Property to set forth the obligations of each and every Owner of the Real Property or any portion thereof regarding the Restrictions and to cause said Restrictions to run with the land for the benefit of Tustin for the Term set forth in this Declaration in accordance with Section 9.1. Accordingly, during the Term, and except as specifically authorized by this Declaration or approved by the City in its sole discretion, each Owner must comply with this Declaration with respect to the construction, leasing, subleasing, Transfer, and management of any Improvements or use of the portion of the Real Property and/or Improvements owned or leased by such Owner. 1.4. Ground Lease of Affordable Parcel. Notwithstanding anything in this Declaration to the contrary, so long as there is a Ground Lease in effect, each Ground Lessee with respect to an Affordable Parcel shall be responsible during the term of its Ground Lease to perform all obligations and assume all liabilities of Owner under this Declaration with respect to the Affordable Parcel owned by such Owner and the Improvements thereon as though the Ground Lessee were the Owner of such Affordable Parcel and each Ground Lessee shall have all of the rights and remedies of Owner with respect thereto pursuant to this Declaration with respect to the Affordable Parcel, and after the recording of an Affordable Certificate of Compliance with respect Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 4 /Irvine Co. Por. Disp. Areas 213, 2C and 8 to such Affordable Parcel, the City will look solely to the Ground Lessee of such Affordable Parcel (and not the Owner of such Affordable Parcel) with respect to such obligations and liabilities of Owner during the term of such Ground Lease. 2. Restrictions on Use. The development, use, conveyance, Transfer, leasing, subleasing, maintenance, repair and replacement of the Improvements shall be subject to all obligations, covenants, agreements and indemnities set forth herein (collectively referred to herein as the "Restrictions"). 3. Local, State and Federal Law. Each Owner shall carry out the construction described and all other terms and conditions in this Declaration in connection with its Parcel in conformity with the City Code, the Specific Plan, the Entitlements and all applicable Governmental Requirements. 4. Additional Covenants. 4.1. Construction of Lower Income Units and Manager Units; No Other Uses. Owner shall concurrently construct the required number of Lower Income Units and a maximum of four (4) managerial units on the Affordable Parcel unless a recorded subdivision map provides for the subdivision of the Affordable Parcel into two Parcels, in which case, the Affordable Parcel may, if authorized by the DDA, be developed separately on any Parcel created pursuant to the final subdivision map and pursuant to the phasing plan authorized by the DDA. The required Lower Income Units shall be rented to, occupied by, or held available only for rental to Qualified Households at an Affordable Rent subject to the occupancy restrictions contained in this Section 4. 4.2. Development Plan; Location, Unit Size and Mix of Lower Income Units. During the Qualified Period, all Lower Income Units shall be located in two buildings on the Affordable Parcel in a manner consistent with the requirements of IRC Section 42 and the TCAC Procedures. Prior to and as a condition to issuance of a building permit for and commencement of construction of any building on any Affordable Parcel: (a) the applicable Owner shall submit for review and approval by the Program Administrator a unit mix plan for the relevant Affordable Parcel that shall establish the unit size and bedroom mix of Lower Income Units to be constructed in such building, together with a proposed schedule for completion and occupancy of the targeted units and (b) upon approval by Program Administrator of the unit mix plan for each applicable building, Owner shall execute and record in the Official Records a certificate in the form and substance of the certificate attached hereto as Exhibit E ("Unit Requirements Certificate") applicable to such building and shall provide evidence of such recording to the City. Program Administrator's approval rights under this Section are limited to confirming the unit mix plan complies with the terms of this Declaration and Approved Plans. 4.3. Limitations on Tenants and Occupancy of Lower Income Units. Owner and each and every Person claiming by, through or under such Owner, including each Ground Lessee and Successor Ground Lessee (if any), shall cause Lower Income Units to be rented to Qualified Households and in accordance with the following terms: 4.3.1. Rent May Not Exceed Affordable Rent. Owner may not charge or Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 5 /Irvine Co. Por. Disp. Areas 213, 2C and 8 collect any Rent Consideration for a Lower Income Unit in excess of an Affordable Rent for such Lower Income Unit. 4.3.2. Occupancy. To the fullest extent allowed by law, only one Qualified Household shall be permitted to occupy and reside in a Lower Income Unit at any one time. The Lower Income Unit shall be used as the principal residence of at least one (1) adult member of the Qualified Household during the term of any lease and for no other purpose. The lease for a Lower Income Unit may allow a Qualified Household to have a Home Office so long as the Lower Income Unit is the Qualified Household's principal residence. To the fullest extent allowed by law, neither Owner nor a Qualified Household may lease, sublease, or grant a license or any other right to any other persons to occupy the Lower Income Unit, or permit persons who are not members of the one Qualified Household to occupy the Lower Income Unit. 4.3.3. Persons Occupying. The number of persons permitted to occupy the Lower Income Unit shall not exceed the occupancy permitted by law or the following maximum occupancy, whichever is more restrictive, but subject in all events to the requirements of applicable law: two persons per bedroom plus one person (i.e., for 1-bedroom units, no more than 3 occupants; for 2-bedroom units, no more than 5 occupants, and for 3-bedroom units, no more than 7 occupants. 4.3.4. Basis for Selection of New Qualified Households. If multiple households apply to Owner to occupy a vacant Lower Income Unit, and if such prospective tenants are all Qualified Households, then Owner shall lease the Lower Income Unit to one such Qualified Household on a first -come, first -priority basis, which shall be determined by the waiting list maintained by Owner following the process set forth in Section 4.3.7. 4.3.5. Failure to Lease, Notification to City. Owner shall notify the Program Administrator of any Lower Income Unit that fails to be leased to a Qualified Household within one hundred twenty (120) calendar days after the issuance of a certificate of occupancy ("Initial Leasing Period"), 4.3.6. Interest List. During the Initial Leasing Period, Owner shall create and maintain an "interest list" which includes all those potential tenants who have expressed an interest in leasing a Lower Income Unit and, to the extent then verified by Owner, who are Qualified Households. The interest list shall be maintained with an order of priority based on a first -come, first -priority basis. 4.3.7. Continuation of Occupancy. Each Qualified Household which occupies a Lower Income Unit at the expiration of the Qualified Period and who remains a Qualified Household for the Lower Income Unit it occupies on such date and otherwise complies with all of its lease obligations shall be permitted to continue to occupy such unit for a period of one (1) year, beginning on the first day after the expiration of the Qualified Period; provided that the annual rent increase during such one (1) year period shall not exceed an amount allowed under applicable law. Except for the continued right of occupancy as provided in the preceding sentence, upon the expiration of the Qualified Period, the Lower Income Units shall no longer be subject to any other provisions of this Declaration. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 6 /Irvine Co. Por. Disp. Areas 213, 2C and 8 4.3.8. Written Notice of Rent Increase. Owner shall deliver written notice to all occupants of the Lower Income Units stating each rent increase and stating that such rent increase has been made pursuant to all applicable Governmental Requirements, including, if applicable, any applicable TCAC Procedures. 4.3.9. Determination Prior to Lease. Prior to entering into a lease with a tenant for a Lower Income Unit, Owner shall first determine that such tenant is a Qualified Household in accordance with Section 4.9. 4.3.10. Voucher Holders. Owner shall not refuse to lease a Lower Income Unit to a Qualified Household if such Qualified Household is a holder of a certificate or voucher under 24 CFR Part 982 Section 8 Rental Certificate Program or Section 8 Rental Voucher Program or to the holder of a comparable document evidencing participation in a tenant -based assistance program, solely because of the status of the Qualified Household as a holder of such certificate of family participation, rental voucher, or comparable tenant -based assistance document. 4.3.11. Vacancies. Following issuance of a certificate of occupancy for any building containing Lower Income Units, Owner shall use its commercially reasonable efforts to fill with a Qualified Household each vacancy in a Lower Income Unit as soon as possible following the date that such Lower Income Unit becomes vacant so that at all times after occupancy there are Qualified Households occupying all of the Total Lower Income Units on the Affordable Parcel. The Lower Income Units may change their type from time to time (such as a Very Low Income Unit becoming a Low Income Unit) in accordance with this Declaration. Owner is not required to maintain a particular Lower Income Unit in a particular location at the Real Property at all times. However, Owner shall use its commercially reasonable efforts to lease vacant Lower Income Units so that the number, income level, and number of bedrooms in all of the Lower Income Units at the Real Property most closely match the requirements in the Unit Requirements Certificate. 4.4. Rental Rates and Changes to Rent. 4.4.1. Maximum Monthly Affordable Rent. Each Lower Income Unit shall be leased to a Qualified Household for monthly Rent Consideration in an amount not to exceed the applicable Maximum Monthly Affordable Rent for such Lower Income Unit, calculated in accordance with the definition for Maximum Monthly Affordable Rent in Exhibit B and as described in this Section 4.4. The Maximum Monthly Affordable Rent for each Lower Income Unit shall initially be calculated as set forth in this Section, and shall be determined thereafter when new income limits are published. Owner shall deliver to the Program Administrator their proposed list of Maximum Monthly Affordable Rent for each Lower Income Unit ("Proposed List") no later than the Outside Rent Calculation Date. The "Outside Rent Calculation Date" for each calendar year means the date that is sixty (60) calendar days after the date on which the California Department of Housing and Community Development ("HCD") or TCAC (to the extent applicable pursuant to Health and Safety Code Section 50053(b)(2)) publishes its Income Limits for California counties ("Annual List") during such calendar year. The Program Administrator shall have thirty (30) calendar days after receipt of the Proposed List to approve the Proposed List or to provide Owner with suggested corrections to the Proposed List so that the Proposed List will Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 7 /Irvine Co. Por. Disp. Areas 213, 2C and 8 comply with the Maximum Monthly Affordable Rents permitted under this Declaration. Owner shall modify the Proposed List as necessary to comply with this Declaration and resubmit the same to the Program Administrator for approval to address any corrections required to comply with this Declaration. If the Program Administrator fails to approve or provide corrections to a Proposed List within thirty (30) calendar days after receipt of the same, then the Proposed List shall be deemed to be approved on the thirty-first day after receipt by the Program Administrator; but only to the extent the Proposed List otherwise complies with the Maximum Monthly Affordable Rents that would be permitted under this Declaration (the approved, or deemed approved, list being referred to herein as the "Approved List"). Owner shall not charge Rent Consideration for a Lower Income Unit that exceeds the applicable Maximum Monthly Affordable Rent for such Lower Income Unit set forth on the most recently approved (or deemed approved) Proposed List. The Maximum Monthly Affordable Rents for Lower Income Units shall comply with the applicable subsection of Health and Safety Code Section 50053(b)(1) as modified by Section 50053(b)(2), or amendments thereto ("HSC Rents"). HSC Rents are calculated using the Orange County Median Income. 4.4.2. Adjustments to Rent. Owner shall, in accordance with Section 4.9, re-examine the income of each Qualified Household that is a tenant living in a Lower Income Unit at least annually to confirm that such tenant household remains a Qualified Household pursuant to tenant income certification obtained in accordance with TCAC Procedures. The Maximum Monthly Affordable Rent shall be recalculated by Owner and reviewed and approved by the Program Administrator annually pursuant to the terms of Section 4.4.1 above, and may change as changes in the income limits, or the monthly allowance for utilities and services warrant and shall be set forth in the Approved List. Owner shall not impose on a tenant an increase in rent if that increase is not permitted to be imposed under the lease between Owner and the tenant. Owner shall provide not less than thirty (30) calendar days prior written notice to affected tenants before implementing any increase in rents. In establishing Maximum Monthly Affordable Rent for each Qualified Household in a Lower Income Unit, Owner shall not exceed the rental amounts specified on the then -current Approved List. 4.5. Maximum Monthly Affordable Rents. Notwithstanding the other provisions of this Section 4, the Maximum Monthly Affordable Rent for each Lower Income Unit shall not be less than the Maximum Monthly Affordable Rent for such Lower Income Unit that Owner would have been permitted to charge for such Lower Income Unit on the date of this Declaration, assuming that such Lower Income Unit was occupied by a Qualified Household of a family size appropriate to the unit, which shall mean two persons in a one -bedroom unit, three persons in a two -bedroom unit, and four persons in a three -bedroom unit in such Lower Income Unit consistent with the requirements of Health & Safety Code Section 50052.5(h) or as otherwise allowed by TCAC Procedures. The Maximum Monthly Affordable Rent shall be as set forth in Exhibit F. 4.6. Utility Allowances. The Program Administrator shall annually provide Owner with a schedule establishing the monthly allowances for utilities and services as published by the Orange County Community Resources/ Orange County Housing Authority or their equivalent unless Owner has elected to establish utility allowances in accordance with the California Utility Allowance Calculator as published by TCAC. Owner is to deduct the appropriate Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 8 /Irvine Co. Por. Disp. Areas 213, 2C and 8 utility allowances that the Qualified Household is responsible for from the maximum rent the Owner can charge as established on the then -current Approved List. 4.7. Increases in Tenant Income. 4.7.1. Over -Income Very Low Income Units. If, as a result of the annual re-examination of incomes required pursuant to Section 4.9.5, Owner determines that a household occupying a Very Low Income Unit or a Low Income Units has income that exceeds one hundred percent (100%) of the then applicable income limit for such Unit, but does not exceed one hundred forty percent (140%) of the then applicable income limit for such Unit, then the dwelling unit occupied by such household shall continue to be treated as a Very Low Income Unit or a Low Income Units, as applicable. If, as a result of the annual verification of incomes required pursuant to Section 4.9.5, Owner determines that a household occupying a Very Low Income Unit or a Low Income Unit has Income that exceeds one hundred forty percent (140%) of the then applicable income limit for such Unit, then such Unit shall be an "Over -Income Unit". An Over -Income Unit shall be deemed to be a Lower Income Unit but no longer remain a Very Low Income Unit due to the actual Income for such household at the time of the Income Verification. In such event, Owner shall lease the next available Lower Income Unit (regardless of its previous characterization) to a Qualified Household that is a Very Low Income Household if the Over - Income Unit was previously a Very Low Income Unit. As an example of the foregoing and not in limitation thereof, if a tenant is a Very Low Income Household when such tenant first leased a Very Low Income Unit, and such tenant subsequently provides an Income Verification that exceeds one hundred forth (140%) of the then applicable income limit for a Very Low Income Unit, then the Lower Income Unit occupied by such tenant shall be deemed to be a Low Income Unit until the next Income Verification is required. 4.7.2. Over -Income Low Income Units. If, as a result of the annual re- examination of incomes required pursuant to Section 4.9.5, Owner determines that a household occupying a Low Income Unit has income that exceeds one hundred forty percent (140%) of the then applicable income limit for such Unit, then the dwelling unit occupied by such household shall remain a Lower Income Unit until the next annual Income Verification. 4.7.3. Vacant Units. At all times, Owner shall attempt to lease vacant Lower Income Units on any Affordable Parcel so that the number, income level, and number of bedrooms in all of the Lower Income Units most closely match the requirements set forth in the recorded Unit Requirements Certificate for that Affordable Parcel. Notwithstanding anything in this Section 4.7 to the contrary, at all times during the Qualifying Period, there shall never be fewer than the Total Lower Income Units on the Affordable Parcel rented to (or available for rent to) Qualified Households in accordance with the requirements of this Section 4. A vacant Lower Income Unit will continue to be treated as a Lower Income Unit provided that reasonable attempts are made to rent the dwelling unit. 4.7.4. Allocation of Units. Notwithstanding the foregoing provisions, it is the intent of this Declaration that all of the Lower Income Units shall be allocated among the applicable levels of affordability and unit mix as provided in the Unit Requirements Certificate. In the event the application of the provisions in this Section 4 result in an allocation of Lower Income Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 9 /Irvine Co. Por. Disp. Areas 213, 2C and 8 Units different from that provided in the Unit Requirements Certificate, Owner shall lease the next available Lower Income Unit to a Qualified Household (whether Low Income Household or Very Low Income Household, as the case may be) to correct the allocation. 4.8. Rental Agreements for Lower Income Units. 4.8.1. Rental Agreement. 4.8.1.1. The rental agreement for a Lower Income Unit must be for an initial term of not less than twelve (12) months unless the Program Administrator provides prior written approval. 4.8.1.2. The rental agreement for a Lower Income Unit shall prohibit the tenant from subleasing or licensing the premises and, to the fullest extent allowed by law, IRC Section 42 and applicable TCAC Procedures shall prohibit the tenant from allowing any persons who are not members of the Qualified Household that is the tenant from occupying the unit and from exceeding the occupancy limitations set forth in this Declaration. 4.8.1.3. To the extent permitted by law (including, without limitation, California Civil Code Section 1954) and applicable TCAC Procedures, the rental agreement for a Lower Income Unit shall include the right of Tustin to inspect the interior of any Lower Income Unit two times per year during normal business hours with reasonable prior written notice of not less than forty-eight (48) hours. 4.8.2. Tenant Protections. The rental agreement for a Lower Income Unit may not contain any of the following provisions: 4.8.2.1. Any agreement by the tenant to admit guilt or to admit a judgment in favor of Owner in a lawsuit brought in connection with the lease. 4.8.2.2. Any agreement by the tenant that Owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the Unit after the tenant has moved out of the Unit. Owner may dispose of such personal property in accordance with applicable state law. 4.8.2.3. Any agreement by the tenant not to hold Owner or its agents legally responsible for any action or failure to act by Owner or its agent, whether intentional or negligent. 4.8.2.4. Any agreement of the tenant that Owner may evict the tenant or household members without notice to the tenant. 4.8.2.5. Any agreement by the tenant that Owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 10 /Irvine Co. Por. Disp. Areas 213, 2C and 8 4.8.2.6. Any agreement by the tenant to waive any right to a trial by jury. 4.8.2.7. Any agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease. 4.8.2.8. Any agreement by the tenant to pay attorney's fees or other legal costs in a court proceeding by Owner against the tenant. The tenant, however, may be obligated to pay court costs if the landlord is the prevailing party. Notwithstanding the foregoing, Owner may require the tenant to resolve disputes in arbitration under the Federal Arbitration Act. 4.8.3. Termination of Tenancy. Owner may not terminate the tenancy or refuse to renew the lease of a Qualified Household except for violation of the terms and conditions of the lease; for violation of applicable federal, state, or local law; or for other good cause as established by state and local laws. Any termination or refusal to renew must be preceded (by not less than three (3) calendar days, or such longer amount of time to the extent required by this Declaration or law) by Owner's service upon the tenant of a written notice specifying the grounds for the action. 4.9. Qualified Households; Records and Reports. 4.9.1. Certificate Regarding Affordability Commencement Date. Within thirty (30) calendar days after the Affordability Commencement Date has occurred with respect to the Affordable Parcel, Owner shall execute and deliver to the Program Administrator a copy of a certificate in the form and substance of the certificate attached to this Declaration as Exhibit D ("Qualified Period Certificate") identifying the Affordability Commencement Date and the last day of the Qualified Period. The City shall record a copy of such certificate against title to the Real Property in the Official Records. Failure of Owner to timely execute and deliver the Qualified Period Certificate after applicable notice and cure periods shall be a default by Owner. 4.9.2. Initial and Annual Verification of Income. Prior to considering a household as a tenant for a Lower Income Unit, Owner shall obtain from the applicant a complete verification of income qualification, on a form that contains all of the information required by IRC Section 42 and the TCAC Procedures (to the extent applicable to the Affordable Parcel) or in some other manner reasonably approved in writing by the Program Administrator ("Verification of Income"). Prior to the renewal or extension of the term of any lease for a Lower Income Unit, Owner shall obtain from the Qualified Household a current Verification of Income. So long as the Verification of Income is performed prior to the renewal or extension of the term of any lease, if Owner complies with the income verification procedures established by TCAC from time to time as contained in California Code of Regulations, Title 4, Division 17, Chapter 1, as amended from time to time, and as set forth on the website (http://www.treasurer.ca.gov/ctcac/compliance.asp), or any successor website or other published set of procedures, as may exist from time to time (collectively, "TCAC Procedures"), then Owner's compliance with the TCAC Procedures shall be deemed to be compliance with the requirements in this Section 4.9.2. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 11 /Irvine Co. Por. Disp. Areas 213, 2C and 8 4.9.3. Procedure. Owner shall make a diligent and good -faith effort to verify that the information provided by an applicant in the Verification of Income is accurate by taking the following steps, as a part of the verification process: (a) copy of driver's license or government issued identification card for all adult household members; (b) obtain pay stubs for the most recent one -month period; (c) obtain income W-2 Wage and Earning Statements, 1099's and other statements of income, as applicable, and tax returns for the most recent tax year; (d) obtain any other information or documents that may then be required under IRC Section 42 and/or the TCAC Procedures to the extent applicable to determine a Qualified Household. In the alternative, if approved by the Program Administrator, the following may be submitted (i) proof of residency (unless requiring proof of legal residency is prohibited by law) and (ii) either (a) income verification from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (b) if the applicant is unemployed, does not have income tax returns or is otherwise unable to provide other forms of verification as required above, obtain another form of independent verification satisfactory to the Program Administrator. So long as Owner obtains proof of legal residency as part of the Income Verification, then Owner's additional compliance with the TCAC Procedures shall be deemed to be compliance with the requirements in this Section 4.9.3; provided that if requiring proof of legal residency is prohibited by law, then Owner's compliance with the TCAC Procedures alone shall be deemed to be compliance with the requirements in this Section 4.9.3. 4.9.4. Qualified Household. A "Qualified Household" is any household of persons that has completed the Verification of Income qualification and for which Owner, in good -faith pursuant to Section 4.9.3, has confirmed that such household is a Lower Income Household, calculated using the definition of Income set forth in Exhibit B. 4.9.5. Files. Owner shall obtain, complete and maintain on file Verifications of Income qualification, from each Qualified Household that executes a lease for a Lower Income Unit, including (a) a Verification of Income dated within thirty (30) calendar days prior to the date of initial occupancy by such Qualified Household and (b) thereafter, annual Verifications of Income which must be dated within thirty (30) calendar days of the annual renewal of their lease, or such other date as may be mutually agreed upon by the Program Administrator and Owner. Annual Verifications of Income shall be obtained by Owner for each tenant occupying a Lower Income Unit not less than once in every twelve-month period following such Qualified Tenant's occupancy of a Lower Income Unit. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 12 /Irvine Co. Por. Disp. Areas 213, 2C and 8 4.9.6. Certificate of Continuing Program Compliance. The Certificate of Continuing Program Compliance, in the form provided by Program Administrator or otherwise approved by Program Administrator, along with copies of the most recent Verification of Income forms for ten percent (10%) of the Lower Income Units occupied by Qualified Households is to be filed with the Program Administrator (subject to confidentiality and privacy restrictions in accordance with applicable law) in the month in which the Affordability Commencement Date has occurred. During the Initial Leasing Period, the Program Administrator may request to review additional Verification of Income forms. After the Affordability Commencement Date, the Certificate of Continuing Program Compliance, along with copies of the most recent Verification of Income forms for five percent (5%) of the Lower Income Units occupied by Qualified Households, shall be delivered by Owner to the Program Administrator no later than July 1 of each calendar year during the Qualified Period. 4.9.7. Records. Owner will maintain complete and accurate records pertaining to the Lower Income Units and will permit (during normal business hours on reasonable prior written notice) any duly authorized representative of Tustin to inspect the books and records of Owner pertaining to any of the following: (a) the occupancy of the Lower Income Units; and (b) the Verification of Income. 4.9.8. Contents of Certificate. Owner will prepare and submit to the Program Administrator no later than July 1 of each calendar year during the Qualified Period, a Certificate of Continuing Program Compliance executed by Owner with the following information: 4.9.8.1. A written occupancy summary listing the number of the dwelling units on the Affordable Parcel that were occupied by Qualified Households during such period and such other tenant information as may be reasonably required as stated on the form of the Certificate of Continuing Program Compliance acceptable to the Program Administrator; 4.9.8.2. A statement that either (a) no uncured default has occurred under this Declaration or (b) a default has occurred; in which event the Certificate shall describe the nature of the default in detail and set forth the measures being taken by Owner to remedy such default; and 4.9.8.3. Copies of the most recent Verification of Income forms from five percent (5%) of the Qualified Households 4.9.9. Lease Provisions. Each lease or rental agreement for a Lower Income Unit shall contain a provision to the effect that Owner has relied on the Verification of Income and supporting information supplied by the tenant in determining qualification for occupancy of the particular Lower Income Unit and that any material misstatement in such verification (whether or not intentional) will be good cause for termination of such lease or rental agreement. Each such lease or rental agreement shall also provide that the tenant's income is subject to annual verification in accordance with this Section 4.9. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 13 /Irvine Co. Por. Disp. Areas 213, 2C and 8 4.10. Termination of Declaration. This Declaration shall terminate as to (a) Lot 11 and the Owner of Lot 11 shall be released from its obligation under this Declaration upon the execution and recording by the City of an Affordable Project Certificate of Compliance for the Affordable Parcel that includes Building 5 and (b) Lot 12 and the Owner of Lot 12 shall be released from the obligations of this Declaration upon execution and recording by the City of the Affordable Project Certificate of Compliance that includes Building 6, and such release shall in each case include without limitation, release from the obligation to pay the Administrative Fee. This Declaration shall terminate as to each legal Parcel comprising a portion of the Affordable Parcel upon termination of the Qualified Period for such Parcel. If requested by the then Owner, any termination of this Declaration as provided herein shall be memorialized by a memorandum of termination recorded in the Official Records by City confirming the termination of the Declaration as to the stated Parcel. 4.11. Payment of Fees and Tax Equivalent Pats. 4.11.1. Administrative Fee. At all times that the Project is not subject to a TCAC Regulatory Agreement, on April 1 following the Affordability Commencement Date and, on April 1 every year thereafter through the Qualified Period, the Owner shall pay to the City an administrative fee ("Administrative Fee") in an amount equal to $5,000 (Five Thousand Dollars) annually (as such amount will be increased as set forth below). The Administrative Fee shall increase each calendar year by two percent (2%) and the fee shall be paid each year until the end of the Qualified Period. 4.11.2. Payment of Administrative Fee. The Administrative Fee shall be payable to the City of Tustin, c/o the Office of the City of Tustin Finance Director, at 300 Centennial Way, Tustin, California 92780, or at such other place or places as the City from time to time may designate by written notice to Owner. 4.11.3. Interest on Late Administrative Fees. If the Administrative Fee is not paid when due then Owner shall also pay to the City interest on the unpaid Administrative Fee calculated at the rate of eight (8%) simple interest per annum, until paid. 5. Non -Discrimination Covenants. 5.1. Obligation to Refrain from Discrimination. There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or in development of the Market Rate Project or the Affordable Project, nor shall the applicable Owner establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property or in development of the Market Rate Project or the Affordable Project or any part thereof. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 14 /Irvine Co. Por. Disp. Areas 213, 2C and 8 5.1.1. In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 5.1.2. In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." 5.1.3. In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." 6. Maintenance. Owner shall maintain the Affordable Parcel at its sole cost, in accordance with the applicable requirements of the Special Restrictions and that certain Landscape Installation and Maintenance Agreement recorded in the Official Records with respect to the Real Property substantially concurrently with the recording of this Declaration in the Official Records; provided, however, that the liability of Owner or Ground Lessee for any breach of the applicable requirements of the Special Restrictions or the Landscape Installation and Maintenance Agreement shall be as set forth in such document and not create any separate liability of Owner or Ground Lessee under this Declaration. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 15 /Irvine Co. Por. Disp. Areas 213, 2C and 8 7. Assignment, Transfer and Transfer of Control. 7.1. Transfers and Transfer of Control Duriniz Term. The written consent required under Section 7.1.1 and under Section 7.1.2 to any Transfer of all or any portion of the Property or Improvements or interests therein or to any Transfer of Control shall constitute conclusive evidence that the Transfer or Transfer of Control, as applicable, is not in violation of this Section 7.1. Authority hereby delegates its consent with respect to all Transfers and Transfer of Control to the City and agrees that any consent by the City shall also be a consent by the Authority. 7.1.1. Limitations on Transfer Prior to Certificate of Compliance. Until Recording of a Certificate of Compliance for a legal Parcel within the Real Property, no Owner, Ground Lessee, or Successor Ground Lessee shall Transfer such Parcel or portion thereof, or Improvements thereon or its interest therein or Transfer Control, except in compliance with the requirements of Article 2, Section 4.7 or Article 17 of the DDA, which provisions, and all definitions and other provisions of the DDA required to interpret and apply such provisions, shall be deemed to be incorporated into this Section by this reference and to be in effect whether or not the DDA is then in effect or has terminated. Any purported Transfer or Transfer of Control that does not comply with the requirements of Article 2 and, if applicable, Article 17 of the DDA shall, at the election of the City, be null and void. 7.1.2. Limitations on Transfer Following Certificate of Compliance. Except for a Transfer from a Ground Lessee to the Owner of an Affordable Parcel as a result of a termination of the applicable Ground Lease, after an Affordable Parcel Certificate of Compliance has been recorded in the Official Records, any Transfer of ownership of the Improvements on such Affordable Parcel or a Transfer of Control by the Owner thereof or by Ground Lessee of its Ground Lease interest in or ownership of the Improvements on an Affordable Parcel, shall require the consent of the Program Administrator, which shall not be withheld or delayed if the following conditions are satisfied: (a)(i) the Owner or Ground Lessee (as applicable) of the applicable Affordable Parcel is not in default under this Declaration or the purchaser or assignee undertakes to cure any default of the applicable Owner or Ground Lessee to Program Administrator's reasonable satisfaction; and (ii) either (1) the transferee has at least five (5) years' experience in the operation and management of comparable rental housing projects, and at least five (5) years' experience in the operation and management of rental housing projects containing below -market - rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects, or (2) the transferee has retained a property management firm with the experience and record described in clause (ii)(1) above, and (iii) the transferee does not have pending against it, and does not have a recent history (i.e., within that prior five (5) years) of, significant and material building code violations concerning the maintenance, upkeep, operation, and regulatory agreement compliance of any of its projects as identified by any local, state or federal regulatory agencies; (b) if a Transfer, the execution by the transferee of any document reasonably requested by the City with respect to the assumption of the Owner's or Ground Lessee's (as applicable) obligations under this Declaration to the extent arising after such Transfer; and (c) the receipt by the City of all fees and/or expenses then currently due and payable to the City under this Declaration with respect to such Affordable Parcel. While not a Transfer, neither Owner nor Ground Lessee shall enter into a Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 16 /Irvine Co. Por. Disp. Areas 213, 2C and 8 property management agreement with a property management firm for the management of an Affordable Parcel unless that property management firm has the experience and record described in clause (ii)(1) above. For the purposes of clarification, a default by an Owner as to an Affordable Parcel shall not prevent a Transfer by a Ground Lessee, and during the term of any Ground Lease on an Affordable Parcel, clause (a)(ii) above shall not be a condition precedent to a Transfer by the Owner of such Affordable Parcel, if the Ground Lessee is managing the Affordable Parcel. 7.2. Assignment of Obligations. If the Program Administrator approves the sale of the Property or the Improvements or any portion thereof or interest therein, Owner or Ground Lessee (as applicable) shall cause the purchaser of such portion of the Property to assume in writing all of the obligations of Owner or Ground Lessee (as applicable) under this Declaration with respect to such transferred interest and to extent arising after such Transfer pursuant to an assignment and assumption agreement reasonably approved by the Program Administrator ("Assignment Agreement"), and Owner or Ground Lessee (as applicable) and the purchaser shall cause the Assignment Agreement to be recorded in the Official Records against the purchaser's portion of the Property. 8. Release of Owner and Ground Lessee Upon Transfer. 8.1. Prior to Affordable Parcel Certificate(s) of Compliance. Prior to recording by the City in the Official Records of an Affordable Project Certificate of Compliance for an Affordable Parcel, Initial Owner and each and every Successor Owner and, with respect to the Affordable Parcel, each Ground Lessee and Successor Ground Lessee (if any), shall remain jointly and severally liable for the obligations of Owner under this Declaration with respect to such Affordable Parcel unless released in writing by the City in accordance with the terms of the DDA. Notwithstanding the foregoing, Initial Owner shall be released from all obligations under this Declaration with respect to any Parcel re -acquired by City pursuant to Article 16 of the DDA except with respect to each and every indemnity, and for each and every breach or default of this Declaration, that Accrues or Accrued during Initial Owner's period of ownership of such Parcel. 8.2. Following Affordable Parcel Certificate(s) of Compliance. Following recording by the City in the Official Records of an Affordable Project Certificate of Compliance for an Affordable Parcel, each Owner of an Affordable Parcel and each Ground Lessee (if any), shall remain liable under this Declaration with respect to each and every indemnity and for each and every breach or default of this Declaration that Accrues or Accrued during their respective period of ownership or Ground Lease, as applicable, provided that, upon Transfer of any Parcel comprising a portion of the Affordable Parcel or Ground Lessee's leasehold interest in a Parcel following recording by the City in the Official Records of the Affordable Project Certificate of Compliance for such Parcel, the transferring Owner or Ground Lessee, as applicable, shall be released from its obligations hereunder to the extent such obligations have been assumed in writing by the Successor Owner, Ground Lessee or Successor Ground Lessee, as applicable. 9. Covenants and Restrictions to Run with the Land. 9.1. Covenants That Run With the Land. This Declaration and all Restrictions contained in this Declaration are intended to be covenants running with the land (including the Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 17 /Irvine Co. Por. Disp. Areas 213, 2C and 8 entire Real Property until terminated as set forth herein), and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by Tustin, and shall be binding upon and burden the Real Property and for the period described in Section 8 and to the extent not terminated or otherwise limited pursuant to Section 4.10 above, Initial Owner and each Successor Owner and their respective successors and assigns and each and every Person claiming by, through or under Initial Developer and each Successor Owner of the Property or portion thereof including each and every Ground Lessee, Successor Ground Lessee and End User, for the benefit of the City and its Governmental Successors. Except to the extent terminated or otherwise limited pursuant to Section 4.10 above, this Declaration shall survive each and every close of escrow with respect to the Real Property and shall not merge with any deed. 9.2. Tustin as Identified Beneficiary. In amplification and not in restriction of the provisions set forth hereinabove, each Owner by execution of this Declaration or by execution of the assignment and assumption agreement with respect to this Declaration confirms and agrees that the City and the Authority shall each be deemed a beneficiary of the agreements, covenants and restrictions herein both for and in its own right and also for the purposes of protecting the interests of the community. All covenants and restrictions without regard to technical classification or designation shall be binding for the benefit of both the City and the Authority, and such covenants and restrictions shall run in favor of both the City and the Authority for the entire period during which such covenants and restrictions shall be in force and effect, without regard to whether the City is or remains an owner of any land or interest therein to which such covenants and restrictions relate. The City and the Authority shall each have the independent right, in the event of any breach of this Declaration or covenant or restriction herein, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of this Declaration or covenants or restrictions. 9.3. No Third -Party Beneficiaries. This Declaration is not enforceable by and does not run to the benefit of any Person other than the City and the Authority and their respective successors and assigns. 10. Burden and Benefit; Priority. 10.1. Tustin hereby declares that all of the terms and provisions in this Declaration are covenants and restrictions that touch and concern the Property and that each Successor Owner's legal interest in the Property is rendered less valuable thereby. 10.2. This Declaration is superior in priority to all Mortgages and other instruments affecting the Property on or after the date of the recordation of this Declaration. 11. Intentionally Omitted. 12. Default Enforcement. 12.1. Default. "Event of Default" under this Declaration means any of the following: Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 18 /Irvine Co. Por. Disp. Areas 213, 2C and 8 12.1.1. A breach or default by Owner occurs under the Special Restrictions during the term thereof and after expiration of any applicable cure periods; 12.1.2. A breach or default by Owner occurs under the DDA prior to the recording by the City in the Official Records of the Affordable Project Certificates of Compliance or under the Development Agreement during its term and after expiration of any applicable cure periods; or 12.1.3. Owner or Ground Lessee (if any) fails to perform fully any of its obligations set forth in this Declaration within thirty (30) calendar days following receipt of written notice regarding such other default to Owner and Ground Lessee; provided, that if such failure is capable of being remedied but not capable of being remedied within thirty (30) calendar days and Owner or Ground Lessee has diligently pursued a cure, then the defaulting party shall have an additional sixty (60) calendar days to remedy such failure. The failure of the Program Administrator to notify Owner or a Successor Owner or Ground Lessee of any such default shall not be deemed a waiver of the default, and Tustin shall have no obligation to notify the defaulting party of the default. 12.2. Remedies; Joint Use Agreement; No Cross Default. Following an Event of Default, the City and the Authority, and each of them, may pursue all of their respective rights and remedies set forth in the Special Restrictions, the DDA, the Development Agreement, or this Declaration or otherwise available at law, in equity or by statute. The City's and the Authority's respective rights and remedies shall be cumulative (but not duplicative) and no one of such rights and remedies shall be exclusive of any of the others, or of any right or remedy at law or in equity which the City or the Authority, as applicable, might otherwise have by virtue under this Declaration and the exercise of one such right or remedy by the City or the Authority, as applicable, shall not impair City or Authority's standing to exercise any other right or remedy. By accepting this Declaration, each Owner and Ground Lessee (as applicable) agrees that this Declaration may be specifically enforced. Notwithstanding anything to the contrary contained herein, if the owner of the Improvements on an Affordable Parcel is a Ground Lessee, (a) after the recording of a Certificate of Compliance with respect to an Affordable Parcel, the Owner of such Affordable Parcel shall not be liable for an Event of Default by the Ground Lessee, and (b) the Ground Lessee of an Affordable Parcel shall not be liable for an Event of Default by the Owner of any Parcel. If the Property consists of more than one (1) Affordable Parcel, and each Affordable Parcel is not subject to the same Ground Lease or owned by the same Owner (if no Ground Lease applies to either Affordable Parcel), then the Owners (and any applicable Ground Lessees) of each Affordable Parcel shall enter into and record in the Official Records against the Affordable Parcels a joint use and easement agreement (the "Joint Use Agreement") that provides for the shared use and related services required for the Affordable Parcels to be operated in accordance with this Declaration, and such Joint Use Agreement shall be superior to the lien of any Mortgage. If a Joint Use Agreement is required pursuant to the foregoing sentence and remains in place, the responsible party under this Declaration for an Affordable Parcel (whether Owner or Ground Lessee) shall only be responsible for the obligations related to its Affordable Parcel and shall not be responsible for the acts or omissions of any other responsible party in connection with the other Affordable Parcel. (i.e., no "cross default"). Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 19 /Irvine Co. Por. Disp. Areas 213, 2C and 8 12.3. Non -Complying Lower Income Units. The Program Administrator may make a determination that Owner has breached its obligations regarding leasing of the Lower Income Units based on information provided in the Certificate of Continuing Program Compliance or determined by the Program Administrator in their reasonable discretion based on information otherwise available to them. In addition to any other rights and remedies set forth in this Declaration or otherwise available to any party legally entitled to enforce this Declaration, if a Default with respect to Section 4 occurs resulting in a Lower Income Unit becoming a Non - Complying Unit, and (a) if the Event of Default is not cured on a going forward basis within sixty (60) calendar days after notice from the Program Administrator to Owner, or (b) if such Event of Default cannot reasonably be cured within the sixty (60) day period and Owner has not commenced the curing of such Default, or if Owner is not otherwise diligently prosecuting such cure to completion, then, with respect to such Non -Complying Unit, Owner shall pay to the City the Compliance Fee for the Non -Compliance Period regarding such Non -Complying Unit. Owner shall pay the Compliance Fee for the Non -Complying Unit on the fifteenth (151h) day of the calendar month immediately following the end of the Non -Compliance Period for such Non - Complying Units. 12.4. Obligation of Owner During Default. Each Owner shall remain liable under this Declaration for any breach or default of this Declaration that occurs or is alleged to have occurred to the extent set forth in Section 8. 12.5. Lien of Mortgage, Priority. No breach or violation of any of the provisions of this Declaration shall impair, defeat or render invalid the lien of any Permitted Leasehold Mortgage prior to recording by the City of a Certificate of Compliance for a Parcel in the Official Records and thereafter, as to such Parcel, any Mortgage; provided, however, that any Person that is a Successor Owner or Successor Ground Lessee shall be bound by the covenants, conditions, restrictions, limitations and provisions of this Declaration, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise, but such Successor Owner or Successor Ground Lessee shall have a reasonable time after acquiring title in which to cure any violations or correct and change any facts giving rise to the City's rights under this Declaration occurring prior to such transfer of title or occupancy and which are reasonably capable of being cured or changed provided that such Successor Owner or Ground Lessee diligently acts to effect such cure or change (and in the event of such diligent and timely cure, such Successor Owner or Ground Lessee shall have no further liability in connection with such prior violation or the continued existence of such violation until such cure is completed). Prior to recording by the City in the Official Records of a Certificate of Compliance for any Affordable Parcel, any Permitted Leasehold Mortgagee with respect to such Affordable Parcel and following recording by the City in the Official Records of a Certificate of Compliance for any Affordable Parcel, any Mortgagee, shall be entitled to written notice in connection with any breach under this Declaration. 13. Administration, Recording and Filing. 13.1. Administration. The administration of this Declaration by the City and the Authority shall be delegated by the City and the Authority to the Program Administrator. The Program Administrator shall have the authority to act on behalf of the City and the Authority for all purposes under this Declaration and provide all approvals, notices, consents and interpretations Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 20 /Irvine Co. Por. Disp. Areas 213, 2C and 8 that may be required under this Declaration from either the City or the Authority or both; provided that the Program Administrator shall not have the authority to modify or amend this Declaration. 13.2. Recording. This Declaration, and all amendments and supplements hereto and thereto, shall be recorded and filed in the Official Records. Owner shall pay all fees and charges incurred in connection with any such recording. 14. Indemnification. Each Owner shall defend, indemnify and hold harmless Tustin and their respective officers, officials, agents, employees, representatives, and volunteers (collectively, the "Tustin Parties") from and against all loss, damage, costs, expenses, liability, claim or judgment relating in any manner to (a) Owner performance or non-performance under this Declaration, except to the extent cause by the gross negligence or willful misconduct of any of the Tustin Parties, or (b) Ground Lessee's performance or non-performance of the Affordable Project Provisions. Sections 10.3 through 10.9 of the DDA (as incorporated as Sections 6.10 through 6.16 of the Special Restrictions) are incorporated herein by this reference with respect to the obligations under this Section 14. 15. Limitation of Liability. Notwithstanding any other provision or obligation to the contrary contained in this Declaration, (a) the liability of Owner under this Declaration to any Person, including Tustin, is limited to the Owner's interest in the Real Property and Improvements, and such persons and entities shall look exclusively to the Real Property and Improvements for satisfaction of any claim arising under this Declaration, and may also look to such other security as may from time to time be given for the payment of obligations arising out of this Declaration or any other agreement securing the obligations of the Owner under this Declaration; and (b) from and after the date of this Declaration, no deficiency or other personal judgment for monetary damages shall be rendered against Owner, the assets of Owner (other than Owner's interest in the Real Property and Improvements), or against Owner's partners, members, successors, transferees or assigns or against each their respective officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Declaration or arising out of any other agreements securing the obligations of Owner under this Declaration, or any judgment, order or decree rendered pursuant to any such action or proceeding. Nothing in this Declaration shall limit the City's rights and remedies pursuant to the DDA, the DA and the Other Agreements. 16. Miscellaneous. 16.1. Governing Law. This Declaration shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, without giving effect to any choice of law provisions. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 21 /Irvine Co. Por. Disp. Areas 213, 2C and 8 16.2. Amendment or Modification of Declaration Without the Consent of Tenants and Mortgagees. The City and its successors and assigns, as the first party, and each Owner then owning, and each Ground Lessee then leasing, all or any portion of the Real Property or any Improvements that are then subject to this Declaration, as the second parties, shall have the right upon written agreement signed by the first party and all of the second parties then holding such interests, to consent and agree to changes in, or to eliminate in whole or in part, any of the terms or provisions in this Declaration without the consent of any tenant, lessee, easement holder, licensee, Mortgagee trustee, beneficiary under a deed of trust, or any other Person having any interest less than a fee in the Real Property. Any such amendment or modification shall be duly recorded in the Official Records. 16.3. Approvals by City and Authority. This Declaration shall be administered by the Program Administrator on behalf of both the City and the Authority pursuant to Section 13.1 above. Except where the Program Administrator determines that the approval of a matter may require approval by the City Council or the taking of an action by the City Council, any matter to be approved by the City shall be deemed approved, and any action to be taken by the City shall be deemed taken, upon the written approval by the Program Administrator. The Program Administrator shall have the authority to issue interpretations with respect to this Declaration and to determine whether any action requires the approval of the City Council. Any matter to be approved by the Authority shall be deemed approved, and any action to be taken by the Authority shall be deemed taken, upon the written approval by the Program Administrator. The Program Administrator shall have the authority to issue interpretations on behalf of the Authority with respect to this Declaration and to determine whether any action requires the approval of the Authority board. 16.4. Waiver. No waiver of any provision or consent to any action under this Declaration shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a party shall be null and void if the party requesting such waiver provided negligent or willful misrepresentations of any material facts relevant to the waiver requested. 16.5. Notices. All notices, demands, consents, requests and other communications required or permitted to be given under this Declaration shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the Person to which notice is being provided; (b) three (3) Business Days after such notice has been sent by U.S. Postal Service via certified mail, return receipt requested, postage prepaid, and addressed to the other party as set forth below; or (c) the next Business Day after such notice has been deposited with an overnight delivery service, postage prepaid, addressed to the party to whom notice is being sent as set forth below with next -business -day delivery guaranteed, provided that the sending parry receives a confirmation of delivery from the delivery service provider. Unless otherwise provided in writing, all notices with respect to this Declaration shall be addressed as follows: Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 22 /Irvine Co. Por. Disp. Areas 213, 2C and 8 Initial Owner: {insert) Tustin: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Tustin Housing Authority Attn: City Manager Attn: City Attorney With copy to: David Kendig City Attorney Woodruff, Spradlin & Smart 555 Anton Blvd. Suite 1200 Costa Mesa, California 92626 In addition, if any Ground Lease is in effect contemporaneously with the City giving any notice of default to an Owner with respect to the Affordable Parcel, the City will provide a copy of the notice of default, in the manner otherwise specified for giving notice, to the Owner and concurrently to the Ground Lessee, at the address provided for the Ground Lessee in an Acceptance and Consent Certificate in the form attached as Exhibit G to this Declaration executed by such Ground Lessee and delivered to the City concurrently with such Ground Lessee's execution of the Ground Lease or an assignment of Ground Lessee's interest therein meeting the requirements of Section 7, or at such other address as such Ground Lessee may later provide to the City in accordance with the requirements of this Section. No failure by the City to provide any notice of default to or at the request of the Ground Lessee shall affect the validity or effect of such notice of default delivered to Owner. Any Owner, Ground Lessee, City or Tustin Housing Authority may by written notice in the manner specified in this Declaration change the address to which notices to such Person shall be delivered. 16.6. Severability. Any provision of this Declaration that is deemed to be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to the extent of the invalidity or unenforceability of such provision and shall be deemed stricken from this Declaration. Any stricken provision shall not affect the legality, enforceability or validity of the remainder of this Declaration. If any provision or part of this Declaration is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is legally possible. Any such invalidity or unenforceability of any provision in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 23 /Irvine Co. Por. Disp. Areas 213, 2C and 8 16.7. Consent to Jurisdiction. All actions or proceedings arising in connection with this Declaration shall be tried and litigated exclusively in the state and federal courts located in the County of Orange, State of California. This choice of venue is mandatory and not permissive in nature, thereby precluding the possibility of litigation with respect to or arising out of this Declaration in any jurisdiction other than that specified in this Section, and without the right it may have to assert the doctrine forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section, and stipulates that the state and federal courts located in the County of Orange, State of California, shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or proceeding arising out of this Declaration. By executing a consent to this Declaration, each Owner and Ground Lessee authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Section by means of registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Declaration and in the manner set forth in Section 16.5. Any final judgment rendered against the party in any action or proceeding (after expiration of applicable appeal periods without having timely filed any such appeal) shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. 16.8. Time Is of the Essence. Time is of the essence in this Declaration, and failure to timely comply with provisions of this Declaration shall be a breach under this Declaration. 16.9. Attorneys' Fees. If any party that is subject to this Declaration (including City, Authority, any Owner and any Ground Lessee) files an action or brings any proceeding against the other party arising from this Declaration, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees and costs to be fixed by the court. A party not entitled to recover its costs shall not recover attorneys' fees. No sum for attorneys' fees shall be included in calculating the amount of a judgment for purposes of deciding whether a party is entitled to its costs or attorneys' fees. 16.10. Recitals. The recitals set forth at the beginning of this Declaration of any matters or facts shall be conclusive proof of the truthfulness thereof and the terms and conditions set forth in the recitals, if any, shall be deemed a part of this Declaration. 16.11. Exhibits. Unless otherwise indicated, references in this Declaration to articles, sections, paragraphs, subsections, clauses, exhibits, attachments and schedules are to the same contained in or attached to this Declaration and all exhibits and attachments referenced in this Declaration are incorporated in this Declaration by this reference and made a part of this Declaration as though fully set forth in this Section. 16.12. Captions. All captions, titles or headings of the articles, sections, paragraphs or subparagraphs of this Declaration are inserted solely for reference, shall not be deemed to be a part of this Declaration, and shall not define, limit, extend or describe the scope of this Declaration nor be used or construed in the interpretation or determination of the validity of this Declaration or any provision thereof. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 24 /Irvine Co. Por. Disp. Areas 213, 2C and 8 16.13. Definitions. As used in this Declaration the words "include", "includes" and "including" mean, respectively, "include, without limitation,", "includes, without limitation," and "including, without limitation,". 16.14. Counterparts. This Declaration may be executed in counterparts, and all such counterparts when taken together shall constitute a single instrument. {signature page follows} Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL 25 /Irvine Co. Por. Disp. Areas 213, 2C and 8 IN WITNESS WHEREOF, this Declaration is executed by City and Authority as of the date first written above. Dated: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney Hepner & Myers LLP Special Real Estate Counsel to the City By: Amy E. Freilich CITY OF TUSTIN: By: , Aldo E. Schindler City Manager TUSTIN HOUSING AUTHORITY: By: , Aldo E. Schindler Executive Director {signatures continue on following page) Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL S-1 /Irvine Co. Por. Disp. Areas 2B, 2C and 8 ACCEPTANCE AND CONSENT BY INITIAL OWNER By executing below to evidence acceptance of and agreement to the terms of this Declaration, Initial Owner, on behalf of itself and each Successor Owner, Ground Lessee and Successor Ground Lessee declares and shall have each and every Ground Lessee declare for the benefit of the City and its successors and assigns (a) its understanding and intent that the benefit of the covenants and restrictions that run with the land and touch and concern the Real Property are made for the enhancement and enjoyment and use of the Real Property and Improvements by Qualified Households who may be entitled to lease Lower Income Units under the terms of this Declaration, (b) that this Declaration furthers the public purposes for which the DDA and the Development Agreement were entered into with Initial Owner and each and every Successor Owner's, Ground Lessee's and Successor Ground Lessee's legal interest in the Real Property is rendered less valuable thereby and (c) that it agrees to assume and be bound by the obligations of Owner set forth herein during its term of ownership of the Real Property or any portion thereof. INITIAL OWNER: TUSTIN LEGACY ACQUISITION LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL S-2 /Irvine Co. Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date Title of the Officer) personally appeared _ Name(s) of Signer(s) before me, , (Insert Name and who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL S-3 /Irvine Co. Por. Disp. Areas 213, 2C and 8 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On Date Title of the Officer) personally appeared _ Name(s) of Signer(s) before me, , (Insert Name and who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp above Signature: Signature of Notary Public Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL S-3 /Irvine Co. Por. Disp. Areas 213, 2C and 8 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOTS 11, 12 AND 13 OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. FOR CONVEYANCING PURPOSES ONLY: APN'S 430-481-02, 03, 04 AND 05 Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (14M)(2) FINAL Exhibit A /Irvine Co. Por. Disp. Areas 213, 2C and 8 EXHIBIT B GLOSSARY OF DEFINED TERMS For purposes of this Declaration, the following initially capitalized terms shall mean the following: "Accrue", "Accrued", or "Accruing" shall mean with respect to any Claim, the date and time such Claim arises as a matter of law and could then or thereafter be asserted by any Person. "Affordability Commencement Date" means, as to any Affordable Parcel, the date on which all of the following have occurred: (a) all Lower Income Units required to be constructed on such Affordable Parcel have been completed, and (b) the first occupancy by a Qualified Household of a Lower Income Unit on such Affordable Parcel. "Affordable Parcel" means Lot 13 of Tract Map No. 18197, or any legal parcel contained therein, if Lot 13 is subdivided into more than one legal parcel. "Affordable Project" means the development, construction, maintenance, leasing and use of the Improvements on any Affordable Parcel. "Affordable Project Certificates of Compliance" means for the Affordable Parcel, the certificates of compliance to be recorded by the City in the Official Records upon the satisfaction of the obligations set forth in the DDA for such issuance of a Certificate of Compliance for Lot 13 as a whole or for all applicable Parcels together comprising Lot 13, if Lot 13 is subdivided into more than one legal parcel and a reference to an Affordable Project Certificate of Compliance shall mean the Certificate of Compliance for any Parcel comprising a subset of Lot 13. "Affordable Project Provisions" shall mean those provisions of the DDA during its term, this Declaration and the Other Agreements that have been delegated by Developer to Ground Lessee pursuant to the Lot 13 PDA and/or Ground Lease then in effect, and shall include, unless otherwise set forth in such Lot 13 PDA or Ground Lease, all aspects of design, development, financing, construction and operation of the Affordable Project on the applicable Affordable Parcel in accordance with the DDA, this Declaration and the Other Agreements, and as and to the extent made or deemed to be made by Affordable Housing Developer, Ground Lessee or Successor Ground Lessee and related to the Affordable Project and/or Affordable Project Improvements, all indemnities, waivers and releases under the DDA, this Declaration and the Other Agreements. "Affordable Rent" means for any Lower Income Unit, monthly Rent Consideration payable by the tenant that does not exceed the Maximum Monthly Affordable Rent applicable to that Lower Income Unit. "Administrative Fee" has the meaning set forth in Section 4.11.1. "Approved List" has the meaning set forth in Section 4.4.1. "Assignment Agreement" has the meaning set forth in Section 7.2. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 1 "Authority" has the meaning set forth in the introductory paragraph of this Declaration. "Business Day(s)" shall mean any day on which City Hall is open for business and shall specifically exclude Saturday, Sunday or a legal holiday or City holiday. "Certificate of Compliance" means for each of Lot 11 and Lot 12 and Lot 13 or each legal Parcel thereof, the certificate of compliance to be recorded by the City in the Official Records upon the satisfaction of the obligations set forth in the DDA for such issuance. "Certificate of Continuing Program Compliance" means the annual report of occupancy for the Lower Income Units including the Verification of Income provided by each Owner to Authority as described in Section 4.9 or such other form as may be prescribed by the Authority. "City" has the meaning set forth in the introductory paragraph of this Declaration. "City Code" has the meaning set forth in Recital E(1). "Claim" or "Claims" shall mean any and all claims, actions, causes of action, demands, orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including attorneys' fees, fees of expert witnesses, consultants' fees and court and litigation costs), costs and expenses attributable to compliance with judicial and regulatory orders and requirements, fines, penalties, liens, taxes, monetary payment or reimbursements or any type of compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen. "Compliance Fee" for a Non -Complying Unit means an amount equal to (a) twenty-five percent (25%) multiplied by (b) the Rent Consideration or rent being paid by the tenant, whichever is greater, under its lease for the entire Non -Compliance Period. "Control" "Controlled" or "Controlling", as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current ability to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests, acting as the manager of a limited liability company, the administrative general partner of a partnership or otherwise. Notwithstanding the foregoing, the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute "Control" if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person. "Controlling Person" means (i) any Person who Controls Owner during the Term and (ii) any Person who Controls a Controlling Person. Notwithstanding the foregoing, if a Person has the right to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of Owner, such Person shall not be deemed to be a Controlling Person unless such Person also possesses, directly or indirectly (including through one or more intermediaries), the power to direct or cause the direction of the management and policies of Owner. The Controlling Person of the Initial Owner as of the Effective Date is Donald Bren. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 2 "DDA" has the meaning set forth in Recital A. "Declaration" has the meaning set forth in the introductory paragraph to this instrument. "Density Bonus Laws" has the meaning set forth in Recital E(1). "Density Bonus Ordinance" has the meaning set forth in Recital E(1). "Density Bonus Statute" has the meaning set forth in Recital E(1). "Developer" shall mean (i) prior to recording in the Official Records by the City of a Certificate of Compliance for a Parcel, each Person that is the Developer under the DDA and (ii) following recording in the Official Records by the City of a Certificate of Compliance for a Parcel, the Owner of the applicable Parcel. "Development Agreement" has the meaning set forth in Recital D. "Real Property" has the meaning set forth in Recital A. "End User" shall mean any (i) utility or Governmental Authority with respect to any transfer of portions of the Real Property or grants of easements affecting the Real Property desirable for the development of the Real Property, including the City or any lighting or landscaping district and (ii) any natural person that is the tenant under a lease for a dwelling unit and inhabits the unit for which it is the tenant. "Entitlements" has the meaning set forth in Recital D. "Event of Default" has the meaning set forth in Section 12.1. "Fiscal Year" means the property tax year for the State of California from July 1 until the following June 30, as such fiscal year may be changed from time to time by the State of California. "Governmental Authority" means, respectively, each and all federal, state, county, municipal and local governmental and quasi -governmental bodies and authorities (including the United States of America, the State and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over the City, the Authority, any Owner, the development, or the Real Property in connection with construction or rental of dwelling units, including Lower Income Units, on the Affordable Parcel. "Ground Lease" shall mean a lease pursuant to which an Owner leases a leasehold interest in one or more Parcels within Lot 13 and the Improvements then present or constructed thereon. "Ground Lessee" shall mean each and every Person holding the tenant's interest in a Ground Lease. "HCD" has the meaning set forth in Section 4.4.1. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 3 "Annual List" has the meaning set forth in Section 4.4.1. "Housing Incentive Agreement" has the meaning set forth in Recital D. "HSC Rents" has the meaning set forth in Section 4.4.1. "Home Office" means the use of a separate area or room, but not a bedroom, for business purposes in addition to such Lower Income Unit being used as the principal residence by the Lower Income Household. The use of a Lower Income Unit as a Home Office shall not reduce the number of bedrooms that are required to be within a Lower Income Unit pursuant to this Declaration. "Income" means `Income,' as defined by California Code of Regulations Title 25, §6914, and shall include the following: 1) The gross amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses; 2) The net income from operation of a business or profession or from rental or real or personal property (for this purpose, expenditures for business expansion or amortization of capital indebtedness shall not be deducted to determine the net income from a business); 3) Interest and dividends; 4) The full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts; 5) Payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay (but see subdivision (b)(3)); 6) Public Assistance. If the public assistance payment includes an amount specifically designated for shelter and utilities which is subject to adjustment by the public assistance agency in accordance with the actual cost of shelter and utilities, the amount of public assistance income to be included as income shall consist of: a) The amount of the allowance or grant exclusive of the amount specifically designated for shelter and utilities, plus b) The maximum amount which the public assistance agency could in fact allow for the family for shelter and utilities, 7) Periodic and determinable allowances such as alimony and child support payments, and regular contributions or gifts received from persons not residing in the dwelling; and 8) All regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is head of the family or spouse (but see subdivision (b)(5)). "Income" shall not include the following: 1) Casual, sporadic and irregular gifts (includes casual, sporadic and irregular income under this exclusion); Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 4 2) Amounts which are specifically for or in reimbursement of the cost of medical expenses; 3) Lump -sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses; 4) Amounts of educational scholarships paid directly to the student or to the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships, or payments to veterans not used for the above purposes that are available for subsistence are included in income; 5) The special pay to a serviceman head of a family away from home and exposed to hostile fire; 6) Relocation payments made pursuant to federal, state, or local relocation law; 7) Foster childcare payments; 8) The value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged the eligible household; and 9) Payments received pursuant to participation in the following volunteer programs: a. National Volunteer Antipoverty Programs which include VISTA, Service Learning Programs and Special Volunteer Programs. b. National Older American Volunteer Programs for persons aged 60 and over which include Retired Senior Volunteer Programs, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience, Service Corps of Retired Executive (SCORE) and Active Corps of Executives (ACE). As used herein, "Income" shall be the anticipated Income of a person or family for the twelve-month period following the date of determination of Income. To make the projection, a "snapshot" of the household's current circumstances is used to project future Income. The circumstances on the date of measurement should be assumed to continue for the next twelve (12) months unless there is verifiable evidence to the contrary. "Improvements" means the buildings, structures, parking, fixtures, site improvements (including landscaping and hardscaping), amenities and facilities constructed or installed on the applicable portions of the Real Property. "Initial Leasing Period" has the meaning set forth in Section 4.3.5. "Initial Owner" means Tustin Legacy Acquisition LLC, a Delaware limited liability company. "IRC Section 42" means Section 42 (Low -Income Housing Credit) of the Internal Revenue Code of 1986 as amended, and any regulations promulgated thereunder. "Joint Use Agreement" has the meaning set forth in Section 12.2. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 5 "Lot 11" means the portion of the Real Property identified as Lot 11 on Final Tract Map No. 18197. "Lot 12" means the portion of the Real Property identified as Lot 12 on Final Tract Map No. 18197. "Lot 13" means the portion of the Real Property identified as Lot 13 on Final Tract Map No. 18197. "Lot 13 PDA" shall mean the Property Development Agreement between the initial Owner of the Affordable Parcel and USA Properties, Fund, Inc. with respect to the development of the Affordable Parcel. "Low Income Households" means persons and families whose income does not exceed the qualifying limits for lower income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937 and Health & Safety Code section 50093. The limits shall be published by the Department of Housing and Community Development in the California Code of Regulations as soon as possible after adoption by the Secretary of Housing and Urban Development. In the event the federal standards are discontinued, the Department of Housing and Community Development shall, by regulation, establish income limits for lower income households for all geographic areas of the state at 80 percent of area median income, adjusted for family size and revised annually. "Low Income Units" means the dwelling units, if any, required to be constructed and rented to, occupied by, or held available for Low Income Households in accordance with this Declaration. "Lower Income Household" includes Low Income Households and Very Low Income Households. "Lower Income Units" means each dwelling unit, if any, constructed and rented to, occupied by, or held available for a Lower Income Household. "Mandatory Density Bonus" has the meaning set forth in Recital E(1). "Market Rate Units" means dwelling units to be developed on Lot 11 and Lot 12. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 6 "Maximum Monthly Affordable Rent" means for any Lower Income Unit, the maximum monthly Rent Consideration payable by the tenant under the lease that does not exceed the following: (a) with respect to Very Low Income Units, the Annual Maximum Very Low Income Rent for a Very Low Income Household (calculated in accordance with the requirements below) divided by twelve (12) as specifically applicable to the particular Qualified Household that is the tenant, and (b) with respect to Low Income Units, the Annual Maximum Low Income Rent for a Low Income Household (calculated in accordance with the requirements below) divided by twelve (12), as specifically applicable to the particular Qualified Household that is the tenant. The applicable Maximum Monthly Affordable Rent for a particular Qualified Household shall consider and include a reasonable allowance for utilities and shall otherwise be an amount not in excess of the following: For "Low Income Households", as more particularly defined as "lower income households" in Health and Safety Code Section 50053(b)(4), and as generally described herein, the "Annual Maximum Low Income Rent" shall be equal to the product obtained by multiplying (a) thirty percent (30%) by (b) sixty percent (60%) of the annual Orange County Median Income adjusted for family size appropriate for the units, including a reasonable utility allowance or the Low Income Rent for the bedroom size, including a reasonable utility allowance, as published by TCAC, if higher. It shall be optional for any Owner to calculate Affordable Rent for those low income households with gross incomes that exceed sixty percent (60%) of the annual Orange County Median Income adjusted for family size at a level that does not exceed thirty percent (30%) of the annual gross income of the household. Notwithstanding the foregoing, Annual Maximum Low Income Rent may, at the option of any Owner, be established in accordance with the TCAC monthly rent limits for Low Income Households. The Annual Maximum Low Income Rent shall be calculated in accordance with the applicable subsection of Health and Safety Code Section 50053(b)(1) as modified by Section 50053(b)(2). For "Very Low Income Households", as more particularly defined in Health and Safety Code Section 50053(b)(3), and as generally described herein, the "Annual Maximum Very Low Income Rent" shall either be equal to the product obtained by multiplying (i) thirty percent (30%) by (ii) fifty percent (50%) of the annual Orange County Median Income adjusted for family size appropriate for the units, including a reasonable utility allowance. Notwithstanding the foregoing, Annual Maximum Very Low Income Rent may, at the option of any Owner, be established in accordance with the TCAC monthly rent limits for very low income households as long as those rents do not exceed the HSC Rent for Low Income Units. The Annual Maximum Very Low Income Rent shall be calculated in accordance with the applicable subsection of Health and Safety Code Section 50053(b)(1) as modified by Section 50053(b)(2). "Mortgage" shall mean any indenture of mortgage or deed of trust, hypothecation, pledge, assignment for security purposes, bond, grant of taxable or tax exempt funds from a governmental agency or other security interest or any documents constituting or relating to a sale -leaseback transaction, together with all loan documents related thereto, but excluding any community facilities districts, service districts, assessment districts, landscape and lighting districts, or other Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 7 assessments created or imposed by any Governmental Authority and for avoidance of doubt shall include any Permitted Leasehold Mortgage. "Mortgagee" shall mean any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage or with respect to any property that is the subject of a sale leaseback transaction, the Person acquiring fee title and for avoidance of doubt shall include any Permitted Leasehold Mortgagee. "Non -Compliance Period" for a Non -Complying Unit means the period commencing on the date that is sixty-one (61) calendar days after notice from Tustin to Owner pursuant to Section 12.3, or as otherwise may be extended by Tustin in writing upon request of Owner, and ending on the date that is the earlier of (a) the date that Owner cures the Default that resulted in the Non - Complying Unit or (b) the date that the tenant of the Non -Complying Unit vacates the Non - Complying Unit. Owner shall provide Tustin with reasonable evidence of the date that either (i) Owner cures the Default that resulted in the Non -Complying Unit or (ii) the tenant of the Non - Complying Unit vacates the Non -Complying Unit, as applicable. "Non -Complying Units" means a Lower Income Unit which is occupied and/or leased in violation of Section 4 of this Declaration. "Official Records" has the meaning set forth in Recital A. "Orange County Median Income" or "AMI" means the median family income for the Orange County Primary Metropolitan Statistical Area as most recently established by official annual publication of the Federal Department of Housing and Urban Development as published, modified and released by the State Department of Housing and Community Development, adjusted for household size. "Other Agreements" shall mean the Quitclaim Deed, this Declaration, the Memorandum of DDA, the Development Agreement, the Landscape Installation and Maintenance Agreement, the Special Restrictions, and the Public Access Covenant. "Outside Rent Calculation Date" has the meaning set forth in Section 4.4.1. "Over -Income Unit" has the meaning set forth in Section 4.7.1. "Owner" shall mean the Initial Owner or the applicable Successor Owner holding fee title to all or any portion of the Real Property (or applicable Ground Lessee to the extent set forth in Section 1.4) at that time. therein. "Parcel" means Lot 11, Lot 12 and Lot 13 individually, or any legal parcel or lot contained "Parcels" mean more than one Parcel or all the Parcels, as applicable. "Permitted Leasehold Mortgage" shall mean any indenture of mortgage or deed of trust, bonds, grant of taxable or tax-exempt funds from a governmental agency or other conveyance of Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 8 a security interest in the leasehold estate created by any Ground Lease on the Affordable Parcel to a Permitted Leasehold Mortgagee for the purpose of development and construction of all or a portion of the Affordable Project. "Permitted Leasehold Mortgagee" shall mean the Mortgagee, and any successor or assign of such Mortgagee having all right, title and interest in and to the loan documents, and in each case meeting the criteria set forth in Section 17.1 through 17.3 of the DDA and accordingly entitled to the Permitted Leasehold Mortgagee protections provided therein. "Person" means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, governmental agency or other entity, domestic or foreign. "Program Administrator" means the City Manager or person designated by the City Manager to act as the program administrator under this Declaration. "Property" has the meaning set forth in Section 1.2. "Proposed List" has the meaning set forth in Section 4.4.1. "Qualified Household" has the meaning set forth in Section 4.9.4. "Qualified Period" means the period beginning on the Effective Date and ending, for any Affordable Parcel, on the date which is fifty-five (55) years after the Affordability Commencement Date for that Parcel. "Qualified Period Certificate" has the meaning set forth in Section 4.9.1. "Quitclaim Deed" means that certain Quitclaim Deed for Portions of Disposition Areas 213, 2C and 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 dated as of the Restrictions Date, from the City to Initial Owner and recorded in the Official Records substantially concurrently with the recording in the Official Records of this Declaration. "Rent Consideration" means all mandatory consideration actually paid by a tenant to the landlord under a lease for housing services and amenities. Housing services and common area amenities include, but are not limited to, the following: parking for one (1) vehicle for a one- or up to two -bedroom unit and two (2) vehicles for more than a two -bedroom unit, use of common facilities including pools or health spas, and utilities if the development is master -metered. Notwithstanding the foregoing, utility charges, to the extent individually metered for each Lower Income Unit, reimbursement for damages caused by a tenant, and optional fees like additional vehicle parking fees and pet fees may be passed through or billed directly to the occupants of Lower Income Units in addition to and separate from any items of Rent Consideration. "Restrictions" has the meaning set forth in Section 2. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 9 "Special Restrictions" means the declaration denominated as Special Restrictions and recorded in the Official Records against the Real Property substantially concurrently with the recording in the Official Records of this Declaration. "Specific Plan" has the meaning set forth in Recital C. "Successor Ground Lessee" shall mean each and every Person that is a successor to or assignee of Ground Lessee with respect to its interest in the Ground Lease, but excluding each and every End User; provided that during the term of the DDA as to any Parcel, any such Transfer shall be subject to the applicable limitations set forth in Sections 1.4.3, 4.7 and 13.2.3 and Article 17 of the DDA and the terms of the Lot 13 PDA or the Ground Lease. "Successor Owner" shall mean each and every Person owning or acquiring fee title to all or any portion of the Real Property from and after the conveyance of such Real Property to Initial Owner by the City, but excluding each and every End User provided that during the term of the DDA as to any Parcel, any such Transfer shall be subject to the applicable limitations set forth in Article 2 of the DDA. "TCAC" means the California Tax Credit Allocation Committee, or its successor agency. "TCAC Procedures" has the meaning set forth in Section 4.9.2. "Term" means the period commencing upon the recording of this Declaration in the Official Records and ending as to Lot 11 and Lot 12 upon the recording in the Official Records of the Affordable Project Certificates of Compliance and as to any Affordable Parcel, upon the end of the Qualifying Period applicable to such Affordable Parcel. "Total Lower Income Units" means, as to each Parcel within the Affordable Parcel, the total number of Lower Income Units specified in (a) during the term of the DDA, the "Approved Plans" as defined in the DDA and (b) following recording of a Certificate of Compliance for each such Parcel, the number of Lower Income Units established in the Certificate of Compliance for such Parcel. "Transfer" means (a) the transfer, sale, assignment, Ground Lease, sublease of Ground Lease, or other similar conveyance by any Owner of Owner's interests in the Property or any portion thereof, or Improvements, whether voluntary, involuntary, by operation of law or otherwise, or any agreement to do so; (b) the execution of any installment land sale contract or similar instrument affecting all or a portion of the Real Property or Improvements, or any portion thereof or interest therein; and (c) any divisive merger or similar term as such term is defined by the law of the state in which the transferor entity is formed. An End User shall not be considered a Transfer. "Transfer of Control" means, with respect to Owner or Owner's Controlling Person, the occurrence, directly or indirectly, in a single transaction or a series of transactions, of any of the following: Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 10 (a) the conveyance, sale, assignment, transfer or disposition of all or substantially all of that Person's (or its Controlling Person's) assets, stock, membership or partnership interests or other equity interests; (b) the dissolution, merger, reorganization, share exchange, recapitalization, restructuring or consolidation of that Person (or its Controlling Person), other than a transaction that would result in all of the voting securities of that Person (or its Controlling Person) outstanding immediately prior thereto to continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 5 0. 01 % of the combined voting power of all of the voting securities of that Person (or its Controlling Person) or such surviving entity outstanding immediately after such transaction; and (c) the acquisition by any "Person" or "Group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) of an aggregate of 50.01% or more of the beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934) of the issued and outstanding voting securities or other equity interests of that Person (or its Controlling Person), where such acquiring "Person" or "Group" did not directly or indirectly (or through an affiliate) already Control or own at least 50.01% of the voting securities or other equity interests of such Person (or its Controlling Person). "Tustin" has the meaning set forth in the introductory paragraph of this Declaration. "Tustin Legacy" has the meaning set forth in Recital C. "Tustin Parties" has the meaning set forth in Section 14. "Unit Requirements Certificate" has the meaning set forth in Section 4.2. "Verification of Income" has the meaning set forth in Section 4.9.2. "Very Low Income Household" means persons and families whose incomes do not exceed the qualifying limits for very low income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937 and Health & Safety Code section 50105. These qualifying limits shall be published by the Department of Housing and Community Development in the California Code of Regulations as soon as possible after adoption by the Secretary of Housing and Urban Development. In the event the federal standards are discontinued, the Department of Housing and Community Development shall, by regulation, establish income limits for very low income households for all geographic areas of the state at 50 percent of area median income, adjusted for family size and revised annually. "Very Low Income Units" means the dwelling units, if any, required to be constructed and rented to, occupied by, or held available for Very Low Income Households in accordance with this Declaration. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit B /Irvine Co. Por. Disp. Areas 213, 2C and 8 11 EXHIBIT C LEGAL DESCRIPTION OF AFFORDABLE PARCEL (LOT 13) That certain real property located in the City of Tustin, County of Orange, State of California, and legally described as follows: {insert legal description for Lot 13 with Quitclaim Deed exclusions) Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (14M)(2) FINAL Exhibit C /Irvine Co. Por. Disp. Areas 213, 2C and 8 EXHIBIT D QUALIFIED PERIOD CERTIFICATE CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT BE RECORDED AND EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE SECTION 6103 AND SECTION 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: City Clerk [SPACE ABOVE LINE FOR RECORDER'S USE ONLY] AFFORDABLE PROJECT QUALIFIED PERIOD CERTIFICATE AFFORDABLE PARCELS In accordance with Section of the Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement dated as of , 20 and recorded in the Official Records of Orange County on , 20 as Document No. [as amended by dated as of , 20 and recorded in the Official Records of Orange County on , 20 as Document No. ] recorded against Parcel [ J as the same is legally described on Schedule 1 attached hereto and made a part hereof (collectively, "Declaration"), the undersigned confirms that the Qualified Period for the Affordable Project on Parcel [ J commenced on , 20_ and will terminate on . Capitalized terms not defined in this certificate shall have the meanings given to such terms in the Declaration. Dated: OWNER: [insert signature block) (signatures continued on following page) Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit D /Irvine Co. Por. Disp. Areas 213, 2C and 8 1 ACCEPTED AND AGREED: Dated: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney CITY OF TUSTIN: IRE Aldo E. Schindler City Manager TUSTIN HOUSING AUTHORITY: Aldo E. Schindler Executive Director {insert form of acknowledgement} Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit D /Irvine Co. Por. Disp. Areas 213, 2C and 8 S-1 SCHEDULEI LEGAL DESCRIPTION OF PARCEL Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit D /Irvine Co. Por. Disp. Areas 213, 2C and 8 Schedule 1 EXHIBIT E UNIT REQUIREMENTS CERTIFICATE CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT BE RECORDED AND EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE SECTION 6103 AND SECTION 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: City Clerk [SPACE ABOVE LINE FOR RECORDER'S USE ONLY AFFORDABLE UNIT REQUIREMENTS CERTIFICATE [LOT 131 t In accordance with Section of the Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement dated as of , 20_ and recorded in the Official Records of Orange County on , 20_ as Document No. [as amended by dated as of , 20 and recorded in the Official Records of Orange County on , 20 as Document No. ] recorded against the Affordable Parcel as the same is legally described on Schedule 1 attached hereto and made a part hereof (collectively, "Declaration"), the undersigned Owner of the Affordable Parcel confirms that the following shall be the allocation of Affordable Unit types, sizes and mix for the units on the Affordable Parcel. Unit Type Unit Size (0) Very Low Income Units Low Income Units Building 5 1 Bedroom Units TBD TBD 2 Bedroom Units TBD TBD ' NTD: This should reflect any change in the then parcel number and allow for recording on a building -by -building basis. Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit E /Irvine Co. Por. Disp. Areas 213, 2C and 8 1 Unit Type Unit Size (0) Very Low Income Units Low Income Units 3 Bedroom Units TBD TBD Building 6 1 Bedroom Units TBD TBD 2 Bedroom Units TBD TBD 3 Bedroom Units TBD TBD Totals TBD TBD Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit E /Irvine Co. Por. Disp. Areas 213, 2C and 8 This allocation and mix may be amended at any time by recording of a new certificate executed by the then Owner and Program Administrator, each in its sole discretion. Dated: OWNER: {insert signature block) (signatures continued on following page) Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit E /Irvine Co. Por. Disp. Areas 213, 2C and 8 S-1 ACCEPTED AND AGREED: Dated: ATTEST: By: Erica N. Yasuda City Clerk APPROVED AS TO FORM By: David Kendig City Attorney CITY OF TUSTIN: IRE Aldo E. Schindler City Manager TUSTIN HOUSING AUTHORITY: Aldo E. Schindler Executive Director {insert form of acknowledgement) Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit E /Irvine Co. Por. Disp. Areas 213, 2C and 8 S-2 SCHEDULEI LEGAL DESCRIPTION OF PARCEL Tustin Irvine Co DDA Att 25 Affordable Housing ATTACHMENT 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit E /Irvine Co. Por. Disp. Areas 213, 2C and 8 Schedule 1 EXHIBIT F MAXIMUM MONTHLY AFFORDABLE RENT [to be attached] Tustin Irvine Co DDA Att 25 Affordable Housing Attachment 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (14M)(2) FINAL Exhibit F /Irvine Co. Por. Disp. Areas 213, 2C and 8 EXHIBIT G ACCEPTANCE AND CONSENT BY GROUND LESSEE TO DECLARATION OF AFFORDABLE HOUSING RESTRICTIVE COVENANTS AND REGULATORY AGREEMENT This certificate ("Certificate") is being delivered pursuant to that certain Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement made by the City of Tustin and the Tustin Housing Authority and recorded in the Official Records of the Orange County Recorder's Office on as Instrument No. ("Declaration") This Certificate is being delivered by ("Ground Lessee") to the City and Tustin Housing Authority [[if in connection with initial execution of Ground Lease) concurrently with the execution by the undersigned of that certain Ground Lease dated , by and between ("Owner') and Ground Lessee [{or if assignment to Ground Lessee) concurrently with the assignment to Ground Lessee of the ground lessee's interest in that certain Ground Lease dated , by and between ("Owner') and to evidence the acceptance of and agreement of Ground Lessee to the terms of the Declaration by Ground Lessee and further declares for the benefit of the City of Tustin and its successors and assigns the following: (a) Ground Lessee understands and agrees that the benefits of the covenants and restrictions that run with the land and touch and concern the Real Property set forth in the Declaration are made for the enhancement and enjoyment and use of the Real Property and Improvements by Qualified Households which may be entitled to lease Lower Income Units under the terms of this Declaration; (b) the Declaration furthers the public purposes for which the DDA and the Development Agreement were entered into with Initial Owner and Initial Owner thereby entering into the Ground Lease with Ground Lessee its legal interest in the Real Property is rendered less valuable thereby, and (c) Ground Lessee agrees to assume and be bound by the terms of the Declaration as the same apply to the Affordable Parcel and the Improvements on the Affordable Parcel during the term of the Declaration unless and until released by the terms of the Declaration. Notice to the undersigned shall, if required pursuant to the Declaration, be given at the following address: [insert address [Insert name of person signing], is a [insert office held] of Ground Lessee and is in such capacity, duly authorized by Ground Lessee to execute this Certificate. Without the written consent of Ground Lessee, no Persons other than the City and the Tustin Housing Authority may rely on this Certificate for any purpose. Tustin Irvine Co DDA Att 25 Affordable Housing Attachment 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit G /Irvine Co. Por. Disp. Areas 213, 2C and 8 1 Initially capitalized terms used in this Certificate shall have the meanings set forth in the Declaration. GROUND LESSEE [USA PROPERTIES] By: Name: Title: By: Name: Title: Tustin Irvine Co DDA Att 25 Affordable Housing Attachment 25 City of Tustin/Tustin Housing Authority Declaration 03.10.25 (HM)(2) FINAL Exhibit G /Irvine Co. Por. Disp. Areas 213, 2C and 8 2 Attachment 26 - Specimen Insurance Policy Attachment 26 - Specimen Insurance Policy QUOTE ISSUED: 18-Dec-2024 06:06 PM This Quote will remain in effect until 01-Mar-2025. Aon Risk Insurance Services West - San Francisco, CA IRLM Re: The Irvine Company Beazley ECLIPSE ENVIRO COVERED LOCATION INSURANCE POLICY (SITE ENVIRONMENTAL) Covered Location Pollution Liability Quotation #1 Dear Trisha, QUOTE In accordance with your request for a proposal and based on the information submitted, we are pleased to offer the following quote, subject to receipt, review and written acceptance of the following information: A completed, signed and dated Beazley application. A completed, signed and dated TRIA Endorsement. Finalized Purchase and Sale Agreement We are a specialist insurer with more than three decades of experience in providing clients with the highest standards of underwriting and claims service worldwide. All our insurance businesses are rated A (Excellent) by A.M. Best. Insurer: Beazley Excess and Surplus Insurance, Inc. (Non -Admitted) Policy Form: Beazley ECLIPSE - F00738 102019 ed. First Named Insured: The Irvine Company Address: 550 Newport Center Drive Newport Beach, CA 92660 Policy Period: From: TBD To: TBD Both dates at 12:01 AM Local Time at the First Named Insured's Address Commission: _ This quote is through a surplus lines carrier on whose behalf we are authorized to act. Compliance with applicable laws including filings and payment of taxes and fees is the responsibility of the insured, the insurance agent or insurance broker. If coverage is bound, please advise the license number of the producer making the filing. This quote is strictly conditioned upon no material change in risk occurring between the date of this letter and the inception date of the proposed policy (including but not limited to discovery of any pollution condition, notice of any claim or notice of circumstances which may reasonably be expected to give rise to a claim under any policy of which the policy being proposed by this letter is a renewal or replacement). In the event of such change of risk, the Insurer may in its sole discretion, whether or not this offer has already been accepted by the Insured, modify and/or withdraw this offer. In order to complete the underwriting process, we require that you send us any additional information requested above. We are not required to bind prior to our receipt and underwriting approval of the above information. However, if we do bind coverage prior to such approval, the terms and conditions as indicated could be amended until such receipt and acceptance. Please be advised that if coverage is bound, premium must be remitted by the due date on the invoice. ATTACHMENT 26 QUOTESLENV2019 1 Page 1 of 4 INSURED: The Irvine Company This quote will remain in effect until 01-Mar-2025. Thank you for the opportunity to quote. QUOTESLENV2019 ATTACHMENT 26 Page 2 of 4 INSURED: The Irvine Company This quote will remain in effect until 01-Mar-2025. Each Pollution Condition Limit Aggregate Limit for the Policy Period Each Pollution Condition Deductible Premium Term (Years) $10,000,000 $10,000,000 $100,000 10 Policyholder Disclosure Notice of Terrorism Insurance Coverage (Endorsement Attached): This policy provides coverage for loss arising out of "Certified Acts of Terrorism", as that term is defined in The Terrorism Risk Insurance Act of 2002, as amended. This optional coverage may be elected at an additional charge at the time of binding as outlined in the Terms and Conditions. If this coverage is elected, an additional premium will be charged and an endorsement providing this coverage will be added to the policy. If this coverage is rejected, an endorsement rejecting this coverage will be added to the policy. Coverage Coverage Provided? I.A.1. New Pollution Conditions — (BI/PD and Cleanup) Yes I.A.2. New Pollution Conditions — 1 st Party Discovery Yes 1.B.1. Existing Pollution Conditions — (BI/PD and Cleanup) Yes 1.B.2. Existing Pollution Conditions— 1st Party Discovery Yes I.C. Transportation Yes I.D. Non -Owned Location Yes I.E. Crisis and Reputation Management Expense Yes I.F. Business Interruption Costs Yes Terms and Conditions: Period of Restoration: 365 Days I.F. Deductible Period: 3 Days Retroactive Date — I.B.: None Retroactive Date — I.C.: None Retroactive Date — I.D.: None Additional Claims Expenses Limit: Not applicable Crisis and Reputation Expenses Coverage Each Pollution Condition Sublimit: $250,000 Length of Optional Extension Period: 36 Months Premium for Optional Extension Period: 200% of the premium for the Policy Period TRIA - (if elected): 1 % (not included in quoted Premium) Choice of Law: California QUOTESLENV2019 ATTACHMENT 26 Page 3 of 4 3 INSURED: The Irvine Company This quote will remain in effect until 01-Mar-2025. Scheduled Covered Location(s): This quote provides coverage for the following scheduled Covered Location(s): Address City State Zip Code Use Assessor Parcel Number Tustin CA 92782 Vacant land to be 430-481-02, -03, -04, and -05 redeveloped into multifamily residential Endorsements Effective At Inception: 1. A01862CA 012024 ed. California Surplus Lines Disclosure Statement (Pre Bind) 2. A01861CA 012024 ed. California Surplus Lines Notice 1 (Post Bind) 3. A01863 012024 ed. Nuclear Incident Exclusion Clause -Liability -Direct (Broad) (U.S.A.) 4. A01864 012024 ed. Radioactive Contamination Exclusion Clause -Liability -Direct (U.S.A.) 5. A01866 032024 ed. War and Terrorism Exclusion Endorsement 6. E06694 082020 ed. U.S. Terrorism Risk Insurance Act of 2002 As Amended - Not Purchased Clause 7. E06671 082020 ed. Policyholder Disclosure Notice of Terrorism Insurance Coverage 8. E14455 122020 ed. Cyber Acts Clarification Endorsement 9. E12408 012019 ed. Material Change in Use Definition -Permitted Use 10. E12412 012019 ed. Minimum Earned Premium 11. E13328 092019 ed. Microbial Matter Exclusion Prior to Certificate of Occupancy 12. E13560 072021 ed. Specified Activities Exclusion 13. E13050 062019 ed. Amend Failure to Maintain Institutional or Engineering Controls Exclusion Endorsement 14. E15242 012022 ed. Business Interruption Coverage- Certificate Of Occupancy 15. E12416 012019 ed. Insuring Clauses -Different Policy Periods Endorsement 16. E13962 042020 ed. Additional Insured - Liability Arising Out of Named Insured 17. E13571 112019 ed. Designated Government Mandated Trigger -Insuring Clause I.B. 18. E12402 012019 ed. Schedule of Insured Contracts 19. E13568 112019 ed. Designated Delete Insuring Clause I.B.2 Endorsement QUOTESLENV2019 ATTACH4MENT 26 Page 4 of 4 CALIFORNIA SURPLUS LINES DISCLOSURE STATEMENT (PRE BIND) IMPORTANT NOTICE: 1. The insurance policy that you are applying to purchase is being issued by an insurer that is not licensed by the State of California. These companies are called "nonadmitted" or "surplus line" insurers. 2. The insurer is not subject to the financial solvency regulation and enforcement that apply to California licensed insurers. 3. The insurer does not participate in any of the insurance guarantee funds created by California law. Therefore, these funds will not pay your claims or protect your assets if the insurer becomes insolvent and is unable to make payments as promised. 4. The insurer should be licensed either as a foreign insurer in another state in the United States or as a non -United States (alien) insurer. You should ask questions of your insurance agent, broker, or "surplus line" broker or contact the California Department of Insurance at the toll -free number 1- 800-927-4357 or internet website www.insurance.ca.gov. Ask whether or not the insurer is licensed as a foreign or non - United States (alien) insurer and for additional information about the insurer. You may also visit the NAIC's internet website at www.naic.org. The NAIC—the National Association of Insurance Commissioners —is the regulatory support organization created and governed by the chief insurance regulators in the United States. 5. Foreign insurers should be licensed by a state in the United States and you may contact that state's department of A01862CA ATTACHMENT 26 Page 1 of 2 012024 ed. 5 insurance to obtain more information about that insurer. You can find a link to each state from this NAIC internet website: https://naic.org/state_web—map.htm. 6. For non -United States (alien) insurers, the insurer should be licensed by a country outside of the United States and should be on the NAIC's International Insurers Department (IID) listing of approved nonadmitted non -United States insurers. Ask your agent, broker, or "surplus line" broker to obtain more information about that insurer. 7. California maintains a "List of Approved Surplus Line Insurers (LASLI)." Ask your agent or broker if the insurer is on that list, or view that list at the internet website of the California Department of Insurance: www.insurance.ca.gov/01-consumers/120-company/07- lasli/lasli.cfm. 8. If you, as the applicant, required that the insurance policy you have purchased be effective immediately, either because existing coverage was going to lapse within two business days or because you were required to have coverage within two business days, and you did not receive this disclosure form and a request for your signature until after coverage became effective, you have the right to cancel this policy within five days of receiving this disclosure. If you cancel coverage, the premium will be prorated and any broker's fee charged for this insurance will be returned to you. Date: Insured: A01862CA ATTACHMENT 26 Page 2 of 2 012024 ed. 6 CALIFORNIA SURPLUS LINES NOTICE 1 (POST BIND) IMPORTANT NOTICE: 1. The insurance policy that you have purchased is being issued by an insurer that is not licensed by the state of California. These companies are called "nonadmitted" or "surplus line" insurers. - 11 2. The insurer is not subject to the financial solvency regulation and enforcement that apply to California licensed insurers. 3. The insurer does not participate in any of the insurance guarantee funds created by California law. Therefore, these funds will not pay your claims or protect your assets if the insurer becomes insolvent and is unable to make payments as promised. 4. The insurer should be licensed either as a foreign insurer in another state in the United States or as a non -United States (alien) insurer. You should ask questions of your insurance agent, broker, or "surplus line" broker or contact the California Department of Insurance at the toll -free number 1- 800-927-4357 or internet website www.insurance.ca.Loy. Ask whether or not the insurer is licensed as a foreign or non - United States (alien) insurer and for additional information about the insurer. You may also visit the NAIC's internet website at www.naic.org. The NAIC—the National Association of Insurance Commissioners —is the regulatory support organization created and governed by the chief insurance regulators in the United States. 5. Foreign insurers should be licensed by a state in the United States and you may contact that state's department of A01861 CA Page 1 of 2 012024 ed. ATTACHMENT 26 7 insurance to obtain more information about that insurer. You can find a link to each state from this NAIC internet website: https://naic.org/state_web—map.htm. 6. For non -United States (alien) insurers, the insurer should be licensed by a country outside of the United States and should be on the NAIC's International Insurers Department (IID) listing of approved nonadmitted non -United States insurers. Ask your agent, broker, or "surplus line" broker to obtain more information about that insurer. 7. California Maintains A "List Of Approved Surplus Line Insurers (LASLI)." Ask your agent or broker if the insurer is on that list, or view that list at the internet web site of the California Department of Insurance: www.insurance.ca.gov/01-consumers/120-company/07- lasli/lasli.cfm. 8. If you, as the applicant, required that the insurance policy you have purchased be effective immediately, either because existing coverage was going to lapse within two business days or because you were required to have coverage within two business days, and you did not receive this disclosure form and a request for your signature until after coverage became effective, you have the right to cancel this policy within five days of receiving this disclosure. If you cancel coverage, the premium will be prorated and any broker's fee charged for this insurance will be returned to you. A01861CA ATTACHMENT 26 Page 2 of 2 012024 ed. 8 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" NUCLEAR INCIDENT EXCLUSION CLAUSE -LIABILITY -DIRECT (BROAD) (U.S.A. This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that: For attachment to insurances of the following classifications in the U.S.A., its Territories and Possessions, Puerto Rico and the Canal Zone: Owners, Landlords and Tenants Liability, Contractual Liability, Elevator Liability, Owners or Contractors (including railroad) Protective Liability, Manufacturers and Contractors Liability, Product Liability, Professional and Malpractice Liability, Storekeepers Liability, Garage Liability, Automobile Liability (including Massachusetts Motor Vehicle or Garage Liability), not being insurances of the classifications to which the Nuclear Incident Exclusion Clause -Liability -Direct (Limited) applies. This Policy* does not apply: 1. Under any Liability Coverage, to injury, sickness, disease, death or destruction: (a) with respect to which an insured under the Policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability; or (b) resulting from the hazardous properties of nuclear material and with respect to which (1) any person or organization is required to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (2) the insured is, or had this Policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization. 2. Under any Medical Payments Coverage, or under any Supplementary Payments Provision relating to immediate medical or surgical relief, to expenses incurred with respect to bodily injury, sickness, disease or death resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization. 3. Under any Liability Coverage, to injury, sickness, disease, death or destruction resulting from the hazardous properties of nuclear material, if: (a) the nuclear material (1) is at any nuclear facility owned by, or operated by or on behalf of, an insured or (2) has been discharged or dispersed therefrom; (b) the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or (c) the injury, sickness, disease, death or destruction arises out of the furnishing by an insured of services, materials, parts or equipment in connection with the planning, A01863 Page 1 of 3 012024 ed. ATTACHMENT 26 9 construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories or possessions or Canada, this exclusion (c) applies only to injury to or destruction of property at such nuclear facility. 4. As used in this endorsement: "hazardous properties" include radioactive, toxic or explosive properties; "nuclear material" means source material, special nuclear material or by-product material; "source material", "special nuclear material", and "by-product material' have the meanings given them in the Atomic Energy Act 1954 or in any law amendatory thereof; "spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor; "waste" means any waste material (1) containing by-product material and (2) resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under paragraph (a) or (b) thereof; "nuclear facility" means: (a) any nuclear reactor, (b) any equipment or device designed or used for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel, or (3) handling, processing or packaging waste, (c) any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235, (d) any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; "nuclear reactor" means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material. With respect to injury to or destruction of property, the word "injury" or "destruction" includes all forms of radioactive contamination of property. It is understood and agreed that, except as specifically provided in the foregoing to the contrary, this clause is subject to the terms, exclusions, conditions and limitations of the Policy to which it is attached. * NOTE: As respects policies which afford liability coverages and other forms of coverage in addition, the words underlined should be amended to designate the liability coverage to which this clause is to apply. A01863 ATTACHMENT 26 Page 2 of 3 012024 ed. 10 All other terms and conditions of this Policy remain unchanged. Authorized Representative A01863 ATTACHMENT 26 Page 3 of 3 012024 ed. 11 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" RADIOACTIVE CONTAMINATION EXCLUSION CLAUSE -LIABILITY -DIRECT (U.S.A.) This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that: For attachment (in addition to the appropriate Nuclear Incident Exclusion Clause -Liability -Direct) to liability insurances affording worldwide coverage. In relation to liability arising outside the U.S.A., its Territories or Possessions, Puerto Rico or the Canal Zone, this Policy does not cover any liability of whatsoever nature directly or indirectly caused by or contributed to by or arising from ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel. All other terms and conditions of this Policy remain unchanged. 0" a Authorized Representative rT A01864 ATTACHMENT 26 Page 1 of 1 012024 ed. 12 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" WAR AND TERRORISM EXCLUSION ENDORSEMENT This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE 00, Notwithstanding any provision to the contrary within this insurance or any endorsement thereto it is agreed that this insurance excludes loss, damage, cost or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any of the following regardless of any other cause or event contributing concurrently or in any other sequence to the loss; war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or 2. any act of terrorism. For the purpose of this endorsement an act of terrorism means an act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organisation(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear. This endorsement also excludes loss, damage, cost or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, suppressing or in any way relating to 1 and/or 2 above. If the Underwriters allege that by reason of this exclusion, any loss, damage, cost or expense is not covered by this insurance the burden of proving the contrary shall be upon the Assured. In the event any portion of this endorsement is found to be invalid or unenforceable, the remainder shall remain in full force and effect. All other terms and conditions of this Policy remain unchanged. /V - Authorized Represen ative A01866 ATTACHMENT 26 Page 1 of 1 032024 ed. 13 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" U.S. TERRORISM RISK INSURANCE ACT OF 2002 AS AMENDED NOT PURCHASED CLAUSE This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE This Clause is issued in accordance with the terms and conditions of the "U.S. Terrorism Risk Insurance Act of 2002" as amended as summarized in the disclosure notice. It is hereby noted that the Underwriters have made available coverage for any amounts insured by this Insurance directly resulting from an "act of terrorism" as defined in the "U.S. Terrorism Risk Insurance Act of 2002", as amended ("TRIA") and the Insured has declined or not confirmed to purchase this coverage. This Insurance therefore affords no coverage for any amounts insured by this Insurance directly resulting from any "act of terrorism" as defined in TRIA except to the extent, if any, otherwise provided by this policy. �T All other terms, conditions, insured coverage and exclusions of this Insurance including applicable limits and deductibles remain unchanged and apply in full force and effect to the coverage provided by this Insurance. All other terms, exclusions and conditions of the policy remain unchanged. (LMA 5390) !f Authorized Represen ative E06694 ATTACHMENT 26 Page 1 of 1 082020 ed. 14 POLICYHOLDER DISCLOSURE NOTICE OF TERRORISM INSURANCE COVERAGE You are hereby notified that under the Terrorism Risk Insurance Act of 2002, as amended ("TRIA"), that you now have a right to purchase insurance coverage for losses arising out of acts of terrorism, as defined in Section 102(1) of the Act, as amended: The term "act of terrorism" means any act that is certified by the Secretary of the Treasury, in consultation with the Secretary of Homeland Security and the Attorney General of the United States, to be an act of terrorism; to be a violent act or an act that is dangerous to human life, property, or infrastructure; to have resulted in damage within the United States, or outside the United States in the case of an air carrier or vessel or the premises of a United States mission; and to have been committed by an individual or individuals, as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion. Any coverage you purchase for "acts of terrorism" shall expire at 12:00 midnight December 31, 2027, the date on which the TRIA Program is scheduled to terminate, or the expiry date of the policy whichever occurs first, and shall not cover any losses or events which arise after the earlier of these dates. YOU SHOULD KNOW THAT COVERAGE PROVIDED BY THIS POLICY FOR LOSSES CAUSED BY CERTIFIED ACTS OF TERRORISM IS PARTIALLY REIMBURSED BY THE UNITED STATES UNDER A FORMULA ESTABLISHED BY FEDERAL LAW. HOWEVER, YOUR POLICY MAY CONTAIN OTHER EXCLUSIONS WHICH MIGHT AFFECT YOUR COVERAGE, SUCH AS AN EXCLUSION FOR NUCLEAR EVENTS. UNDER THIS FORMULA, THE UNITED STATES PAYS 80%; OF COVERED TERRORISM LOSSES EXCEEDING THE STATUTORILY ESTABLISHED DEDUCTIBLE PAID BY THE INSURER(S) PROVIDING THE COVERAGE. YOU SHOULD ALSO KNOW THAT THE TERRORISM RISK INSURANCE ACT, AS AMENDED, CONTAINS A USD100 BILLION CAP THAT LIMITS U.S. GOVERNMENT REIMBURSEMENT AS WELL AS INSURERS' LIABILITY FOR LOSSES RESULTING FROM CERTIFIED ACTS OF TERRORISM WHEN THE AMOUNT OF SUCH LOSSES IN ANY ONE CALENDAR YEAR EXCEEDS USD100 BILLION. IF THE AGGREGATE INSURED LOSSES FOR ALL INSURERS EXCEED USD100 BILLION, YOUR COVERAGE MAY BE REDUCED. THE PREMIUM CHARGED FOR THIS COVERAGE IS PROVIDED BELOW AND DOES NOT INCLUDE ANY CHARGES FOR THE PORTION OF LOSS COVERED BY THE FEDERAL GOVERNMENT UNDER THE ACT. I hereby elect to purchase coverage for acts of terrorism for a prospective premium of 1 %. I hereby elect to have coverage for acts of terrorism excluded from my policy. I understand that I will have no coverage for losses arising from acts of terrorism. Policyholder/Applicant's Signature Beazley Excess and Surplus Insurance, Inc Print Name Policy Number Date (LMA 9184) E06671 ATTACHMENT 26 Page 1 of 1 082020 ed. 15 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" CYBER ACTS CLARIFICATION ENDORSEMENT This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE It is hereby understood and agreed that this Policy does not contain a specific exclusion for cyber acts or cyber incidents. Subject to all the terms and conditions of this Policy, coverage shall be provided under this Policy for any Pollution Condition in connection with a cyber act or cyber incident, whether involving malicious or non - malicious events. Nothing in this Endorsement creates coverage not otherwise provided under this Policy. /U ' Authorized Represen ative rr E14455 ATTACHMENT 26 Page 1 of 1 122020 ed. 16 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" MATERIAL CHANGE IN USE DEFINITION — PERMITTED USE This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that the following is added to Clause III. DEFINITIONS, S. Material Change in Use: I A Material Change in Use shall also mean any change in the use of, or operations at, a Covered Location from the Specified Use described below: Specified Use Vacant land to be redeveloped into multi -family residential All other terms and conditions of this Policy remain unchanged. Authorized Represen ative m c� rr E12408 ATTACHMENT 26 Page 1 of 1 17 012019 ed. Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" MINIMUM EARNED PREMIUM This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for this Policy, it is hereby understood and agreed that in the event of cancellation pursuant to Cause XV. CANCELLATION, this Policy shall be subject to a minimum earned premium pursuant to the schedule below: 50% at the Inception Date of the Policy; 100% at the end of Year 1 All percentages above are percentages of the amount shown in Item 5. of the Declarations. However, in the event a Claim or a Pollution Condition has been reported to the Underwriters pursuant to the terms of this Policy, then the Policy will be subject to a minimum earned premium of 100% at the Inception Date of the Policy. All other terms and conditions of this Policy remain unchanged. iM - Authorized Represen ative E12412 ATTACHMENT 26 Page 1 of 1 012019 ed. 18 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" MICROBIAL MATTER EXCLUSION PRIOR TO CERTIFICATE OF OCCUPANCY This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy it is hereby understood and agreed that: 1. Clause VI. EXCLUSIONS is amended by the addition of the following: :n Microbial Matter arising out of or resulting from the existence, exposure to, required removal or abatement of any Microbial Matter or legionella pneumophilia regardless of the cause of such Microbial Matter or legionella pneumophilia, associated with the Covered Location(s) scheduled below, which is/are discovered or encountered or which occur during any construction, renovation or repair including, but not limited to, structural or amenity upgrades, replacements, refurbishment, or building improvements. Covered Location(s) 2. It is further understood and agreed that for purposes of this Endorsement, any reference to Microbial Matter and "legionella pneumophilia" are deleted in their entirety from Clause III. DEFINITION, Z. "Pollution Condition". Following the construction and/or renovation of the Covered Location(s) scheduled above, this exclusion shall be automatically deemed deleted in its entirety from the Policy as of the date the Insured receives a certificate of occupancy from the applicable regulatory authorities. All other terms and conditions of this Policy remain unchanged. ' &hec=7�- Authorized Represen ative E13328 ATTACHMENT 26 Page 1 of 1 092019 ed. Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" SPECIFIED ACTIVITIES EXCLUSION This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for this policy, it is hereby understood and agreed that solely with respect to Cleanup Costs, and Claims Expenses arising therefrom, under Insuring Clause I.B., the following is added to Clause VI. EXCLUSIONS: Specified Activities For, arising out of or resulting from: ❑x A. The removal, transportation or disposal of any material located below grade that is required by, related to, arises from, or is in any way associated with any construction or development activities at a Covered Location. However, this subparagraph shall not apply to the extent (i) such material is beyond the horizontal and vertical boundaries of the excavation or removal activities physically or geotechnically required for construction or development activities at a Covered Location, and (ii) an Insured is legally obligated to remove such material pursuant to Environmental Law; ❑x B. Dewatering activities, including transportation or disposal of water or soil generated during dewatering activities, at a Covered Location; ❑x C. The removal, transportation or disposal of building materials, including but not limited to building pads/slabs, foundations, piping, sumps, pits and vaults that may exist from previous structures which are generated as part of or in preparation for site development, site grading, razing or construction of any structures all of which would not have been necessary in the absence of development or construction activities at a Covered Location; and/or ❑ D. Any type of active or passive vapor mitigation system, vapor barrier, or other sub -slab depressurization system, on, at, under the Covered Location. THE PRECEEDING EXCLUSION SUBSECTION(S) ARE IN EFFECT IF DENOTED WITH A CHECKMARK. E13560 ATTACHMENT 26 Page 1 of 2 072021 ed. 20 All other terms and conditions of this Policy remain unchanged. Authorized Represen ative E13560 ATTACHMENT 26 Page 2 of 2 072021 ed. 21 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" AMEND FAILURE TO MAINTAIN INSTITUTIONAL OR ENGINEERING CONTROLS EXCLUSION ENDORSEMENT This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that Clause VI. EXCLUSIONS, L. is deleted in its entirety and replaced with the following: Failure to Maintain Institutional Controls or Engineering Controls arising out of or resulting from: 17 the failure by any Insured, or its representatives, to implement, install, operate, monitor, maintain or enforce Institutional Controls or Engineering Controls for a Covered Location; or 2. any ongoing or necessary costs associated with implementing, designing, installing, operating, monitoring, maintaining or enforcing Institutional Controls or Engineering Controls. All other terms and conditions of this Policy remain unchanged. /V !f Authorized Representative m z E13050 ATTACHMENT ENT 26 Page 1 of 1 062019 ed. Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. Referred to in this endorsement as either the "Insurer" or the "Underwriters" BUSINESS INTERRUPTION COVERAGE- CERTIFICATE OF OCCUPANCY This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for this Policy, it is hereby understood and agreed that Clause I. INSURING CLAUSE, F. is deleted in its entirety and replaced by the following: F. Business Interruption Costs Coverage To pay the Named Insured Business Interruption Costs caused directly by a Pollution Condition on, at or under a Covered Location, provided that: such Pollution Condition results in Cleanup Costs covered under Insuring Clause I.A or 1.13 of this Policy; 2. the Insured receives a Certificate of Occupancy for such Covered Location from all applicable regulatory authorities prior to incurring such Business Interruption Costs; and 3. the Business Interruption Costs are reported, in writing, to the Underwriters during the Policy Period. In the event that Business Interruption Costs are caused by a Pollution Condition and some other cause(s), the Underwriters shall only provide coverage for that portion of Business Interruption Costs caused solely by the Pollution Condition. All other terms and conditions of this Policy remain unchanged. Authorized Represen ative E15242 ATTACHMENT ENT 26 Page 1 of 1 012022 ed. Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" INSURING CLAUSES - DIFFERENT POLICY PERIODS ENDORSEMENT This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that: 1) 1. Solely with respect to Microbial Matter and Iegionella pneumophilia, Item 2. of the Declarations is deleted in its entirety and replaced with the following: Item 2. Policy Period: From: Date of Certificate of Occupancy To: 5 years post Certificate of Occupancy 'Mr All dates above at 12:01 a.m. Local Time at the Address stated in Item 1. 2. Notwithstanding the above, if the Aggregate Limit of Liability set forth in Item 3. of the Declarations is exhausted prior to the Expiration Date set forth in Item 2., as modified above by this Endorsement, due to payment of any amounts provided coverage under any Insuring Clause of this Policy, the Underwriter's obligations under this Policy shall be completely fulfilled and extinguished. All Insureds expressly agree that the Aggregate Limit of Liability set forth in Item 3. of the Declarations will not be reinstated at anytime, for any reason whatsoever, during the remainder of the Policy Period. All other terms and conditions of this Policy remain unchanged. Authorized Representative E12416 ATTACHMENT 26 Page 1 of 1 012019 ed. 24 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" ADDITIONAL INSURED - LIABILITY ARISING OUT OF NAMED INSURED This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that Clause III. DEFINITIONS, Definition P. "Insured" is amended to include the following person(s) or entity(ies): City of Tustin but only: 7 to the extent of liability arising out of any Named Insured's ownership, operation, maintenance or use of a Covered Location not otherwise excluded under this Policy, and excluding any liability arising from any act, error, omission or negligence of the entity(ies) scheduled under this Endorsement; and 2. if the entity(ies) scheduled under this Endorsement is/are named in a Claim as a co-defendant with the Named Insured, alleging that such entity(ies) is/are liable on the basis described in paragraph 1. above. All other terms and conditions of this Policy remain unchanged. Authorized Represen ative E13962 ATTACHMENT 26 Page 1 of 1 042020 ed. 25 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" DESIGNATED GOVERNMENT MANDATED TRIGGER — INSURING CLAUSE I.B. This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for this Policy, it is hereby understood and agreed that: 1. Clause I. INSURING CLAUSES, Paragraph B. is deleted in its entirety and replaced by the following: B. Covered Location Pollution Liability Coverage - Existing Pollution Conditions To pay on behalf of the Insured: 1. Damages and Claims Expenses arising therefrom, in excess of the Deductible which the Insured shall become legally obligated to pay because of a Claim for a Pollution Condition, and/or 2. Cleanup Costs and Claims Expenses arising therefrom, in excess of the Deductible which the Insured shall become legally obligated to pay because of a Claim by any governmental agency acting under the authority of Environmental Laws for a Pollution Condition, Provided that: a. such Claim is first made against the Insured and reported, in writing, to the Underwriters during the Policy Period; or within the Extended Reporting Period, if applicable; b. neither the Insured, nor anyone acting on behalf of the Insured, has approached or contacted any governmental agency regarding such Pollution Condition or otherwise requested or solicited such Claim; c. the Claim, if by any governmental agency, was not asserted because of any Insured's failure to comply with any statute, regulation, ordinance, administrative complaint, notice of violation, notice letter, order, instruction or directive issued by or on behalf of any governmental agency or representative; and d. such Pollution Condition: i first commenced on or after the Retroactive Date, if any, set forth in Item 6.(a) of the Declarations and before the Inception Date set forth in Item 2. of the Declarations; and ii. is on, at, under or migrated from a Covered Location. 2. Solely with respect to I. INSURING CLAUSE , Paragraph B. as modified by paragraph 1. above, Clause III. DEFINITIONS, G. "Cleanup Costs" is deleted in its entirety and replaced with the following: G. "Cleanup Costs" means: E13571 ATTACHMENT 26 Page 1 of 3 112019 ed. 26 reasonable and necessary costs, charges and expenses incurred (if by an Insured, then only with the prior written consent of the Underwriters, such consent not to be unreasonably withheld or delayed) in the investigation, assessment, removal, disposal, abatement, containment, treatment, remediation (including the associated testing and monitoring) or neutralization of a Pollution Condition, to the extent required by Environmental Laws; or with respect to Microbial Matter, methamphetamines or other chemicals associated with methamphetamine laboratories, and legionella pneumophilia, and in the absence of applicable Environmental Law, reasonable and necessary costs, charges and expenses required by Indoor Air Quality Clean -Up Standards; 2. payments for civil fines, civil penalties, punitive damages, exemplary damages or any damages which are a multiple of compensatory damages, to the extent insurable by law, but only in connection with a Claim for Cleanup Costs provided coverage under subparagraph 1.; 3. reasonable and necessary fees charged by an attorney designated or consented to by the Underwriters, such consent not to be unreasonably withheld or delayed, incurred in connection with any such Cleanup Costs; and 4. reasonable and necessary Restoration Costs; However, this endorsement applies solely to the schedule below: E13571 ATTACHMENT 26 Page 2 of 3 112019 ed. 27 Schedule Not Applicable Covered Location Not Applicable Named Insureds Not Applicable Insureds Applies solely with respect Pollution Condition(s), including any perfluorinated chemicals (PFC) or to breakdown, daughter or derivative per and polyfluoroalkyl substances products of such Pollution (PFAS), including, but not limited to, Condition(s) perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA), perfluorobutane sulfonate (PFBS), perfluoroalkyl acid (PFAA), C-8 or C8, GenX, including hexafluoropropylene oxide (HFPO), perfluorohexanoic acid (PFHxA), perfluorohexane sulfonate (PFHxS), perfluoronononaoic acid (PFNA), fluoroalkanoic acid, perfluoroheptanoic acid (PFHPA), perfluorobutane sulfonic acid (PFBS), and fluorinated surfactants and repellents, and any precursor of any such chemicals, substances or compounds, any additive to any such chemicals, substances or compounds, any daughter compound, degradation by-product or derivative of any such chemicals, substances or compounds, any other replacement PFC or PFAS, or any fire -fighting or fire -suppression foam, chemicals or products Not Applicable Pollution Condition(s), including any breakdown, daughter or derivative products of such Pollution Condition(s), in the following media All other terms and conditions of this Policy remain unchanged. Authorized Represen ative E13571 ATTACHMENT 26 Page 3 of 3 112019 ed. Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" SCHEDULE OF INSURED CONTRACTS This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that with respect to Clause VI. EXCLUSIONS, D. Assumption of Contractual Liability of Others, Subparagraph 2., the following Schedule of Insured Contracts is added to this Policy: Schedule of Insured Contracts TBD but only to the extent that any indemnity or contractual liability assumed thereby is consistent with liability expressly covered and not otherwise excluded from coverage provided in this Policy. All other terms and conditions of this Policy remain unchanged. Authorized Represen ative M z E12402 ATTACHMENT 26 Page 1 of 1 012019 ed. 29 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" DESIGNATED DELETE INSURING CLAUSE I.B.2 ENDORSEMENT This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that Clause I. INSURING CLAUSE B. Covered Location Pollution Liability Coverage - Existing Pollution Conditions, subparagraph 2. is deleted in its entirety. However, this endorsement applies solely to the schedule below: Schedule Not Applicable Covered Location Not Applicable Named Insureds Not Applicable Insureds Not Applicable Pollution Condition(s), including any breakdown, daughter or derivative products of such Pollution Condition(s) Applies solely with respect Pollution Condition(s), including any to breakdown, daughter or derivative products of such Pollution Condition(s). in the followina media All other terms and conditions of this Policy remain unchanged. Authorized Represen ative Groundwater U m z E13568 ATTACH3Mo ENT 26 Page 1 of 1 112019 ed. BEAZLEY ECLIPSE ENVIRO COVERED LOCATION INSURANCE POLICY (SITE ENVIRONMENTAL) NOTICE: This Policy provides coverage on a Discovery and/or Claims Made and Reported Basis and the payment of Claims Expenses reduces the applicable Limits of Liability. Please review the coverage afforded under this Insurance Policy (hereinafter referred to as the "Policy" or "Insurance") carefully and discuss the coverage hereunder with your insurance agent or broker. In consideration of the payment of the premium and reliance upon the statements in the Application, which is deemed a part of this Insurance Policy and subject to the Limit of Liability, Deductible, Exclusions, conditions and other terms of this Insurance, the Underwriters agree with the First Named Insured as follows: INSURING CLAUSE THE FOLLOWING COVERAGES ARE IN EFFECT ONLY IF INDICATED WITH A "YES" IN ITEM 13. OF THE DECLARATIONS. A. Covered Location Pollution Liability Coverage - New Pollution Conditions To pay on behalf of the Insured: Cleanup Costs, Damages and Claims Expenses, in excess of the Deductible, which the Insured shall become legally obligated to pay because of a Claim for a Pollution Condition first made against the Insured and reported in writing to the Underwriters during the Policy Period; or within the Extended Reporting Period, if applicable; and/or 2. Cleanup Costs, in excess of the Deductible, because of a Pollution Condition first discovered by the Insured and reported in writing to the Underwriters during the Policy Period; or within the Extended Reporting Period, if applicable; provided that, such Pollution Condition: a. first commenced on or after the Inception Date stated in Item 2. of the Declarations and before the end of the Policy Period; and b. is on, at, under or migrated from a Covered Location. F00738 ATTACHMENT 26 Page 1 of 24 102019 ed. 31 B. Covered Location Pollution Liability Coverage - Existing Pollution Conditions To pay on behalf of the Insured: Cleanup Costs, Damages and Claims Expenses, in excess of the Deductible which the Insured shall become legally obligated to pay because of a Claim for a Pollution Condition first made against the Insured and reported in writing to the Underwriters during the Policy Period; or within the Extended Reporting Period, if applicable; and/or 2. Cleanup Costs, in excess of the Deductible, because of a Pollution Condition first discovered by the Insured and reported in writing to the Underwriters during the Policy Period; or within the Extended Reporting Period, if applicable; provided that, such Pollution Condition: a. first commenced on or after the Retroactive Date, if any, set forth in Item 6.(a) of the Declarations and before the Inception Date stated in Item 2. of the Declarations; and b. is on, at, under or migrated from a Covered Location. C. Transportation Pollution Liability Coverage To pay on behalf of the Insured: Cleanup Costs, Damages and Claims Expenses, in excess of the Deductible, which the Insured shall become legally obligated to pay because of a Claim for a Pollution Condition first made against the Insured and reported in writing to the Underwriters during the Policy Period, or within the Extended Reporting Period, if applicable, wholly occurring during and resulting solely from Transportation; provided that such Pollution Condition first commenced on or after the Retroactive Date set forth in Item 6.(b) of the Declarations and before the end of the Policy Period. This Insuring Clause shall not be utilized to evidence financial responsibility of any Insured under any federal, state, provincial or local law. D. Non -Owned Location Pollution Liability Coverage To pay on behalf of the Insured: Cleanup Costs, Damages and Claims Expenses, in excess of the Deductible, which the Insured shall become legally obligated to pay because of a Claim for a Pollution Condition first made against the Insured and reported in writing to the Underwriters during the Policy Period, or within the Extended Reporting Period, if applicable, provided that such Pollution Condition: first commenced on or after the Retroactive Date stated in Item 6.(c) of the Declarations and before the end of the Policy Period; and 2. is on, at, under or migrated from a Non -Owned Location. F00738 ATTACHMENT 26 Page 2 of 24 102019 ed. 32 E. Crisis and Reputation Management Expenses Coverage To pay the Named Insured Crisis Management Expenses and/or Reputation Management Expenses in excess of the Deductible because of a Pollution Condition that is on, at, under or migrated from a Covered Location that: is the subject of material adverse regional or national news media coverage for the Named Insured; 2. results in Cleanup Costs and/or Damages for a Pollution Condition that is reported to the Underwriters and covered under Insuring Clause LA or I.B of the Policy; and 3. the Crisis Management Expenses and/or Reputation Management Expenses are reported, in writing, to the Underwriters during the Policy Period and within seventy-two (72) hours after the Named Insured incurs or assumes Reputation Management Expenses and/or Crisis Management Expenses during the Policy Period. In the event that Crisis Management Expenses and/or Reputation Management Expenses are caused by a Pollution Condition and some other cause(s), the Underwriters shall only provide coverage for that portion of Crisis Management Expenses and/or Reputation Management Expenses caused solely by the Pollution Condition. F. Business Interruption Costs Coverage To pay the Named Insured Business Interruption Costs caused directly by a Pollution Condition on, at or under a Covered Location, provided that: such Pollution Condition results in Cleanup Costs covered under Insuring Clause I.A or 1.13 of this Policy; and 2. the Business Interruption Costs are reported, in writing, to the Underwriters during the Policy Period. In the event that Business Interruption Costs are caused by a Pollution Condition and some other cause(s), the Underwriters shall only provide coverage for that portion of Business Interruption Costs caused solely by the Pollution Condition. II. SUPPLEMENTARY PAYMENTS Supplementary Payments made under this Clause are not subject to the Deductible set forth in Item 4. of the Declarations and are payable by the Underwriters in addition to the Limits of Liability as set forth in Clause VI I. Defendants Reimbursement Upon the Underwriters' request, the Insured shall attend mediation meetings, arbitration proceedings, hearings, depositions and trials relative to the defense of a Claim. Beginning on the fourth day of attendance, the Underwriters shall reimburse the Insured, upon written request, for actual loss of earnings and reasonable expenses that result from such attendance. The maximum aggregate amount that the Underwriters shall reimburse is $500 total per day for all Insureds, subject to a maximum aggregate amount of $10,000 for each Claim. F00738 ATTACHMENT 26 Page 3 of 24 102019 ed. 33 III. DEFINITIONS Wherever used in this Policy in bold face type, the following definitions shall apply A. "Application" means all signed applications, including all attachments and other materials submitted therewith or incorporated therein, and any other such documents submitted prior to the date the Policy, or as applicable, a post binding Covered Location, was bound, in connection with the underwriting of this Policy, including any endorsement or other part thereof, or any other policy issued by the Underwriters, of which this Policy is a renewal, replacement or which it succeeds in time. B. "Bodily Injury" means physical injury, sickness or disease, including death resulting therefrom, and any accompanying mental anguish, emotional distress or shock sustained by any person. C. "Business Interruption Costs" means the sum of the following: the Named Insured's net income, which is calculated as net profit, if any, that would have been earned before taxes (or if there is a net loss before taxes, the net loss is deducted); 2. the Named Insured's continuing normal operating expenses incurred excluding payroll not deducted in 1. above; 3. Extra Expense; and 4. Rental Value due to the reasonable and necessary suspension of the Named Insured's business operations during the Period of Restoration at a Covered Location. These sums will be reduced to the extent that the Named Insured can resume business operations, in whole or in part, at the Covered Location, or by making use of other location(s). Business Interruption Costs shall not include any costs associated with: 1) costs incurred as a result of unfavorable business conditions, 2) loss of market or any other consequential loss, 3) costs associated with crisis management or reputational damage, 4) revoked or modified licenses, permits or, similar types of authorizations from a governmental agency, 5) legal costs or legal expenses, or 6) any costs associated with preventing any Pollution Condition. D. "Cargo" means waste, materials, goods or products transported by automobile, aircraft, watercraft or rolling stock for delivery by a Named Insured, or a third party carrier on the Named Insured's behalf, provided that the Named Insured or third party carrier is properly licensed to transport such waste, materials, goods or products. E. "Claim" means: a written demand received by an Insured for money or services or alleging liability or responsibility, including, but not limited to, the service of suit or institution of arbitration proceedings; or 2. a court or government agency order or government or regulatory action filed against the Insured. F00738 ATTACHMENT 26 Page 4 of 24 102019 ed. F. "Claims Expenses" means: reasonable and necessary fees charged by an attorney designated or consented to by the Underwriters, such consent not to be unreasonably withheld or delayed; 2. all other fees, costs and expenses resulting from the investigation, adjustment, defense and appeal of a Claim arising in connection therewith, if incurred by the Underwriters, or by the Insured with the prior written consent of the Underwriters, such consent not to be unreasonably withheld or delayed; and 3. premiums for appeal bonds for judgments or bonds to release property used to secure a legal obligation, if required for a Claim against any Insured for a Pollution Condition to which this Insurance applies, provided, however, that the Underwriters shall have no obligation to appeal the underlying judgment or to obtain such bonds. Except as set forth in Clause II., Claims Expenses do not include any goods supplied or services performed by the staff or salaried employees of the Insured in connection with the investigation, adjustment, defense or appeal of a Claim noticed under this Insurance or in connection with the investigation or remediation of a Pollution Condition. G. "Cleanup Costs" means: reasonable and necessary costs, charges and expenses incurred (if by an Insured, then only with the prior written consent of the Underwriters, such consent not to be unreasonably withheld or delayed) in the investigation, assessment, removal, disposal, containment, treatment, remediation (including the associated testing and monitoring) or neutralization of a Pollution Condition, to the extent required by Environmental Laws, required by a Licensed Site Professional or required to satisfy the Insured's obligations under a federal or state voluntary cleanup program, or with respect to Microbial Matter, methamphetamines or other chemicals associated with methamphetamine laboratories, and legionella pneumophilia, reasonable and necessary costs, charges and expenses required by Indoor Air Quality Clean - Up Standards; 2. payments for civil fines, civil penalties, punitive damages, exemplary damages or any damages which are a multiple of compensatory damages, to the extent insurable by law, but only in connection with a Claim for Cleanup Costs covered under subparagraph 1. above; 3. reasonable and necessary fees charged by an attorney designated or consented to by the Underwriters, such consent not to be unreasonably withheld or delayed, incurred in connection with any such Cleanup Costs; 4. reasonable and necessary Restoration Costs; and 5. reasonable and necessary expenses incurred to respond to an imminent and substantial endangerment to the public health or welfare or to the environment because of a Pollution Condition; provided that, the Named Insured shall forward written notice to the Underwriters of any action taken and expense incurred pursuant to this section as soon as practicable, but in no event later than seventy-two (72) hours after any such Cleanup Costs have been incurred or assumed. F00738 ATTACHMENT 26 Page 5 of 24 102019 ed. 35 H. "Covered Location" means any location specified in Item 9. of the Declarations or in a Covered Location Endorsement attached to this Policy. I. "Crisis Management Expenses" means the following reasonable fees, costs, charges and expenses of a qualified and licensed crisis management firm incurred by the Named Insured during a Period of Crisis for: 1. medical expenses; 2. funeral expenses; 3. psychological counseling; 4. travel expenses; 5. temporary living expenses; and 6. security expenses; Crisis Management Expenses do not include Reputation Management Expenses, Damages, Cleanup Costs, Business Interruption Costs or any Claims Expenses. J. "Damages" means a monetary judgment, award or settlement of compensatory damages, including any pre -judgment and/or post -judgment interest thereon, incurred for Property Damage and/or Bodily Injury, including any required medical monitoring when accompanied by such Bodily Injury. The term Damages shall not include or mean 1. taxes or loss of tax benefits; 2. criminal fines, sanctions or criminal penalties assessed against the Insured; 3. civil fines, civil penalties punitive damages, exemplary damages or any damages which are a multiple of compensatory damages assessed against the Insured, unless insurable by law and assessed in connection with a Claim for Property Damage and/or Bodily Injury; 4. liquidated damages; 5. any amounts for which the Insured is not liable, or for which there is no legal recourse against the Insured; 6. matters deemed uninsurable under the law pursuant to which this Policy is construed; or 7. goods supplied or services performed by the staff or salaried employees of the Insured in connection with the investigation, adjustment, defense or appeal of any Claim noticed under this Insurance or in connection with the investigation or remediation of a Pollution Condition, without the prior written consent of the Underwriters and in accordance with Clause ll. K. "Engineering Controls" means physical modifications to a Covered Location to reduce or eliminate the potential for exposure to Pollution Conditions. L. "Environmental Laws" means any federal, state, provincial or local laws, including but not limited to statutes, rules, regulations, ordinances, guidance documents, and governmental, judicial or administrative orders and directives that are applicable to Pollution Conditions to which this Insurance applies. F00738 ATTACHMENT 26 Page 6 of 24 102019 ed. M. "Extra Expense" means the reasonable and necessary expenses incurred by the Named Insured, over and above the Named Insured's continuing normal operating expenses, during the Period of Restoration, that the Named Insured would not have incurred had there been no suspension of business operations, provided that the expenses are incurred to avoid or minimize the suspension of business and to continue business operations: at the Covered Location, or 2. at replacement or temporary location(s), including: relocation expenses; and ii. cost to equip and operate the replacement or temporary location(s). Extra Expense shall be reduced by any salvage value of property obtained for temporary use during the Period of Restoration that remains after resumption of normal business operations. Extra Expense shall not include any amounts associated with: 1) costs, fees or expenses incurred as a result of unfavorable business conditions, 2) loss of market or any other consequential loss, 3) crisis management or reputational damage, 4) revoked or modified licenses, permits or, similar types of authorizations from a governmental agency, 5) legal and accounting costs, fees or expenses, including but not limited to any such amounts incurred in connection with defending or pursuing any litigation or in preparation for any litigation, 6) interest, including but not limited to the interest on money borrowed to finance any construction; 7) taxes, including but not limited to realty taxes and other, similar assessments; 8) advertising and promotional costs, fees or expenses; and 9) commissions and any other costs, fees or expenses resulting from the renegotiation of leases; 10) costs arising from any delay, lost opportunity, or additional overhead incurred by the contractor, 11) architect, engineering, design and consultant costs, fees and expenses and/or 12) preventing any Pollution Condition. Subject to the terms and conditions of this Policy, the Underwriters will pay no more for Extra Expense than the percentage shown below multiplied by the Limit of Liability stated in Item 3(a) of the Declarations. If the Period of Restoration is: 30 days or less, the percentage applied to the Limit of Liability shall be 40%. 2. 31-60 days, the percentage applied to the Limit of Liability shall be 80%. 3. 61 days or more, the percentage applied to the Limit of Liability shall be 100%. N. "First Named Insured" means the person or entity specified in Item 1. of the Declarations. O. "Indoor Air Quality Clean -Up Standards" means standards for the investigation and remediation of Microbial Matter, methamphetamines or other chemicals associated with methamphetamine laboratories, and legionella pneumophilia, imposed by a federal, state, local or provincial governmental authority pursuant to a law or regulation governing the investigation and remediation of Microbial Matter, methamphetamines or other chemicals associated with methamphetamine laboratories and/or legionella pneumophilia. If no standards have been imposed by such authority, then the standards for investigation and remediation shall be those necessary to protect human health at the Covered Location which shall be determined as follows: With respect to Microbial Matter, methamphetamines or other chemicals associated with methamphetamine laboratories, by a Certified Industrial F00738 ATTACHMENT 26 Page 7 of 24 102019 ed. 37 Hygienist, or similarly qualified health and safety professional, retained with the prior written consent of the Underwriters and experienced in performing investigation and remediation of Microbial Matter, methamphetamines or other chemicals associated with methamphetamine laboratories. 2. With respect to legionella pneumophilia, to the extent required in writing by the Centers for Disease Control or local health department. The applicable standards shall be those which applied to the use of the Covered Location identified by the Insured in the statements and information contained in the Application submitted to the Underwriters prior to the date the Policy is bound, or prior to adding such locations as a Covered Location specified in Item 9 of the Declarations. P. "Insured" means: the Named Insured; 2. any other entity added as an additional Insured by Endorsement to the policy; 3. a present or former director or officer, or, in the case of a limited liability company, a member or manager of the Named Insured, but only with respect to the performance of his or her duties as such on behalf of the Named Insured; 4. a present or former employee of the Named Insured, but only for work done while acting within the scope of his or her employment and related to the conduct of the Named Insured's business; 5. a present or former principal if the Named Insured is a sole proprietorship, or a partner if the Named Insured is a partnership, but only with respect to the performance of his or her duties as such on behalf of the Named Insured; and 6. the estate, heirs, executors, administrators, assigns and legal representatives of any Insured in the event of such Insured's death, incapacity, insolvency or bankruptcy, but only to the extent that such Insured would otherwise be entitled to coverage under this Insurance. Q. "Institutional Controls" means legal and administrative restrictions on the use of or access to a Covered Location, which are designed to reduce or eliminate the potential for exposure to Pollution Conditions. R. "Licensed Site Professional" means a licensed environmental scientist or engineer that is in good standing with, and acting under the authority of federal, state, provincial or local laws for the purpose of addressing Pollution Conditions at a Covered Location. S. "Material Change in Use" means any change in use or operations at a Covered Location from the use or operations identified by the Insured: in the Application submitted to the Underwriters prior to the date the Policy was bound, or 2. prior to adding such location as a Covered Location specified in Item 9. of the Declarations F00738 ATTACHMENT 26 Page 8 of 24 102019 ed. 38 that materially increases the likelihood or severity of a Pollution Condition, or results in the imposition of more stringent remediation standards than those applicable to the Covered Location as of the date the Policy was bound or the date the Covered Location was added to the Policy, whichever is later. T. "Microbial Matter" means fungi, mold or mildew. U. "Named Insured" means: the First Named Insured; 2. any other entity added as an additional Named Insured by endorsement to the policy; and 3. any corporations, partnerships, companies or other entities which, at the Inception Date of the Policy, or for such time during the Policy Period, the First Named Insured has at least 50% ownership interest, but solely with respect to liability arising out of the ownership, operation, maintenance or use of a Covered Location. V. "Natural Resource Damage" means physical injury to, or destruction of, and the resulting loss of use and loss of value (and the cost for assessment and replacement as a result of such injury, destruction or loss required by law to restore the natural resources to their baseline conditions as they existed immediately prior to the Pollution Condition) of land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Magnuson -Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et. seq.), any state, local or provincial government, any foreign government, any Native American Tribe or if such resources are subject to a trust restriction on alienation, any member of a Native American Tribe. W. "Non -Owned Location" means any location in the United States, its territories or possessions, which is not managed, operated, owned or leased by any Insured or an affiliate of any Insured and is used by an Insured: for the storage, warehousing or distribution of goods or products owned by an Insured and which originate from a Covered Location, or 2. for the treatment, storage or disposal of waste or materials generated at a Covered Location, provided that such location: is properly permitted and/or licensed by the applicable federal, state, local or provincial authorities to accept such waste or materials as of the date the waste or materials are treated, stored or disposed of at such location; and is not listed on a proposed or final Federal National Priorities List and/or any state or provincial equivalent National Priority List, Superfund or Hazardous Waste List prior to the treatment, storage or disposal of the waste or material at such location; and C. is not owned or operated by a bankrupt or financially insolvent entity as of the date the waste or materials are treated, stored or disposed of at such location. F00738 ATTACHMENT 26 Page 9 of 24 102019 ed. 39 X. "Period of Restoration" means the period of time that begins after the Deductible Period set forth in Item 4.(b) of the Declarations and ends with the earliest of: the date the Named Insured may reasonably resume its normal business operations at the Covered Location; 2. the date the Named Insured should have resumed its normal business operations at the Covered Location had it used reasonable skill, speed, and effort to do so; 3. the date the Named Insured may reasonably resume its normal business operations at a new location; or 4. when the number of days shown in Item 3.(e) Period of Restoration Sublimit have elapsed. The Period of Restoration does not include any delay in time caused by the interference by a Named Insured with restoring the property or with the resumption or continuation of business operations. The expiration date of this Policy will not reduce the Period of Restoration, nor shall the Extended Reporting Period extend it. Y. "Policy Period" means the period of time between the Inception Date stated in Item 2. of the Declarations and earlier of the Expiration Date stated in Item 2. of the Declarations, or any termination, expiration or cancellation of this Insurance, if applicable, and specifically excludes any Extended Reporting Period or any prior policy period or renewal period. Z. "Pollution Condition" means the actual or alleged discharge, dispersal, release, escape, migration, seepage, or illicit abandonment on or after the Inception Date shown in Item 2. of the Declarations, by a third party without an Insured's consent, of any solid, liquid, gaseous or thermal irritant, contaminant or pollutant, including but not limited to, smoke, vapors, soot, fumes, acids, alkalis, chemicals, toxic or hazardous substances, waste materials, including medical infectious and pathological waste, low-level radioactive waste and material into or upon land or structures thereupon, the atmosphere or any watercourse, body of water or groundwater, in concentrations or amounts in excess of those naturally occurring or present in the environment, which results in Bodily Injury, Property Damage or Cleanup Costs to which this Insurance applies; and 2. presence of legionella pneumophilia, methamphetamines or other chemicals associated with methamphetamine laboratories, and Microbial Matter on, at or within any structures or buildings on or at the Covered Location; Pollution Condition does not include any exposure to infected humans or animals, or contact with bodily fluids or infected humans or animals. AA. "Property Damage" means: physical injury to or destruction of any tangible property, including the loss of use thereof; 2. loss of use of tangible property that has not been physically injured or destroyed; F00738 ATTACHMENT 26 Page 10 of 24 102019 ed. 40 3. diminished value of property owned by third parties, but only where there is physical injury to or destruction of such tangible property; or 4. Natural Resource Damage. Property Damage does not include Cleanup Costs. BB. "Rental Value" means the loss of any anticipated rental income the Named Insured would have earned during the Period of Restoration by renting all or a portion of the Covered Location(s) to a third party not owned by, affiliated with, or connected in any way to any Named Insured, less any rental income the Named Insured actually earned or could have earned during the Period of Restoration by renting all or a portion of the Covered Location(s) or by making use of other property. Rental Value does not apply to any loss included in subparagraphs (1)-(3) of the definition of Business Interruption Costs. CC. "Reputation Management Expenses" means reasonable fees, costs, charges and expenses of, or at the direction of, a qualified public relations firm incurred by the Named Insured during a Period of Crisis to mitigate material adverse effects upon the Named Insured's reputation and to maintain and/or restore public confidence in the Named Insured, including but not limited to amounts for advising, printing, advertising, mailing of materials, or travel by the Named Insured's directors, officers, employees, or agents, or the public relations firm to the extent incurred at the direction of the public relations firm. Reputation Management Expenses do not include Crisis Management Expenses, Damages, Cleanup Costs, Business Interruption Costs or any Claim Expenses. DD. "Restoration Costs" means costs incurred by an Insured, in order to restore, repair or replace real or personal property to substantially the same condition it was in prior to being damaged during the course of investigating, assessing, removing, disposing, containing, treating, remediating or neutralizing a covered Pollution Condition. Such costs shall not exceed the actual cash value of such real or personal property immediately prior to such damage, or include costs associated with improvements or betterments. Actual cash value shall be calculated by taking the cost to replace such real or personal property, immediately prior to such damage, minus the accumulated depreciation of the real or personal property. EE. Period of Crisis means the period of time that begins on the date that a Pollution Condition covered under Insuring Clause I.A. or I.B. of this Policy results in material adverse regional or national news media coverage for the Named Insured and ends the earlier of the date: (1) the Underwriters, in their sole discretion, determine that there is no reasonable basis that the Pollution Condition has or will continue to result in material adverse regional or national news media coverage against the Named Insured; or (2) when the applicable Sublimits of Liability set forth in Item 3(d) of the Declarations have been exhausted. FF. "Responsible Insured" means: any director, officer, principal, partner, or, in the case of a limited liability company, member or manager of the Named Insured; 2. any manager or supervisor of the Named Insured responsible for environmental health and safety affairs, control or compliance; 3. any insurance manager or any member of the risk management or legal department of the Named Insured; and/or F00738 ATTACHMENT 26 Page 11 of 24 102019 ed. 41 4. any manager of a Covered Location. GG. "Transportation" means the movement of Cargo to or from (i) a Covered Location, and/or (ii) any location qualifying as a Non -Owned Location under Clause III, DEFINITION X.1. only, and includes the loading and unloading of Cargo onto or from an automobile, aircraft, watercraft or rolling stock provided that the loading and unloading is performed by or on behalf of the Insured. Transportation does not include Cargo that has been unloaded from the automobile, aircraft, watercraft or rolling stock transporting it. HH. "Underground Storage Tank" means any stationary container or vessel, including the associated piping and ancillary equipment connected thereto, which is: ten percent (10%) or more beneath the surface of the ground; 2. constructed primarily of non -earthen materials; and 3. designated to contain any substance. IV. DEFENSE, SETTLEMENT AND INVESTIGATION A. The Underwriters shall have the right and duty to defend, subject to the Limit of Liability, exclusions and other terms and conditions of this Policy, any Claim against the Insured seeking Cleanup Costs and/or Damages to which this Insurance applies, even if any of the allegations of the Claim are groundless, false or fraudulent. B. The Underwriters shall have the right to make any investigation they deem necessary, including, without limitation, any investigation with respect to the Application, statements made in the Application and with respect to coverage. C. If the Insured refuses to consent to any settlement or compromise of a Claim recommended by the Underwriters and acceptable to the claimant, the Underwriters' liability associated with such Claim shall not exceed the amount for which the Claim could have been settled, less the remaining Deductible, plus the Claims Expenses incurred up to the time of such refusal, or the applicable Limit of Liability, whichever is less, and the Underwriters shall have the right to withdraw from the further defense of the Claim by tendering control of the defense to the Insured. D. The Underwriters shall not be obligated to pay any Cleanup Costs, Damages, Claims Expenses, Business Interruption Costs, Crisis Management Expenses or Reputation Management Expenses or to undertake or continue defense of any suit or proceeding after the applicable Limit of Liability has been exhausted by payment of Cleanup Costs, Damages, Claims Expenses, Business Interruption Costs, Crisis Management Expenses and/or Reputation Management Expenses. E. If an Insured and the Underwriters jointly agree to utilize mediation as a means to resolve a Claim made against the Insured, and if such Claim is resolved as a direct result of the mediation, the applicable Each Pollution Condition deductible shall be reduced by 50% subject to a maximum reduction of $50,000. Mediation means a formal alternative dispute resolution process involving a neutral third party. V. TERRITORY Subject to Clause III.W., this Policy applies to any Claim made and any Pollution Condition arising anywhere in the world where permitted by applicable law. F00738 ATTACHMENT 26 Page 12 of 24 102019 ed. 42 VI. EXCLUSIONS The coverage under this Insurance does not apply to any amounts: A. Intentional Acts arising out of or resulting from any actual or alleged Pollution Condition that results from a Responsible Insured's intentional disregard of, or wilful, deliberate, or dishonest non-compliance with, any statute, regulation, ordinance, administrative complaint, notice of violation, notice letter, order or instruction by or on behalf of any governmental agency or representative. B. Prior Knowledge arising out of or resulting from any actual or alleged Pollution Condition existing prior to the Inception Date stated in Item 2. of the Declarations, or the date on which a post binding Covered Location was added by Endorsement, if applicable, and known by a Responsible Insured, except to the extent specifically disclosed in the Application for this Policy or specifically disclosed in a document listed on a Disclosed Document Endorsement scheduled to this Policy. Any Pollution Condition disclosed and not otherwise excluded under this Policy or by endorsement shall be deemed to have been first discovered as of the date the Covered Location was added to this Policy. C. Insured Versus Insured arising out of or resulting from a Claim made by or on behalf of any Insured against any other person or entity who is also an Insured. This exclusion does not apply to: any Claim involving a Named Insured and any other person or entity who is also an Insured, in which the underlying action is initiated by a third party who is not an Insured, such as an action for contribution or cross claim; or 2. any Claim that arises out of an indemnification given by one Insured to another Insured as specified in a contract approved by the Underwriters and identified on a Schedule of Insured Contracts Endorsement attached to this Policy. D. Assumption of Contractual Liability of Others arising out of or resulting from the liability of others assumed by the Insured under any contract or agreement either oral or written, including any hold harmless or indemnity agreements, except to the extent: the Insured would have been liable in the absence of such contract or agreement; or 2. provided under contracts approved by the Underwriters and identified on a Schedule of Insured Contracts Endorsement attached to this Policy. E. Asbestos / Lead arising out of or resulting from asbestos or lead; provided, that this exclusion does not apply to: any Claim for Damages, except for Natural Resource Damages, and Claims Expenses arising therefrom, under Insuring Clause I.A. or I.B. of this Policy; F00738 ATTACHMENT 26 Page 13 of 24 102019 ed. 43 2. Insuring Clause I.A. or I.B. of this Policy to the extent of asbestos or lead, or any materials containing asbestos or lead, in soil or in any surface water or in groundwater; or 3. Insuring Clause I.C. or I.D. of this Policy. F. Employers Liability and Workers Compensation arising out of or resulting from: Bodily Injury to any employee of any Insured arising out of and in the course of: employment by an Insured; or performing duties related to the conduct of an Insured's business; or 2. Bodily Injury to any spouse (or person living together as spouse), child, parent, brother, sister or dependent of the employee as a consequence of 1. above; or 3. any Insured's employment obligations, decisions, practices or policies as an employer; or 4. any obligation for which the Insured or its insurance carrier(s) may be liable under any workers compensation, unemployment compensation or disability benefits law or similar law. G. Products Liability arising out of or resulting from any goods or products designed, manufactured, sold, handled, distributed, installed, altered or repaired, including any container thereof, any failure to warn, or any reliance upon a representation or warranty made at any time with respect thereto, by (i) the Insured, (ii) others trading under the Insured's name; or (iii) a person or organization whose business or assets an Insured has acquired. This exclusion only applies to the extent the Pollution Condition took place away from a Covered Location and after physical possession of such goods or products has been relinquished by the Insured to others. This exclusion shall not apply to Non -Owned Locations under subparagraph X.1. provided that the Insured has retained uninterrupted ownership of such goods or products, or to Insuring Clause I.C. of this Policy. H. Property Damage to an Insured's Property arising out of or resulting from, any Property Damage to any property owned, leased or operated by, or in the care, custody or control of an Insured, even if such Property Damage is incurred to avoid or mitigate Damages, Cleanup Costs, Business Interruption Costs, Crisis Management Expenses or Reputation Management Expenses, to which this Insurance applies. New Pollution Conditions at Divested Property arising out of or resulting from a Pollution Condition on, at, under or migrating from a Covered Location, where such Pollution Condition first commences after such Covered Location was sold, given away or abandoned by the Insured or condemned during the Policy Period. F00738 ATTACHMENT 26 Page 14 of 24 102019 ed. 44 Aircraft, Auto or Watercraft arising out of or resulting from the ownership, operation, maintenance, use, loading and unloading, or entrustment to others of any aircraft, automobile or watercraft beyond the boundaries of a Covered Location. This exclusion shall not apply to Insuring Clause I.C. of this Policy. K. Material Change In Use arising out of or resulting from a Material Change In Use. Failure to Maintain Institutional Controls or Engineering Controls arising out of or resulting from: the failure to monitor, maintain or enforce the Institutional Controls or Engineering Controls for a Covered Location; or 2. costs associated with implementing, designing, installing, operating, monitoring, maintaining or enforcing the existing Institutional Controls or Engineering Controls in place on or before the Inception Date stated in Item 2. of the Declarations. M. Underground Storage Tank arising out of or resulting from the existence of any Underground Storage Tank at a Covered Location. This exclusion shall not apply to: 1. an Underground Storage Tank at a Covered Location that is closed, abandoned in place or removed prior to the Inception Date stated in Item 2. of the Declarations, in accordance with all applicable federal, state, local or provincial regulations in effect at the time of closure, abandonment or removal; 2. an Underground Storage Tank identified and described in a Schedule of Underground Storage Tank Endorsement attached to the Policy; 3. an Underground Storage Tank at a Covered Location, the existence of which is not known to any Responsible Insured as of the Inception Date stated in Item 2. of the Declarations or the date on which a post binding Covered Location was added by Endorsement, if applicable; 4. a flow -through process tank, including oil/water separators and/or septic tanks at a Covered Location; or 5. a storage tank situated in a man-made underground area (such as a basement, cellar, mine shaft or tunnel) at a Covered Location if the storage tank is situated upon or above the surface of the floor. VII. LIMIT OF LIABILITY A. The Each Pollution Condition Limit of Liability stated in Item 3.(a) of the Declarations is the limit of the Underwriters' liability for all covered amounts arising out of any single Pollution Condition, except as set forth in Paragraph G. below. F00738 ATTACHMENT 26 Page 15 of 24 102019 ed. 45 B. The Aggregate Limit of Liability for the Policy Period stated in Item 3.(b) of the Declarations is the Underwriters' total Limit of Liability for all covered amounts arising out of all Pollution Conditions covered by this Policy, except as set forth in Paragraph F. below. C. The Limit of Liability available to pay Damages, Cleanup Costs, Business Interruption Costs, Crisis Management Expenses and Reputation Management Expenses shall be reduced and may be completely exhausted by payment of Claims Expenses. Cleanup Costs, Damages, Claims Expenses Business Interruption Costs, Crisis Management Expenses and Reputation Management Expenses shall be applied against the applicable Deductible. D. Neither the inclusion of more than one Insured under this Policy, nor the making of Claims by more than one person or entity shall increase the applicable Limit of Liability. E. The Crisis and Reputation Management Expenses Coverage Aggregate Pollution Condition Sublimit stated in Item 3.(d) of the Declarations, if any, is the limit of the Underwriters' liability for all Crisis Management Expenses and/or Reputation Management Expenses under the Policy. The Sublimit of Liability stated in Item 3.(d) is part of, reduces and is subject to the Limit of Liability stated in Item 3.(a) and (b) of the Declarations. If the remaining Limit of Liability stated in Item 3.(a) and (b) is less than the applicable Sublimit of Liability, the remaining Each Pollution Condition Limit or Aggregate for the Policy Period Limit is the most that will be available for payment of coverage provided under the Policy subject to the Sublimit of Liability. F. The Limit of Liability for the Extended Reporting Period shall be part of, and not be in addition to, the Limit of Liability of the Underwriters for the Policy Period. G. The Additional Claims Expenses Limit of Liability stated in Item 3.(c) of the Declarations, if any, is separate and in addition to the Each Pollution Condition Limit of Liability. Payments of Claims Expenses by Underwriters shall first reduce the Additional Claims Expenses Limit of Liability in Item 3.(c) of the Declarations, if applicable. If the Additional Claims Expenses Limit of Liability is fully eroded, then any additional payments of Claims Expenses shall reduce the applicable Each Pollution Condition and Aggregate Limits of Liability. The Underwriter's total liability for all Pollution Conditions under this Policy, inclusive of Claims Expenses, shall not exceed the sum of the aggregate limit amounts shown in in Items 3.(b) and 3.(c) of the Declarations. Vill. RELATED POLLUTION CONDITIONS A. The same, continuous repeated or related Pollution Conditions shall be considered a single Pollution Condition, irrespective of the number of claimants or Insureds involved in the Claim or the number of Claims made, subject to the Limit of Liability applicable in the Policy Period when the first such Pollution Condition was reported to the Underwriters. B. If an Insured: first discovered a Pollution Condition during the policy period of a policy issued by the Underwriters prior to the Inception Date stated in Item 2. of the F00738 ATTACHMENT 26 Page 16 of 24 102019 ed. 46 IX. 0 Declarations, and reported it to the Underwriters in accordance with the terms of that prior policy; and/or 2. reported a Claim to the Underwriters during the policy period of a policy issued by the Underwriters prior to the Inception Date stated in Item 2. of the Declarations, in accordance with the terms of that prior policy, and this Policy provides coverage on substantially the same basis as such prior policy, then all of the same, continuous repeated or related Pollution Conditions, and/or all Claims arising from the same, continuous, repeated or related Pollution Conditions, shall be subject only to the applicable Limits of Liability under the first such policy issued by the Underwriters. DEDUCTIBLE A. Except with respect to Insuring Clause Declarations applies separately to eac apply to all coverage under the Policy related Pollution Conditions. h I.F., the Deductible stated in Item 4.(a) of the Pollution Condition and one Deductible shall arising from the same, continuous, repeated or The First Named Insured shall satisfy the Deductible by payment of amounts covered by this Policy to third parties designated by the Underwriters, with Underwriters' prior written consent (not to be unreasonably withheld). Payments of any amounts not covered by this Policy or without Underwriters' prior written consent shall not satisfy the applicable Deductible. Payments made by any Insured in satisfaction of deductible obligations under any other insurance shall not satisfy the applicable Deductible under this Policy. B. With respect to Insuring Clause I.F, the Deductible stated in Item 4.(b) of the Declarations applies separately to each Pollution Condition with respect to all Business Interruption Costs covered under the Policy arising from the same, continuous, repeated or related Pollution Conditions. C. Full payment of the Deductible is a condition precedent to the payment by the Underwriters of any amounts under the Policy. Underwriters shall be liable only for the amounts in excess of the Deductible, subject to the Underwriters total liability not exceeding the applicable Limits of Liability. The Deductible amount does not reduce the Limit of Liability. NOTICE OF CLAIM AND DISCOVERY OF POLLUTION CONDITION A. With respect to Insuring Clauses I.A.1., I.B.1., I.C. and I.D., if any Claim is made against an Insured, the Insured shall forward written notice as soon as practicable to the Underwriters but in no event shall such notice be provided after the expiration of the Policy Period or the time allowed, if applicable, under Section XI. Notice shall be forwarded via facsimile, email or express or certified mail to the persons identified in Item 8.(a) of the Declarations. Such notice should include a copy of every demand, notice, summons or other process received by the Insured or the Insured's representative. B. With respect to Insuring Clauses I.A.2. and 1.13.2., the Insured shall forward written notice to the Underwriters as soon as practicable after a Responsible Insured becomes aware of any Pollution Condition, but in no event shall such notice be provided after the expiration of the Policy Period or the time allowed, if applicable, under section XI. Notice shall be forwarded via facsimile, email or express or certified mail to the persons identified in Item 8.(a) of the Declarations. Notice shall include, at a minimum, information F00738 ATTACHMENT 26 Page 17 of 24 102019 ed. 47 sufficient to identify the Insured, the Covered Location affected, the names of persons with knowledge of the Pollution Condition, and all known and reasonably obtainable information regarding the time, place, cause, nature of and other circumstances of the Pollution Condition, and any resulting injuries or damages and remedial steps proposed to be undertaken by the Insured. C. With respect to Insuring Clause I.E., the Named Insured shall forward written notice to the Underwriters of any action taken and expenses incurred as soon as practicable, but in no event later than seventy-two (72) hours after the Named Insured incurs or assumes Reputation Management Expenses and/or Crisis Management Expenses. The Underwriters reserve the right in their sole discretion after the first seventy-two (72) hours following the commencement of the Pollution Condition to determine (1) if the Pollution Condition has or will result in material adverse regional or national news media coverage against the Named Insured, or (2) the reasonable type and scope of services, and rates and charges associated with Crisis Management Expenses and/or Reputation Management Expenses and thereafter the Named Insured shall not incur or assume any further or additional Crisis Management Expenses and/or Reputation Management Expenses without the written consent of the Underwriters. Written notice of a Pollution Condition that gives rise to Reputation Management Expenses and/or Crisis Management Expenses shall be forwarded via facsimile, email or express or certified mail to the persons identified in Item 8.(a) of the Declarations. Such notice should include: 1. a description of the Pollution Condition; 2. the Named Insured's basis for a good faith opinion of material adverse regional or national news media coverage; 3. reasonably obtainable and available information regarding any Claim or requests for Cleanup Costs; and 4. a description of any Crisis Management Expenses and/or Reputation Management Expenses incurred or planned to be incurred including identification of service providers. Any payment under Insuring Clause I.E. shall not determine or waive any of the Underwriters' rights or obligations or create a duty to defend any Claim or to pay any Cleanup Costs under any other provision of the Policy; nor shall it waive the Insured's obligations to provide notice of Claim and/or discovery of Pollution Condition under the Policy as set forth in Clause X.A or X.B. of the Policy. D. With respect to Insuring Clause I.F., the Named Insured shall forward written notice to the Underwriters as soon as practicable after the Named Insured becomes aware of any Business Interruption Costs loss but in no event shall such notice be provided after the expiration of the Policy Period. Notice shall be forwarded via facsimile, email or express or certified mail to the persons identified in Item 8.(a) of the Declarations. Notice shall include, at a minimum, information sufficient to identify the Named Insured, the Covered Location affected, the Pollution Condition covered under Insuring Clause I.A or 1.13 associated with the Business Interruption Costs, the type and amount of Business Interruption Costs, and all known and reasonably obtainable information regarding the time, place, cause, nature and itemization of and other circumstances of the Business Interruption Costs. F00738 ATTACHMENT 26 Page 18 of 24 102019 ed. 48 Ka E. A Claim or Pollution Condition shall be considered to be reported to the Underwriters when written notice is first received by any of the recipients identified in Item 8.(a) of the Declarations. EXTENDED REPORTING PERIOD A. Automatic Extended Reporting Period If this Policy is cancelled or non -renewed by the Underwriters or by the First Named Insured, then the First Named Insured shall have the right to an Automatic Extended Reporting Period, commencing on the last day of the Policy Period, with respect to: any Claim first made against any Insured during the Policy Period and reported in writing to the Underwriters during the ninety (90) day Automatic Extended Reporting Period, and otherwise covered by this Policy; any Claim first made against any Insured during the ninety (90) day Automatic Extended Reporting Period, resulting from a Pollution Condition first discovered and reported in writing to the Underwriters during the Policy Period, and otherwise covered by this Policy; C. any Pollution Condition first Policy Period and reported in Automatic Extended Reporting Policy. discovered by any Insured during the writing to the Underwriters during the Period, and otherwise covered by this The above Automatic Extended Reporting Period shall not apply if the Policy is canceled by the Underwriters due to fraud or non-payment of premium, or if the Insured has purchased other insurance to replace the insurance provided under this Policy. B. Optional Extended Reporting Period If this Policy is cancelled or non -renewed by the Underwriters or by the First Named Insured, then the First Named Insured shall have the right, upon payment of an additional premium calculated at that percentage shown in Item 7.(a) of the Declarations of the total premium for this Policy, to an Optional Extended Reporting Period with respect to any Claim first made against any Insured and reported during the period of time set forth in Item 7.(b) of the Declarations following the end of the Policy Period, but only with respect to any Pollution Condition first discovered and reported in writing to the Underwriters during the Policy Period, which is otherwise covered by this Policy. 2. If the Optional Extended Reporting Period is purchased, the ninety (90) day Automatic Extended Reporting Period referred to in Clause XI.A. above shall form part of, and not be in addition to the Optional Extended Reporting Period. 3. As a condition precedent to the right to purchase the Optional Extended Reporting Period, the total premium for this Policy must have been paid and that cancelation by the Underwriters, if applicable, was not due to fraud. The right to purchase such extension of coverage shall terminate unless written notice together with full payment of the premium for such extension of coverage is given to the Underwriters within sixty (60) days after the effective date of cancellation or non -renewal. If such notice and premium payment is not so given to the Underwriters, there shall be no right to purchase such extension of coverage. F00738 ATTACHMENT 26 Page 19 of 24 102019 ed. 49 4. In the event of the purchase of the Optional Extended Reporting Period, the entire premium for the Optional Extension Period shall be deemed earned at its commencement. 5. The exercise of the Optional Extended Reporting Period shall not in any way increase the Limits of Liability set forth in Item 3. of the Declarations. 6. The offer of renewal terms, conditions or premiums different from those in effect prior to renewal shall not constitute a refusal to renew for purposes of this Clause XI. XII. REPRESENTATIONS By acceptance of this Policy, all Insureds agree that the statements contained in the Application are their agreements and representations, that such statements shall be deemed material to the risk assumed by the Underwriters, and that this Policy is issued in reliance upon the truth thereof. This entire Policy shall be void if, whether before or after a Claim or Pollution Condition is first reported to the Underwriters, any Insured has concealed or misrepresented any fact or circumstance material to the granting of coverage under this Policy. XIII. OTHER INSURANCE A. Except as set forth in Clause XIII.0 and D. below, this Insurance is primary, and the Underwriters' obligations are not affected unless any other insurance is also primary. In that case, the Underwriters will share with all such other insurance by the method described in Clause XIII.C. below. B. When this Insurance is excess, the Underwriters will pay only its share of the amounts covered under the Policy, if any, that exceeds the total amount of such other insurance. C. When both this Insurance and other insurance apply to amounts covered under the Policy on the same basis, whether primary or excess, the Underwriters shall not be liable under this Policy for a greater proportion of any amounts covered by this Policy than the amount resulting from the following contribution methods, whichever is lesser: contribution by equal shares where each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the amounts covered by this Policy remains, whichever occurs first; or 2. contribution by limits where each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. D. Solely with respect to a Pollution Condition due to Microbial Matter Legionella pneumophilia and/or methamphetamines, this insurance is excess of any other valid and collectable insurance. The Underwriters will pay only its share of the amounts covered by this Policy, if any, that exceeds the total amount of such other valid and collectible insurance. Where other insurance may be available for amounts covered by this Policy as noted above, the Insured shall promptly, upon request, provide the Underwriters with copies of all such policies. F00738 Page 20 of 24 102019 ed. ATTACHMENT 26 50 XIV. ASSIGNMENT This Policy may be assigned by the First Named Insured with the prior written consent of the Underwriters, which shall not be unreasonably withheld or delayed. Assignment of the Policy shall not be effective until such assignment is endorsed to the Policy. Notwithstanding the foregoing, if an Insured shall die or be adjudged incompetent, such insurance shall cover that Insured's legal representative to the extent that the Insured would be covered by this Policy. XV. CANCELLATION This Insurance may be cancelled by the First Named Insured by surrender of this Policy to the Underwriters or by mailing to the Underwriters written notice stating when thereafter cancellation shall be effective. This Insurance may be cancelled by the Underwriters by mailing the First Named Insured at the address set forth in Item 1. of the Declarations, a notice stating when thereafter such cancellation shall be effective. The Underwriters may only cancel this Insurance for the following reasons: fraud on the part of the Named Insured in the Application; or any Insured's material failure to comply with the terms, conditions or contractual obligations under this Policy, including the failure to pay any premium or Deductible when due, however, the Insured shall have the ability, within the first sixty (60) days (ten (10) days for failure to pay any premium when due) of the ninety (90) day notice period, to cure such failure to comply with the material terms, conditions or contractual obligations under this Policy to the satisfaction of the Underwriters. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the Policy Period. Delivery of such written notice either by the Named Insured or by the Underwriters shall be the equivalent of mailing. Notice of pending cancellation will be provided not less than: (a) ninety (90) days prior to the effective date of cancellation for any Insured's failure to comply with the terms, conditions or contractual obligations under this Policy including failure to pay the Deductible when due; (b) thirty (30) days prior to the effective date of cancellation for fraud; or (c) ten (10) days prior to the effective date of cancellation for non-payment of premium. If the Underwriters cancel, subject to any minimum earned premium that may apply, the return premium will be calculated on a pro rata basis. If the First Named Insured cancels, subject to any minimum earned premium that may apply, the return premium will be calculated in accordance with the customary short rate table and procedure. XVI. ASSISTANCE AND COOPERATION OF THE INSURED The Insured shall cooperate with the Underwriters and provide all reasonable assistance in the investigation and defense of any Claim, Pollution Condition, the Application, Business Interruption Cost, Crisis Management Expense, Reputation Management Expense, and any other matters relating to coverage under this Policy. The Insured shall execute or cause to be executed all papers and render all assistance as is reasonably requested by the Underwriters and related to the defense of any Claim, the cleanup of any Pollution Condition, Business Interruption Cost, Crisis Management Expense and Reputation Management Expense. The Underwriters may require that the Insured submit to examination under oath, attend hearings, depositions and trials and assist in securing and giving evidence and obtaining the attendance of witnesses in connection with the defense of any Claim, cleanup of Pollution Condition, Business Interruption Cost, Crisis Management Expense and Reputation Management Expense. In the course of investigation or defense of any Claim, F00738 Page 21 of 24 102019 ed. ATTACHMENT 26 51 the Underwriters may require written statements or the Insured's attendance at meetings with the Underwriters. Upon the Underwriters request, the Insured shall assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the Insured because of any Pollution Condition covered under this Policy. The Insured shall not admit liability, enter into any settlement, stipulate to any judgment or award or dispose of any Claim, or, except as provided in Clause I.E. and/or III.G.5, make any payment, assume any obligations, incur any expense (including, but not limited to, any Claims Expenses or Cleanup Costs), without the written consent of the Underwriters, such consent not to be unreasonably withheld or delayed. Except as provided for in Clause II., expenses incurred by the Insured in assisting and cooperating with the Underwriters, as described above, do not constitute Claims Expenses and are not reimbursable under this Policy. XVII. ACTION AGAINST THE UNDERWRITERS No action shall lie against the Underwriters unless the Insured shall have fully complied with all of the terms of this Policy, nor until the amount of the Insured's obligation to pay shall have been fully and finally determined either by judgment against them or by written agreement between them, the claimant and the Underwriters. Nothing contained herein shall give any person or organization any right to join the Underwriters as a party to any Claim against the Insured to determine their liability, nor shall the Underwriters be impleaded by the Insureds or their legal representative in any Claim. XVIII. SUBROGATION In the event of any payment under this Insurance, the Underwriters shall be subrogated to all the Insureds' rights of recovery therefore against any person or organization, and the Insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do nothing to prejudice such rights. Any recoveries shall be applied first to subrogation expenses, second to the Named Insured to the extent of any payments in excess of the Limit of Liability, third to amounts covered by this Policy and paid by the Underwriters, and fourth to the Deductible. Any additional amounts recovered shall be paid to the Named Insured. XIX. ENTIRE AGREEMENT By acceptance of this Policy, all Insureds agree that this Policy embodies all agreements existing between them and the Underwriters relating to this Insurance. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this Policy or estop the Underwriters from asserting any right under the terms of this Policy; nor shall the terms of this Policy be waived or changed, except by written endorsement issued to form a part of this Policy, signed by the Underwriters. XX. VALUATION AND CURRENCY All premiums, limits, deductibles, and any amounts covered by this Policy are expressed and payable in the currency of the United States. If judgment is rendered, settlement is denominated, or another element of Damages under this Policy is stated in a currency other than United States dollars or if any other amounts covered by this Policy are paid in a currency other than United States dollars, payment under this Policy shall be made in United States dollars at the rate of exchange published in the Wall Street Journal on the date on which a relevant final judgment becomes incapable of appeal or payment of the settlement or other element of Damages is due or the date such other amounts covered by this Policy are paid. F00738 ATTACHMENT 26 Page 22 of 24 102019 ed. 52 XXI. BANKRUPTCY Bankruptcy or insolvency of the Insured shall not relieve the Underwriters of its obligations nor deprive the Underwriters of its rights or defenses under this Policy. XXII. AUTHORIZATION By acceptance of this Policy, the Insureds agree that the Named Insured will act on their behalf with respect to the giving and receiving of any notice provided for in this Policy, the payment of premiums and the receipt of any return premiums that may become due under this Policy, and the agreement to and acceptance of endorsements. XXIII. RIGHT OF ACCESS AND INSPECTION The Named Insured agrees to provide the Underwriters with access to any information developed or discovered by an Insured concerning a Claim, Pollution Condition, Business Interruption Costs, Crisis Management Expenses or Reputation Management Expenses to which this Insurance applies, whether or not deemed by an Insured to be relevant and to provide the Underwriters with access to interview any Insured and review any documents of an Insured. Further, to the extent that an Insured has such rights, any of the Underwriters representatives shall have the right and opportunity but not the obligation to inspect at any reasonable time, during the Policy Period or thereafter, a Covered Location associated with a Claim, Pollution Condition, Business Interruption Costs, Crisis Management Expenses, or Reputation Management Expenses reported to the Underwriters. Neither the Underwriters nor its representatives shall assume any responsibility or duty to the Insured or to any other person or entity, by reason of such right of inspection. Neither the Underwriters right to make inspections, sample and monitor, nor the actual undertaking thereof nor any report thereon shall constitute an undertaking on behalf of the Insured or others, to determine or warrant that the property or operations are safe, healthful or conform to acceptable engineering practices or are in compliance with any law, rule or regulation. The Named Insured agrees to provide appropriate personnel to assist the Underwriters' representatives during any inspection. XXIV. HEADINGS The descriptions in the headings and subheadings of this Policy are solely for convenience, and form no part of the terms and conditions of coverage. XXV. SERVICE OF SUIT It is agreed that in the event of the failure of the Underwriters to pay any amount claimed to be due under this Insurance, the Underwriters, at the request of the Insured, will submit to the jurisdiction of any court of competent jurisdiction within the United States. Nothing in this Clause constitutes or should be understood to constitute a waiver of the Underwriters' rights to commence an action in any Court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another Court as permitted by the laws of the United States or of any State in the United States. It is further agreed that service of process in such suit may be made upon Underwriters representative, designated in Item 11. of the Declarations, and that in any suit instituted against any one of them upon this contract, Underwriters will abide by the final decision of such Court or of any Appellate Court in the event of an appeal. The Underwriters' representative designated in Item 11. of the Declarations is authorized and directed to accept service of process on behalf of Underwriters in any such suit and/or upon the request of the Insured to give a written undertaking to the Insured that they will enter a general appearance upon Underwriters behalf in the event such a suit shall be instituted. F00738 ATTACHMENT 26 Page 23 of 24 102019 ed. 53 Further, pursuant to any statute of any state, territory or district of the United States which makes provision therefore, the Underwriters designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute, or his or her successor in office, as their true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Insured or any beneficiary hereunder arising out of this contract of Insurance, and hereby designate the Underwriters representative, designated in Item 11. of the Declarations, as the person to whom the said officer is authorized to mail such process or a true copy thereof. XXVI. CHOICE OF LAW Any disputes involving this Policy shall be resolved applying the law designated in Item 12. of the Declarations. XXVII. SOLE AGENT The First Named Insured shall act on behalf of all Insureds for all purposes, including but not limited to the payment of Deductible amounts, payment or return of premium, receipt and acceptance of any endorsement issued to form a part of this Policy, giving and receiving notice of cancellation or nonrenewal and the exercise of the rights stated in Clause XI. XXVIII. SANCTION LIMITATIONS No (re)insurer shall be deemed to provide cover and no (re)insurer shall be liable to pay any Claim or provide any benefit hereunder to the extent that the provision of such cover, payment of such Claim or provision of such benefit would expose that (re)insurer to any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, law or regulations of the European Union, United Kingdom or United States of America. XXIX. SEVERABILITY OF INTEREST Except with respect to the Limit of Liability, Clause XII. and any rights and duties assigned in this Policy to the First Named Insured, this Insurance applies as if each Insured were the only Insured and separately to each Insured against whom a Claim is made. F00738 ATTACHMENT 26 Page 24 of 24 102019 ed. 54 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" ADDITIONAL INSURED - LIABILITY ARISING OUT OF NAMED INSURED This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that Clause III. DEFINITIONS, Definition P. "Insured" is amended to include the following person(s) or entity(ies): City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency and their respective elected and appointed officials, agents, representatives and employees Any entity where required by written contract provided such contract was executed prior to a Claim rl but only: to the extent of liability arising out of any Named Insured's ownership, operation, maintenance or use of a Covered Location not otherwise excluded under this Policy, and excluding any liability arising from any act, error, omission or negligence of the entity(ies) scheduled under this Endorsement; and 2. if the entity(ies) scheduled under this Endorsement is/are named in a Claim as a co-defendant with the Named Insured, alleging that such entity(ies) is/are liable on the basis described in paragraph 1. above. All other terms and conditions of this Policy remain unchanged. /U Authorized Represen ative E13962 Page 1 of 1 042020 ed. ATTACHMENT 26 55 Effective date of this Endorsement: 01-Mar-2025 This Endorsement is attached to and forms a part of Policy Number: Beazley Excess and Surplus Insurance, Inc. referred to in this endorsement as either the "Insurer" or the "Underwriters" WAIVER OF SUBROGATION This endorsement modifies insurance provided under the following: BEAZLEY ECLIPSE In consideration of the premium charged for the Policy, it is hereby understood and agreed that Clause XVIII. SUBROGATION is deleted in its entirety and replaced with the following: XVIII. SUBROGATION I In the event of any payment under this Insurance, the Underwriters shall be subrogated to all the Insureds' rights of recovery therefore against any person or organization, and the Insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do nothing to prejudice such rights. Notwithstanding the foregoing, the Underwriters agree to waive their rights of recovery against any person or organization listed below for a Claim which is covered pursuant to this Policy. Any recoveries shall be applied first to subrogation expenses, second to the Named Insured to the extent of any payments in excess of the Limit of Liability, third to Cleanup Costs, Damages and Claims Expenses paid by the Underwriters, and fourth to the Deductible. Any additional amounts recovered shall be paid to the Named Insured. Person or Organization: City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency and their respective elected and appointed officials, agents, representatives and employees All other terms and conditions of this Policy remain unchanged. Authorized Represen ative m z E12482 Page 1 of 1 012019 ed. ATTACHMENT 26 56