HomeMy WebLinkAbout09 EXCLUSIVE NEGOTIATING AGREEMENT WITH TUSTIN LEGACYDocusign Envelope ID: 358C2907-8737-8327-823E-C74D6AE09DF2
MEETING DATE
TO
FROM
Agenda Item 9
AGENDA REPORT Reviewed:
City Manager
Finance Director
J U N E 16, 2026
ALDO E. SCHINDLER, CITY MANAGER
BRIAN MONCRIEF, DEPUTY CITY MANAGER — REAL PROPERTY
SUBJECT: EXCLUSIVE NEGOTIATING AGREEMENT WITH TUSTIN LEGACY
MIXED USE, LLC FOR AN APPROXIMATELY 52 ACRE SITE
WITHIN THE TUSTIN LEGACY SPECIFIC PLAN AREA
SUMMARY:
Request for authorization to enter into an Exclusive Negotiating Agreement with Tustin
Legacy Mixed Use, LLC for the disposition and development of approximately 52 acres of
City -owned real property within the Tustin Legacy Specific Plan. The staff supported
recommendation is made by an Ad Hoc Committee composed of Councilmember Gallagher
and Mayor Lumbard.
RECOMMENDATION:
Authorize the City Manager to execute the Exclusive Negotiating Agreement between the
City and Tustin Legacy Mixed Use, LLC 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.
FISCAL IMPACT:
Concurrent with the execution of the Exclusive Negotiating Agreement, Tustin Legacy Mixed
Use, LLC will submit a good faith deposit of $250,000 to be applied toward staff and third -
party costs incurred by the City including the retention of legal counsel associated with the
negotiation. These costs are separate from entitlement expenses that will be borne by Tustin
Legacy Mixed Use, LLC.
CORRELATION TO THE STRATEGIC PLAN:
Entering into exclusive negotiations for the disposition and development of approximately
52 acres within Tustin Legacy contributes to the fulfillment of the City's Strategic Plan Goal
A: Economic and Neighborhood Development. Specifically, this item implements Strategy
1, which is to develop critical phases of Tustin Legacy.
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City Council Agenda Report
ENA with Tustin Legacy Mixed Use, LLC
June 16, 2026
Page 2
BACKGROUND AND DISCUSSION:
On May 20, 2025, the City Council authorized staff to release a competitive offering for
approximately 52 acres of City -owned real property within Neighborhood E (Planning Areas
9-12) of the Tustin Legacy Specific Plan pursuant to the procedures approved by the City
Council in Resolution 25-10. At the same meeting, the City Council authorized an
amendment to the Listing Agreement with CCP Real Estate Advisors and SRS Real Estate
Partners (Broker) for the site.
An Offering Memorandum for the site was released by the Broker on June 30, 2025. After a
multi -staged review process of the proposals received, on March 17, 2026, the City Council
authorized staff and the Broker to negotiate an Exclusive Negotiating Agreement (ENA) with
ALMQUIST Development & Investments, now Tustin Legacy Mixed Use, LLC (Developer)
for future City Council consideration. The Developer's proposal includes the development of
a curated retail and residential village consisting of for -sale homes and affordable rental
homes within a mixed -use walkable neighborhood.
The ENA provides for an initial negotiating period of 24-months from the Effective Date, which
may be extended for one (1) additional period of 6-months at the discretion of the City
Manager. If negotiations are successful, the project entitlements will be reviewed by the
Planning Commission and the Disposition and Development Agreement and project
entitlements will then be brought to the City Council for consideration, which is anticipated in
Q 1 /Q2 2029.
Brian Moncrief
Deputy City Manager — Real Property
Swi6VICk
Ryan Swiontek
Deputy Director of Real Property
Attachment: ENA between the City of Tustin and Tustin Legacy Mixed Use, LLC
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CITY OF TUSTIN
EXCLUSIVE NEGOTIATION AGREEMENT
(TUSTIN LEGACY 52 AC. SITE)
THIS EXCLUSIVE NEGOTIATION AGREEMENT ("Agreement") is dated as of , 2026, for
reference purposes only, and is entered into by and between the City of Tustin, a California municipal
corporation ("City") and Tustin Legacy Mixed Use, LLC, a California limited liability company
("Developer"), to provide a specified period of time to attempt to negotiate a disposition and development
agreement. The City and the Developer are sometimes referred to in this Agreement individually as a
"Party" and, collectively, as the "Parties." This Agreement is entered into by the Parties with reference to
the following recited facts (each, a "Recital"):
RECITALS
A. The Property, as that term is defined below, was conveyed to the City 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), and associated actions of the federal government as part of the closure of Marine Corps Air
Station -Tustin ("MCAS Tustin"). As part of that process a reuse plan was prepared, 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 with several subsequent
supplements and addenda (the "Final EIS/EIR") was approved, and approximately 1,153 acres was
conveyed to the City. Subsequently, the City adopted the MCAS Tustin Specific Plan/Reuse Plan setting
forth the zoning and entitlement framework for future development of Tustin Legacy which has been
amended from time to time. All of the documents, including but not limited to the Reuse Plan, the Final
EIS/EIR, the conveyance documents, and the Memorandum of Agreement between the City and the federal
government, have been made available to Developer.
B. The City is the owner of that certain real property located at the southerly corner of the intersection
of Red Hill Avenue and Warner Avenue in the City of Tustin, California (APN 430-272-11-15, 22, 24, 26-
28) and portions of APN 430-272-04, 07, 08, 20-23) and more specifically described in Exhibit "A" and
incorporated into this Agreement by reference ("Property"); and
C. The Property comprises a portion of the land conveyed by the Navy to the City in Navy Quitclaim
Deed D dated May 13, 2002 and recorded in the Orange County Clerk Recorder Office on May 14, 2002
as Instrument No. 20020404594 ("Navy Quitclaim Deed"). The Property is in Specific Plan Neighborhood
E, Planning Areas 9-12 and is referred to in the Navy Reuse Plan as portions of Parcels 4, 5, and 6 and in
the Navy Quitclaim Deed as portions of Parcels I-D-1. The Property is bounded by Warner Avenue, Redhill
Avenue, Barranca Parkway, and Armstrong Avenue.
D. On June 20, 2023, the Tustin City Council adopted Resolution No. 23-27, declaring the Property
surplus and a Notice of Availability was issued on June 30, 2023, for the required 60-day period. No
developers engaged in an additional 90-day Good Faith Negotiating Period and on October 3, 2023, the
Department of Housing and Community Development (HCD) determined that all requirements under the
Surplus Land Act (SLA) for the purposes of disposing of the Property have been met. The Parties
acknowledge that prior to the disposition of the Property a covenant requiring that if 10 or more residential
units are ever built on the Property not less than 15% shall be affordable, as defined and at the affordability
levels set forth in Government Code section 54233.
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E. The City has an interest in developing the Property and has accepted development proposals from
interested developers following a competitive Request for Proposals (RFP) offering process administered
by commercial real estate brokerage firms CCP Real Estate Advisors and SRS Real Estate Partners; and
F. The Developer has proposed the development of the Property to create a curated retail and
residential village consisting of for -sale homes and affordable rental homes within a mixed -use walkable
neighborhood , as generally depicted in the conceptual site plan attached to this Agreement as Exhibit "B"
and incorporated into this Agreement by this reference ("Project"). Developer has proposed to serve as the
Master Developer of the Project who will self -construct the following portions of the Project: retail. As
Master Developer, Developer shall convey to reputable, experienced homebuilders the following portions
of the Project: for sale market rate housing and the affordable housing component; and
G. The intent of both the City and the Developer in entering into this Agreement is to establish a
specific, limited period of time for Developer to process an entitlement application for City consideration
(including the associated California Environmental Quality Act ("CEQA") review) and to negotiate
regarding a future agreement between them governing the potential sale of the Property and development
of the Project on the Property, all subject to mutually agreeable terms, conditions, covenants, restrictions
and agreements to be negotiated and documented in a future disposition and development agreement
("DDA"). No DDA will be presented to the City Council for consideration until receipt of entitlements and
CEQA compliance has been achieved for all Phases of the Project by Developer.
NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE PARTIES
RELATING TO THE PROJECT AND THE COVENANTS AND PROMISES OF THE CITY AND THE
DEVELOPER SET FORTH IN THIS AGREEMENT, AND FOR GOOD AND VALUABLE
CONSIDERATION, THE SUFFICIENCY AND RECEIPT OF WHICH ARE HEREBY
ACKNOWLEDGED BY THE PARTIES. THE CITY AND THE DEVELOPER AGREE, AS FOLLOWS:
1. Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are
incorporated into this Agreement, in their entirety, by this reference.
2. Deposits.
(a) Within seven (7) days of the Effective Date of this Agreement, the Developer shall
pay to the City a deposit in the amount of $250,000.00 in immediately available funds ("City Costs
Deposit") to ensure that the Developer will proceed diligently and in good faith to fulfill its obligations
under this Agreement during the Negotiation Period (as defined in Section 3(a)), as part of the consideration
for the City's agreement not to negotiate with other persons during the Negotiation Period, and to defray
certain costs of the City in pursuing the contemplated negotiations with the Developer during the
Negotiation Period, pursuant to this Agreement. The City shall charge all staff and third party costs
(including reasonable consultant fees and attorney fees associated with review and implementation of this
Agreement and preparing the DDA) against the City Costs Deposit. If at any time the City Costs Deposit
balance falls to $25,000, Developer shall, within seven (7) calendar days after receiving written notice,
deposit an additional $50,000 to restore the City Costs Deposit. At the termination of this Agreement, if a
DDA is mutually approved and executed, any remaining City Costs Deposit funds shall be applied to the
purchase price or Developer's DDA Deposit, at Developer's option. If this Agreement expires by its own
terms without the Parties entering into a DDA, any remaining funds in the City Costs Deposit will be
returned to Developer within thirty calendar (30) days. Developer acknowledges that the City Costs
Deposit shall be in addition to those fees and expenses required by the City for any permit, other required
entitlement or project processing.
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3. Term of Agreement.
(a) The rights and duties of the City and the Developer established by this Agreement
shall commence on the first date on which all of the following have occurred (the "Effective Date"): (1)
execution of this Agreement by the authorized representative(s) of the Developer and delivery of such
executed Agreement to the City prior to consideration by the City governing body, and (2) approval of this
Agreement by the City governing body. If the City Costs Deposit is not received by the City within seven
(7) business days of the Effective Date, as set forth in Section 2(a) above, this Agreement shall be null and
void and have no further effect. However, if this Agreement is approved by the City Council and the City
Costs Deposit is received as provided herein, this Agreement shall continue in effect for the period of 730
calendar days immediately following the Effective Date ("Negotiation Period"), subject to the limitations
of Section 3(b).
(b) If Developer determines additional time is required to finalize the terms of a DDA,
Developer may request in writing one additional 180-calendar day extension of this Agreement. City
Manager, shall in his sole discretion, determine whether to grant such extension. Any additional extension
shall require an action of the City's governing body.
(c) This Agreement shall automatically expire and be of no further force or effect at
the end of the Negotiation Period (including any extension of the Negotiation Period in accordance with
Section 3(b)), unless, prior to that time, both the City and the Developer approve and execute a DDA
acceptable to both the City and the Developer, in their respective sole and absolute discretion, in which
case this Agreement will terminate on the effective date of such DDA. Alternatively, if Developer
determines the proposed project is not feasible, Developer may terminate this ENA prior to the expiration
of the Negotiation Period, at Developer's sole discretion.
4. Obligations of Parties.
(a) Developer Obligations: During the Negotiation Period, and pursuant to the
attached Milestone Schedule (Exhibit C), Developer shall proceed diligently and in good faith to develop
and present to City staff and, subsequently, to the City governing body, if appropriate, for review and
consideration, all of the following:
(i) A complete conceptual development plan for the Project, including all
proposed phases of the Project, on the Property, substantially approved by the City, that describes and
depicts: (1) the location and placement of all proposed buildings, (2) design and funding for all
infrastructure necessary for the Project, (3) the architecture and elevations of all proposed buildings
(residential and commercial), (4) floor plan(s) and associated use(s) of the buildings with parking
demand/provision, (5) preliminary material selection, and (6) landscape/hardscape concept plans.
(1) At Developer's option, certain infrastructure, including master
utilities and backbone infrastructure may be installed following execution of the DDA but prior to close of
escrow pursuant to a license agreement which will be negotiated with the City. Developer acknowledges
that any design, engineering, or construction work completed prior to the close of escrow shall be done at
Developer's sole cost and expense and any funds expended shall not be reimbursed by City if the transaction
fails to close.
(ii) Any zoning change, specific plan amendment or General Plan amendment
that is necessary to accommodate the Project on the Property. This shall include the processing of
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entitlements necessary for development of the Project, including but not limited to, any required document
under the California Environmental Quality Act.
(iii) Regular updates on Developer's ongoing efforts to secure tenants for the
commercial components of the Project and a proposed time schedule inclusive of pre -development,
takedown, and construction activities for the development of the Project on the Property by Phase.
(iv) Developer has provided a draft financing plan as part of the RFP response.
Developer shall provide updated proformas and updated financing plans including financing sources for all
Project improvements following establishment of a final purchase price for the property and as reasonably
requested by the City when there is a material change in the development plan for the project. The term
"material" means any change in circumstances related to the project that would significantly impact land
value, project feasibility, constructions costs, or financing. Said financing plans shall be in a form and
contain such information as reasonably required by City.
(b) City Obligations. During the Negotiation Period,
(i) Within thirty (30) calendar days of the Effective Date, Developer shall
provide to the City a final conceptual development plan ("Conceptual Development Plan") with sufficient
detail to allow for an appraisal of the Property based upon the intended uses to be prepared. Within sixty
(60) days of the City's receipt of the Conceptual Development Plan, the City shall obtain an appraisal of
the land based upon the intended use following entitlement of the Property for the Project to establish the
Fair Market Value and Purchase Price for the Property. If Developer does not agree with the appraised Fair
Market Value, Developer may commission its own appraisal for the City's consideration. Developer's
appraisal shall be prepared and provided to the City within sixty (60) days of Developer's receipt of City's
appraisal. If the City does not agree with the appraised Fair Market Value in the Developer's appraisal, the
Parties shall agree on a third appraiser to appraise the Property, and both Parties shall meet in good faith to
determine the Fair Market Value purchase price based upon the values determined by the respective
appraisals. If necessary, this third appraisal shall be completed within ninety (90) days of City's receipt of
Developer's appraisal. The City and Developer shall share the cost equally for the third appraisal if it is
necessary. The "Appraisal Date" is the day the Parties agree in writing on the Fair Market Value of the
Property. If the Parties cannot agree on the Fair Market Value of the Property either Party may terminate
this Agreement after providing 30-days written notice to allow a final good faith effort to come to terms
prior to termination.
Negotiation of DDA.
(a) During the Negotiation Period, the City and the Developer shall proceed diligently
and in good faith to negotiate a DDA between them. The City and the Developer shall generally cooperate
with each other and supply such available documents and information as may be reasonably requested by
the other to facilitate the conduct of the negotiations. Both the City and the Developer shall exercise
commercially reasonable efforts to complete discussions relating to the terms and conditions of a DDA and
such other matters, as may be mutually acceptable to both the City and the Developer, in their respective
sole discretion. The exact terms and conditions of a DDA, if any, shall be determined during the course of
these negotiations. Nothing in this Agreement shall be interpreted or construed to be a representation or
agreement by either the City or the Developer that a mutually acceptable DDA will be produced from
negotiations under this Agreement. Nothing in this Agreement shall impose any obligation on either Party
to agree to a definitive DDA in the future. Nothing in this Agreement shall be interpreted or construed to
be a guaranty, warranty or representation that any proposed DDA that may be negotiated by City staff and
the Developer will be approved by the City governing body. The Developer acknowledges and agrees that
the City's consideration of any DDA is subject to the sole and absolute discretion of the City governing
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body and all legally required public hearings, public meetings, notices, factual findings and other
determinations required by law.
(b) City and Developer have agreed the following concepts or terms shall be included
in the DDA:
(i) Profit Participation: The Parties will negotiate a profit participation
amount based upon the economic returns derived from the residential components of the Project. (the
"Participation").
(ii) Infrastructure: Developer shall be responsible for designing, installing and
funding all necessary infrastructure to serve the development.
(iii) Tustin Legacy Park Improvements: The Tustin Legacy Park shall be
improved, to the extent feasible, based upon a negotiated design plan. Said design plan shall be negotiated
prior to consideration of the DDA.
(iv) Affordability: A minimum of 15% of the total number of any residential
units within the development shall be made available to lower income households in compliance with the
Surplus Land Act. The City will not subsidize any component of the development.
(v) Tustin Legacy Backbone Infrastructure Financing Program: Changes to
the land use potential for Development Area D-5 will require revision/adjustment to the Tustin Legacy
Backbone Infrastructure Financing Program and the fair share contribution amount. Once the final land
use plan has been determined the program may be updated.
(vi) Community Facilities District (CFD). Developer acknowledges that the
City has formed a community facilities district for services funded by a Special Tax "B" ("Tax B") imposed
within the boundaries of the CFD to fund a portion of the City essential services, including, without
limitation, police and fire protection, ambulance and paramedic services, recreation programs and 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. Developer acknowledges and agrees that (a) the CFD shall impose Tax B upon the Property and
the improvements constructed thereon in connection with the Project in an amount to be determined in a
rate and method of apportionment ("RMA") to be adopted by the CFD; and (b) Tax B shall be perpetual
and shall not be time limited in any manner unless determined by the City in its sole discretion. Subject to
Developer's right to comment on the RMA, and all such comments shall be considered by the City in good
faith and incorporated as reasonably determined to be appropriate by the City, Developer agrees that it shall
not oppose and shall cooperate with the City and CFD in the adoption of the RMA and imposition of Tax
B upon the Property and that these provisions shall be incorporated into the DDA.
6. Due Diligence Investigations. As provided in the Milestone Schedule, Exhibit C,
Developer may conduct Due Diligence Investigations at its sole cost and expense.
(a) The City licenses, permits and authorizes the Developer to enter the Property for
the sole purpose of conducting the Due Diligence Investigations, at Developer's sole cost and subject to all
of the terms and conditions of this Agreement. Said license shall be revocable, in the City' discretion, for
any breach of this Agreement, following a ten (10) day prior written notice and cure period for Developer
to cure any alleged breach of this Agreement. The Developer shall not conduct any intrusive or destructive
testing of any portion of the Property, other than low volume soil samples and any reasonably necessary
non -intrusive geotechnical testing, without the written consent of the City, which shall not be unreasonably
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withheld. Prior to seeking City consent for any intrusive testing, Developer shall provide City with a work
plan describing the intended activities. Following the conduct of any Due Diligence Investigations on the
Property, the Developer shall restore the Property to substantially its condition prior to the conduct of such
Due Diligence Investigations. Developer shall ensure than no liens are filed against the Property as a result
of Developer's Due Diligence Investigation efforts. Due Diligence Investigations may include:
(i) Inspection of the physical condition of the Development Property;
(ii) Environmental investigations and studies, which may include, a Phase I
Environmental Assessment and/or a Phase II Environmental Assessment;
(iii) Geotechnical investigations which may include, geotechnical, seismic,
and both surface and subsurface soil conditions; and
(iv) Civil engineering studies which may include survey, topographical
grading, drainage and utility studies.
(b) Any Due Diligence Investigations of the Property by the Developer shall not
unreasonably disrupt any then existing use or occupancy of the Property or the operations of the City.
Developer acknowledges that there is an existing licensee on the site, West Coast Arborist, and that
Developer shall make every reasonable effort not to disrupt said licensee's use of the Property. Prior to any
such entry by Developer on the Property, Developer shall notify the City at least three (3) business days
prior to such Due Diligence Investigations of the Property. Prior to commencing any Due Diligence
Investigations of the Property, Developer shall also provide City with a certificate of insurance as required
by the Access Agreement between the parties, attached hereto as Exhibit D.
(c) The Developer shall defend (with counsel reasonably acceptable to the City),
protect, indemnify and hold harmless the City and its officers, elected officials, employees, and agents from
and against any and all claims, demands, damages, liabilities, losses, costs, or expenses, including attorneys'
fees (`Claims"), arising out of or related to Developer's Due Diligence Investigations, entry onto the
Property, or the acts or omissions of Developer or its officers, employees, agents, consultants, contractors,
or invitees, including but not limited to any injury to persons, damage to property, or release or disturbance
of hazardous or regulated materials occurring in connection with such activities, except the extent any
Claims arise out of the City's negligence or willful misconduct. This indemnification obligation shall
survive termination or expiration of this Agreement.
(d) Upon request, Developer shall provide City, at no cost to City, copies of all reports
prepared as a result of the Due Diligence Investigation.
7. Restrictions Against Change in Ownership, Management and Control of Developer
and Assignment of Agreement.
(a) The qualifications and identity of the Developer and its principals are of particular
concern to the City. It is because of these qualifications and identity that the City has entered into this
Agreement with the Developer. During the Negotiation Period, no voluntary or involuntary successor -in -
interest of the Developer shall acquire any rights or powers under this Agreement, except as provided in
Section 7(c).
(b) The Developer shall promptly notify the City in writing of any and all changes
whatsoever in the identity of the business entities or individuals either comprising or in Control (as defined
in Section 7(d)) of the Developer, as well as any and all changes in the interest or the degree of Control of
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the Developer by any such person, of which information the Developer or any of its shareholders, partners,
members, directors, managers or officers are notified or may otherwise have knowledge or information.
Upon the occurrence of any significant or material change, whether voluntary or involuntary, in ownership,
management or Control of the Developer (other than such changes occasioned by the death or incapacity
of any individual) that has not been approved by the City, prior to the time of such change, the City may
terminate this Agreement, without liability to the Developer or any other person and refund any remaining
deposit funds provided by the Developer to the City pursuant to Section 2(a), above, by sending written
notice of termination to the Developer, referencing this Section 7(b).
(c) Notwithstanding anything in this Agreement to the contrary, the Developer may
assign its rights under this Agreement to an Affiliate (as defined in Section 7(d)), such as a single purpose
LLC or another entity with shared ownership, on the condition that such Affiliate or another entity with
shared ownership expressly assumes all of the obligations of the Developer under this Agreement in a
writing reasonably satisfactory to the City (such satisfaction to be evidenced by the signature of the City
Manager on the writing), and further provided that Developer shall, at all times, control any such Affiliate
or other entity with shared ownership and be responsible and obligated directly to the City for performance
of the Developer's obligations under this Agreement.
(d) For the purposes of this Agreement, the term "Affiliate or other entity with shared
ownership" means any person, directly or indirectly, controlling or controlled by or under common control
with the Developer, or owned 5 1 % or more or otherwise controlled by Developer, whether by direct or
indirect ownership of equity interests, by contract, or otherwise. For the purposes of this agreement,
"Control" means possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity, whether by ownership of equity interests, by contract, or otherwise.
8. Obligations to Review Draft Agreements and Attend Meetings.
(a) During the Negotiation Period, each Party shall diligently review and comment on
draft versions of a DDA provided by the other Party and, if the terms and conditions of such a DDA are
agreed upon between City staff and the Developer, the Developer shall submit the DDA fully executed by
the authorized representative(s) of the Developer to the City Manager for submission to the City governing
body for review and approval or disapproval. Any future DDA shall consist of terms and conditions
acceptable to both the Developer and the City governing body, in their respective sole and absolute
discretion.
(b) During the Negotiation Period, the Developer shall also keep City staff advised on
the progress of the Developer in performing its obligations under this Agreement, on a regular basis or as
requested by City staff, including, without limitation, having one or more of the Developer's employees or
consultants who are knowledgeable regarding this Agreement, the design and planning of the Project and
the progress of negotiation of a DDA, such that such person(s) can meaningfully respond to City and/or
City staff questions regarding the progress of the design and planning of the Project or the negotiation of a
DDA, attend both: (1) periodic meetings with City staff, as reasonably scheduled and requested by City
staff during the Negotiation Period, which may be held telephonically. and (2) meetings of the City
governing body, when reasonably requested to do so by City staff. City designates Aldo Schindler, City
Manager and Brian Moncrief, Deputy City Manager — Real Property as its lead negotiators and primary
contacts. Developer designates Dan Almquist and Tom Carpenter as its lead negotiators and primary
contacts. Developer acknowledges that the Project Entitlements and any required CEQA document shall be
presented to the City's Planning Commission and, if required, the City Council prior to consideration of the
DDA by the City Council.
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9. Developer to Pay All Costs and Expenses. All fees or expenses of engineers, architects,
financial consultants, legal, planning or other consultants or contractors, retained by the Developer for any
study, analysis, evaluation, report, schedule, estimate, environmental review, planning and/or design
activities, drawings, specifications or other activity or matter relating to the Property or the Project or
negotiation of a DDA that may be undertaken by the Developer during the Negotiation Period, pursuant to
or in reliance upon this Agreement or in the Developer's discretion, regarding any matter relating to a DDA,
the Property or the Project, shall be the sole responsibility of and undertaken at the sole cost and expense
of the Developer and no such activity or matter shall be deemed to be undertaken for the benefit of, at the
expense of or in reliance upon the City. The Developer shall also pay all fees, charges and costs, make all
deposits and provide ail bonds or other security associated with the submission to and processing by the
City and/or the City of any and all applications and other documents and information to be submitted to the
City and/or the City by the Developer pursuant to this Agreement or otherwise associated with the Project.
The City shall not be obligated to pay or reimburse any expenses, fees, charges or costs incurred by the
Developer in pursuit of any study, analysis, evaluation. report, schedule, estimate, environmental review,
planning and/or design activities, drawings, specifications or other activity or matter relating to the Property
or the Project or negotiation of a DDA that may be undertaken by the Developer during the Negotiation
Period, whether or not this Agreement is, eventually, terminated or extended or a DDA is entered into
between the City and the Developer, in the future.
10. City Not to Negotiate With Others. During the Negotiation Period, the City and City
staff shall not negotiate with any other person regarding the sale, lease or redevelopment of the Property.
The tern "negotiate;' as used in this Agreement, means and refers to engaging in any discussions with a
person other than the Developer, regardless of how initiated, with respect to the availability of the Property
or that person's redevelopment of the Property, without the Developer's prior written consent. Developer
acknowledges that City may receive and retain unsolicited offers regarding redevelopment of the Property,
but shall not entertain any offer or negotiate with the proponent of any such offer during the Negotiation
Period. provided; however, that the City may notify such proponent that it is a party to this Agreement.
Developer acknowledges that the City is a public agency and subject to the provisions of the California
Public Records Act, Government Code Section 6254, et. seq. (the "Act"). The City shall use its best efforts
to inform Developer of any request for information received pursuant to the Act. If Developer believes the
information requested is confidential, Developer may pursue a court order preventing the release of the
requested information.
11. Acknowledgments and Reservations.
(a) The City and the Developer agree that, if this Agreement expires or is terminated
for any reason. or a future DDA is not approved and executed by both the City and the Developer, for any
reason, neither the City nor the Developer shall be under any obligation, nor have any liability to each other
or any other person regarding the sale, lease or other disposition of the Property or the development of the
Project or the Property.
(b) The Developer acknowledges and agrees that no provision of this Agreement shall
be deemed to be an offer by the City, nor an acceptance by the City of any offer or proposal from the
Developer for the City to convey any estate or interest in the Property to the Developer or for the City to
provide any financial or other assistance to the Developer for redevelopment of the Project or the Property.
(c) The Developer acknowledges and agrees that the Developer has not acquired, nor
will acquire, by virtue of the terms of this Agreement, any legal or equitable interest in real or personal
property from the City.
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(d) Certain development standards and design controls for the Project may be
established- between the Developer and the City, but it is understood and agreed between the City and the
Developer that the Project and the development of the Property must conform to all City and other
applicable governmental development, land use and architectural regulations and standards. Drawings,
plans and specifications for the Project shall be subject to the approval of the City through the standard
development application process for projects of this nature. Nothing in this Agreement shall be considered
approval of any plans or specifications for the Project or of the Project itself by the City.
(e) The City reserves the right to reasonably obtain further available information and
data to ascertain the ability and capacity of the Developer to acquire or lease, develop and operate the
Property and/or the Project. The Developer acknowledges that it may be requested to make certain financial
disclosures to the City, its staff, legal counsel or other consultants, as part of the financial due diligence
investigations of the City relating to the potential disposition of the Property and development of the Project
on the Property by the Developer and that any such disclosures may become public records. The City shall
maintain the confidentiality of financial information of the Developer to the extent allowed by law, as
determined by the City Attorney. Developer acknowledges there are certain encumbrances on the Property
including but not limited to a license agreement with West Coast Arborists that runs through September 30,
2030 but can be canceled following certain procedures.
12. Representations and Warranties.
(a) City Representations and Warranties. Where the representations and warranties of
City contained in this Section 12 are stated to be to the actual knowledge of City, "actual knowledge" shall
mean the actual knowledge of the City Manager or Deputy City Manager, Real Property Division as of the
Effective Date. All representations and warranties contained in this Section are true and correct as of the
Effective Date. City's liability for misrepresentation or breach of warranty, representation or covenant,
wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the
Closing. City hereby makes the following representations, covenants and warranties and acknowledges
that the execution of this Agreement by Developer has been made in material reliance by Developer on
such covenants, representations and warranties:
(i) City is a California municipal corporation, duly formed and operating
under the laws of the State of California. City has the legal power, right and authority to enter into this
Agreement and to execute the instruments and documents referenced herein, and to consummate the
transactions contemplated hereby.
(ii) The persons executing any instruments for or on behalf of City have been
authorized to act on behalf of City and, to the actual knowledge of City, this Agreement is valid and
enforceable against City in accordance with its terms and each instrument to be executed by City pursuant
hereto or in connection therewith will, when executed, shall be valid and enforceable against City in
accordance with its terms.
(iii) City has taken all requisite action and obtained all requisite consents for
agreements or matters to which City is a party in connection with entering into this Agreement and the
instruments and documents referenced herein and, to the actual knowledge of City, in connection with the
consummation of the transactions contemplated hereby.
(iv) To the actual knowledge of City, neither the execution of this Agreement
nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a
default under any other agreement, document, instrument or other obligation to which City is a party or by
5 5905.00004\44959731.19
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which City may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ,
injunction, order or decree of any court or governmental body applicable to City.
(v) If the City becomes aware of any act or circumstance that would change
or render incorrect, in whole or in part, any representation or warranty made by the City under this
Agreement, whether as of the date given or any time thereafter, whether or not such representation or
warranty was based upon the City's knowledge and/or belief as of a certain date, the City will give
immediate written notice of such changed fact or circumstance to the Developer.
(b) Developer Representations and Warranties. Where the representations and
warranties of Developer contained in this Section are stated to be to the actual knowledge of Developer,
"actual knowledge" shall mean the actual knowledge of Dan Almquist and Tom Carpenter as of the
Effective Date. All representations and warranties contained in this Section are true and correct as of the
Effective Date. Developer's liability for misrepresentation or breach of warranty, representation or
covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement
and the Closing. Developer hereby makes the following representations, covenants and warranties and
acknowledges that the execution of this Agreement by City has been made in material reliance by City on
such covenants, representations and warranties:
(i) Developer is a limited liability company, lawfully entitled to do business
in the State of California and the City. Developer has the legal right, power and authority to enter into this
Agreement and the instruments and documents referenced herein and to consummate the transactions
contemplated hereby. The persons executing this Agreement and the instruments referenced herein on
behalf of Developer hereby represent and warrant that such persons have the power, right and authority to
bind Developer.
(ii) Developer has taken all requisite action and obtained all requisite consents
in connection with entering into this Agreement and the instruments and documents referenced herein and,
to the actual knowledge of Developer, the consummation of the transactions contemplated hereby, and no
consent of any other party is required for Developer's authorization to enter into Agreement.
Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby shall result in a breach of or constitute a default under any other
agreement, document, instrument or other obligation to which Developer is a party or by which Developer
may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order
or decree of any court or governmental body applicable to Developer.
(iv) To the actual knowledge of Developer, this Agreement is, and all
agreements, instruments and documents to be executed by Developer pursuant to this Agreement shall be,
duly executed by and shall be valid and legally binding upon Developer and enforceable in accordance with
their respective terms.
(v) If the Developer becomes aware of any act or circumstance that would
change or render incorrect, in whole or in part, any representation or warranty made by the Developer under
this Agreement, whether as of the date given or any time thereafter, whether or not such representation or
warranty was based upon the Developer's knowledge and/or -belief as of a certain date, the Developer will
give immediate written notice of such changed fact or circumstance to the City.
(vi) Developer has the necessary expertise, experience and financial capability
to undertake development of the Project at the Development Parcel as contemplated by this ENA.
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(vii) Developer acknowledges that if the Property is acquired it shall be used
for the timely development of the Project consistent with a schedule of performance set forth in the future
agreement between the Parties and not for speculation in land holding.
(viii) Developer is experienced in development and understands the process and
requirements required to design, construct, develop and otherwise implement development projects such as
the Project described herein.
(ix) Developer is capable of acquiring the Property and developing the Project
with one or more capital partners and with financing pursuant to financing from a bank group or other
institutional lender at the close of escrow pursuant to the DDA. Developer has represented that it intends
to provide a combination of equity financing, financing from an institutional lender and that it will support
such financing with bank guaranties and indemnities.
13. Nondiscrimination. The Developer shall not discriminate against nor segregate any
person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national
origin or ancestry in undertaking its obligations under this Agreement.
14. City Breach - Limitation on Damages and Remedies.
(a) THE DEVELOPER AND THE CITY ACKNOWLEDGE THAT IT IS
EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES
THAT WOULD BE SUFFERED BY THE DEVELOPER UPON THE BREACH OF THIS AGREEMENT
BY THE CITY. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN
THE ACTUAL DAMAGES THE DEVELOPER WOULD SUFFER UPON THE BREACH OF THIS
AGREEMENT BY THE CITY, THE DEVELOPER AND THE CITY AGREE THAT A REASONABLE
ESTIMATE OF THE DEVELOPER'S DAMAGES IN SUCH EVENT IS AN AMOUNT EQUAL TO
THE TOTAL AMOUNTS DEPOSITED BY DEVELOPER WITH THE CITY FOR CITY COSTS ,
WITHOUT ANY SUBTRACTION FOR CITY COSTS INCURRED (THE "LIQUIDATED DAMAGES
AMOUNT"). THEREFORE, UPON THE BREACH OF THIS AGREEMENT BY THE CITY, THE CITY
SHALL PAY THE LIQUIDATED DAMAGES AMOUNT TO THE DEVELOPER AND THIS
AGREEMENT SHALL TERMINATE. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT
SHALL BE THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY
BREACH OF THIS AGREEMENT BY THE CITY. DEVELOPER SHALL NOT BE ENTITLED TO
ANY ADDITIONAL FUNDS UPON TERMINATION OF THIS AGREEMENT.
Initials of Authorized
Representative of City
0A4A
Initials of Authorized
Representative of Developer
(b) THE CITY AND THE DEVELOPER EACH ACKNOWLEDGE AND AGREE
THAT THE CITY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, IF IT WERE TO BE
LIABLE TO THE DEVELOPER FOR ANY ADDITIONAL MONETARY DAMAGES, MONETARY
RECOVERY OR ANY REMEDY OTHER THAN TERMINATION OF THIS AGREEMENT AND
PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY, THE CITY AND THE
DEVELOPER AGREE THAT THE DEVELOPER'S SOLE AND EXCLUSIVE RIGHT AND REMEDY
UPON THE BREACH OF THIS AGREEMENT BY THE CITY IS TO TERMINATE THIS
AGREEMENT AND RECEIVE THE LIQUIDATED DAMAGES AMOUNT.
5 5905.00004\44959731 19
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(c) THE DEVELOPER ACKNOWLEDGES THAT IT IS AWARE OF THE
MEANING AND LEGAL EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES:
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.
(d) CALIFORNIA CIVIL CODE SECTION 1542 NOTWITHSTANDING, IT IS
THE INTENTION OF THE DEVELOPER TO BE BOUND BY THE LIMITATION ON DAMAGES,
RECOVERY AND REMEDIES SET FORTH IN THIS SECTION 14, AND THE DEVELOPER
HEREBY RELEASES ANY AND ALL CLAIMS AGAINST THE CITY FOR ADDITIONAL
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF
RELATED TO ANY BREACH OF THIS AGREEMENT, EXCEPT RECEIPT OF THE LIQUIDATED
DAMAGES AMOUNT, WHETHER OR NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR
UNKNOWN TO THE DEVELOPER AS OF THE EFFECTIVE DATE OF THIS AGREEMENT. THE
DEVELOPER SPECIFICALLY WAIVES THE BENEFITS OF CALIFORNIA CIVIL CODE SECTION
1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS (WHETHER STATE OR
FEDERAL) OF SIMILAR EFFECT WITH REGARD TO THE LIMITATIONS ON DAMAGES AND
REMEDIES AND WAIVERS OF ANY SUCH DAMAGES AND REMEDIES CONTAINED IN THIS
SECTION 14.
Initials of Authorized
Representative of City
0M4
Initials of Authorized
Representative of Developer
15. Developer Breach — Limitation on Damages and Remedies.
(a) THE DEVELOPER AND THE CITY ACKNOWLEDGE THAT IT IS
EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES
THAT WOULD BE SUFFERED BY THE CITY UPON THE BREACH OF THIS AGREEMENT BY
THE DEVELOPER. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO
ASCERTAIN THE ACTUAL DAMAGES THE CITY WOULD SUFFER UPON THE BREACH OF
THIS AGREEMENT BY THE DEVELOPER, THE DEVELOPER AND THE CITY AGREE THAT A
REASONABLE ESTIMATE OF THE CITY'S DAMAGES IN SUCH EVENT IS ALL REMAINING
FUNDS IN THE CITY COSTS DEPOSIT PLUS ACCRUED INTEREST, IF ANY, (THE "LIQUIDATED
DAMAGES AMOUNT"). THEREFORE, UPON THE BREACH OF THIS AGREEMENT BY THE
DEVELOPER, THE DEVELOPER SHALL PAY THE LIQUIDATED DAMAGES AMOUNT TO THE
CITY AND THIS AGREEMENT SHALL TERMINATE. RECEIPT OF THE LIQUIDATED DAMAGES
AMOUNT SHALL BE THE CITY'S SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY
BREACH OF THIS AGREEMENT BY THE DEVELOPER.
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Initials of Authorized
Representative of City
Q/V,
Initials of Authorized
Representative of Developer
(b) THE CITY AND THE DEVELOPER EACH ACKNOWLEDGE AND AGREE
THAT THE DEVELOPER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, IF IT WERE
TO BE LIABLE TO THE CITY FOR ANY ADDITIONAL MONETARY DAMAGES, MONETARY
RECOVERY OR ANY REMEDY OTHER THAN TERMINATION OF THIS AGREEMENT AND
PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY, THE CITY AND THE
DEVELOPER AGREE THAT THE CITY'S SOLE AND EXCLUSIVE RIGHT AND REMEDY UPON
THE BREACH OF THIS AGREEMENT BY THE DEVELOPER IS TO TERMINATE THIS
AGREEMENT AND RECEIVE THE LIQUIDATED DAMAGES AMOUNT.
(c) THE CITY ACKNOWLEDGES THAT IT IS AWARE OF THE MEANING
AND LEGAL EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES:
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.
(d) CALIFORNIA CIVIL CODE SECTION 1542 NOTWITHSTANDING, IT IS
THE INTENTION OF THE CITY TO BE BOUND BY THE LIMITATION ON DAMAGES,
RECOVERY AND REMEDIES SET FORTH IN THIS SECTION 145, AND THE CITY HEREBY
RELEASES ANY AND ALL CLAIMS AGAINST THE DEVELOPER FOR ADDITIONAL
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF
RELATED TO ANY BREACH OF THIS AGREEMENT, EXCEPT RECEIPT OF THE LIQUIDATED
DAMAGES AMOUNT, WHETHER OR NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR
UNKNOWN TO THE CITY AS OF THE EFFECTIVE DATE OF THIS AGREEMENT. THE CITY
SPECIFICALLY WAIVES THE BENEFITS OF CALIFORNIA CIVIL CODE SECTION 1542 AND
ALL OTHER STATUTES AND JUDICIAL DECISIONS (WHETHER STATE OR FEDERAL) OF
SIMILAR EFFECT WITH REGARD TO THE LIMITATIONS ON DAMAGES AND REMEDIES AND
WAIVERS OF ANY SUCH DAMAGES AND REMEDIES CONTAINED IN THIS SECTION 15.
Initials of Authorized
Representative of City
16. Default.
OMA
Initials of Authorized
Representative of Developer
(a) Failure or delay by either Party to perform any material term or provision of this
Agreement shall constitute a default under this Agreement. If the Party who receives notice of a default
from the other Party cures, corrects or remedies the alleged default within thirty (30) calendar days after
receipt of written notice by the other Party specifying such default, such Party shall not be in default under
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this Agreement. The notice and cure period provided in the immediately preceding sentence shall not, under
any circumstances, extend the Negotiation Period. If there are less than thirty (30) calendar days remaining
in the Negotiation Period, the cure period allowed pursuant to this Section 16(a) shall be automatically
reduced to the number of calendar days remaining in the Negotiation Period. Nothing in this subparagraph
(a) prohibits the parties from extending the Negotiation Period by mutual agreement in accordance with
subparagraph 3(b) above.
(b) The Party claiming that a default has occurred shall give written notice of default
to the Party claimed to be in default, specifying the alleged default. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of default. However, the injured Party shall
have no right to exercise any remedy for a default under this Agreement, without first delivering written
notice of the default and allowing the applicable period to cure any such default as set forth in Section 16(a).
(c) Any failure or delay by a Party in asserting any of its rights or remedies as to any
default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
(d) If a default of either Party remains uncured for more than thirty (30) calendar days
following receipt of written notice of such default, a "breach" of this Agreement by the defaulting Party
shall be deemed to have occurred. In the event of a breach of this Agreement, the sole and exclusive remedy
of the Party who is not in default shall be to terminate this Agreement by serving written notice of
termination on the Party in breach and, in the case of a breach by the City, the Developer shall also be
entitled to receive the Liquidated Damages Amount.
17. Compliance with Law. The Developer acknowledges that any future DDA, if approved
by the governing body of the City, will require the Developer (among other things) to carry out the
development of the Project in conformity with all applicable laws, including all applicable building,
planning and zoning laws, environmental laws, safety laws and federal and state labor and wage laws.
18. Press Releases. The Developer agrees to obtain the approval of the City Manager or his or
her designee or successor in function of any press releases Developer may propose relating to the draft
terms of the of the lease or DDA, prior to publication. Developer shall not include any direct quotes from
City Staff or City Councilmembers without the approval of City Manager, or his or her designee. This
Section 18 does not apply to the publication of information that is already public, specifically including but
not limited to all information already included on City Council agenda materials or discussed at any City
public hearing . The rights and obligations in this provision shall also not apply to leasing and marketing
brochures and/or information distributed by email or placed online on a brokerage website or real estate
website such as LoopNet.com.
19. Notice. All notices required under this Agreement shall be presented in person, by
nationally recognized overnight delivery service, by email with acknowledgment from the receiving party,
or by facsimile and confirmed by first class certified or registered United States Mail, with return receipt
requested, to the address and/or fax number for the Party set forth in this Section 19. Notice shall be deemed
confirmed by United States Mail effective the third (3rd) business day after deposit with the United States
Postal Service. Notice by personal service or nationally recognized overnight delivery service shall be
effective upon delivery. Either Party may change its address for receipt of notices by notifying the other
Party in writing. Delivery of notices to courtesy copy recipients shall not be required for valid notice to a
Party
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TO DEVELOPER:
TOM CARPENTER
ALMQUIST
31801 Paseo Adelanto
San Juan Capistrano, CA 92675
Michael Burnett
ALMQUIST
31801 Paseo Adelanto
San Juan Capistrano, CA 92675
JOHN RAMIREZ
RUTAN & TUCKER
18575 JAMBOREE ROAD, 9TH FLOOR
IRVINE, CA 92612
JRAMIREZ@RUTAN.COM
TO CITY: ALDO SCHINDLER,
CITY MANAGER
300 CENTENNIAL WAY
TUSTIN, CA 92780
Email: ciiN mania` r 0 RIStinca.Qr'r
DAVID KENDIG, CITY ATTORNEY
WOODRUFF AND SMART, APC
555 ANTON BLVD., SUITE 1200
COSTA MESA, CA 92626
Email: dkendig@woodruff.law
ELIZABETH WAGNER HULL
SPECIAL COUNSEL
BEST BEST & KRIEGER, LLP
18101 VON KARMAN AVE, SUITE 1000
IRVINE, CA 92612
Email: Eli/abetb.bull c bbKla«.com
20. Warranty Against Payment of Consideration for Agreement. The Developer warrants
that it has not paid or given, and will not pay or give, any third party any money or other consideration for
obtaining this Agreement. Third parties, for the purposes of this Section 20, shall not include persons to
whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants,
engineers, architects, brokers and other consultants, when such fees are considered necessary by the
Developer.
21. Acceptance of Agreement by Developer. The Developer shall acknowledge its
acceptance of this Agreement by delivering to the City three (3) original counterpart executed copies of this
Agreement signed by the authorized representative(s) of the Developer.
22. Counterpart Originals. This Agreement may be executed by the City and the Developer
in multiple counterpart originals, all of which together shall constitute a single agreement.
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23. No Third -Party Beneficiaries. Nothing in this Agreement is intended to benefit any
person or entity other than the City or the Developer.
24. Governing Law and Venue. The City and the Developer acknowledge and agree that this
Agreement was negotiated, entered into and is to be fully performed in the City of Tustin, California. The
City and the Developer agree that this Agreement shall be governed by, interpreted under, and construed
and enforced in accordance with the laws of the State of California, without application of such laws'
conflicts of laws principles. Venue for any related legal action shall be Orange County, California.
25. Waivers. No waiver of any breach of any term or condition contained in this Agreement
shall be deemed a waiver of any preceding or succeeding breach of such term or condition, or of any other
term or condition contained in this Agreement. No extension of the time for performance of any obligation
or act, no waiver of any term or condition of this Agreement, nor any modification of this Agreement shall
be enforceable against the City or the Developer, unless made in writing and executed by both the City and
the Developer.
26. Construction. Headings at the beginning of each section and sub -section of this
Agreement are solely for the convenience of reference of the City and the Developer and are not a part of
this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural
and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it
had been prepared by one or the other of the City or the Developer, but rather as if both the City and the
Developer prepared this Agreement. Unless otherwise indicated, all references to sections are to this
Agreement. All exhibits referred to in this Agreement are attached to this Agreement and incorporated into
this Agreement by this reference. If the date on which the City or the Developer is required to take any
action pursuant to the terms of this Agreement is not a business day of the City, the action shall be taken
on the next succeeding business day of the City.
26. Attorneys' Fees. If either Party hereto files any action or brings any action or proceeding
against the other arising out of this Agreement, then the prevailing Party shall be entitled to recover as an
element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the court, in such
action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the
purposes hereof the words "reasonable attorneys' fees" mean and include, in the case of either Party, salaries
and expenses of the lawyers working for or employed by such Party (allocated on an hourly basis) to the
extent they provide legal services to such Party in connection with the representation of that Party in any
such matter and shall not exceed a rate of $450 per hour.
[Signatures on following page]
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THE CITY OF TUSTIN
EXCLUSIVE NEGOTIATION AGREEMENT
(TUSTIN LEGACY 52 AC. SITE)
IN WITNESS WHEREOF, the City and the Developer have executed this Agreement on the dates
indicated next to each of the signatures of their authorized representatives, as appear below.
Dated: 6 — I I — Z
Dated:
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
Special Counsel
DEVELOPER:
Tustin Legacy Mixed Use LLC
a California limited liability company
f�
Rv:
Name: C>. t./40 vI �"-
Its: Al Aw A
CITY:
THE CITY OF TUSTIN
By:
Name:
Its:
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EXHIBIT "A"
TO
EXCLUSIVE NEGOTIATION AGREEMENT
Propegy Legal Description
The Land referred to herein below is situated in the City of Tustin, County of Orange, State of California,
and is described as follows:
TRACT 1:
LOTS 1 THROUGH 4,12 AND LETTERED LOTS A THROUGH D, G, I AND AA, BB, GG, PP AND
QQ OF TRACT NO. 17144, AS SHOWN ON A MAP FILED IN BOOK 906. PAGES 05 THROL�GH 14,
INCLUSIVE OF MISCELLANEOUS MAPS, AS AMENDED BY TRACT MAP CERTIFICATE OF
CORRECTION EXECUTED BY KEVIN R. HILLS, COUNTY SURVEYOR AND CRAIG S.
WEHRMAN, CHIEF DEPUTY SURVEYOR DATED DECEMBER 18, 2015, RECORDED ON
DECEMBER 21, 2015 AS INSTRUMENT NO. 2015-642502 OF OFFICIAL RECORDS OF ORANGE
COUNTY, CALIFORNIA.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
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 LAND, TOGETHER WITH THE PERPETUAL RIGHT OF
DRILLING, MINING, EXPLORING FOR AND STORING IN AND REMOVING THE SAME FROM
THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE LAND, OIL OR GAS
WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE
LAND AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS,
TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS
THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND
OPERATE ANY SUCH WELL OR MINES; BUT WITHOUT, HOWEVER, THE RIGHT TO DRILL,
MINE, STORE, EXPLORE OR OPERATE THROUGH THE SURFACE OF THE LAND, AS
RESERVED IN THE DEED FROM THE CITY OF TUSTIN, CALIFORNIA, RECORDED JUNE 19,
2007 AS INSTRUMENT NO. 2007000390804 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, WATER RIGHTS OR INTERESTS
THEREIN APPURTENANT OR RELATING TO THE LAND OR OWNED OR USED BY THE
GRANTOR IN CONNECTION WITH OR WITH RESPECT TO THE LAND (NO MATTER HOW
ACQUIRED BY THE GRANTOR), WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN,
OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING, ADJUDICATED, STATUTORY OR
CONTRACTUAL, TOGETHER WITH THE PERPETUAL RIGHT AND POWER TO EXPLORE,
DRILL, REDRILL AND REMOVE THE SAME FROM OR IN THE LAND, TO STORE THE SAME
BENEATH THE SURFACE OF THE LAND AND TO DIVERT OR OTHERWISE UTILIZE SUCH
WATER, RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY
GRANTOR; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON OR USE THE SURFACE
OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE
CITY OF TUSTIN, CALIFORNIA, RECORDED JUNE 19, 2007 AS INSTRUMENT NO.
1007000390804 OF OFFICIAL RECORDS.
EXHIBIT A
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TRACT 2:
THOSE PORTIONS OF LOTS 99 AND 104 OF BLOCK 9 OF IRVINE'S SUBDIVISION, AS PER
MAP FILED IN
BOOK I. PAGE 88 OF MISCELLANEOUS RECORD MAPS.
EXCEPTING THEREFROM LOTS 1 THROUGH 12; A THROUGH K AND "AA" THROUGH "RR"
OF TRACT NO. 17144, AS SHOWN ON A MAP FILED IN BOOK 906. PAGE 05 THROUGH 14,
INCLUSIVE OF MISCELLANEOUS MAPS,, AS AMENDED BY TRACT MAP CERTIFICATE OF
CORRECTION EXECUTED BY KEVIN R. HILLS, COUNTY SURVEYOR AND CRAIG S.
WEHRMAN, CHIEF DEPUTY SURVEYOR DATED DECEMBER 18, 2015, RECORDED ON
DECEMBER 21, 2015 AS INSTRUMENT NO. 2015-642502 OF OFFICIAL RECORDS OF ORANGE
COUNTY, CALIFORNIA.
For conveyancing purposes only:
APN 430-272-04 (Affects Lot I of Tract 1);
430-272-07 (Affects Lot AA of Tract 1);
430-272-08 (Affects Lot BB of Tract 1);
430-272-11 (Affects Lot 2 of Tract 1);
430-272-12 (Affects Lot 4 of Tract 1);
430-272-14 (Affects Lot 3 of Tract 1);
430-272-15 (Affects Lot 1 of Tract 1);
430-272-20 (Affects Lot A of Tract 1);
430-272-21 (Affects Lot GG of Tract 1);
430-272-22 (Affects Lot B of Tract 1);
430-272-23 (Affects Lot C of Tract 1);
430-272-24 (Affects Lot D of Tract 1);
430-272-26 (Affects Lot G of Tract 1);
430-272-27 (Affects Lot QQ of Tract 1);
430-272-28 (Affects Lot PP of Tract 1);
430-272-13 (Affects Lot 12 of Tract 1) and
430-272-29 (Affects Tract 2)
EXHIBIT A
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EXHIBIT "B"
TO
EXCLUSIVE NEGOTIATION AGREEMENT
Conceptual Site Plan
[To Be Attached Behind This Cover Page]
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"V *uAm
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EXHIBIT "C"
TO
EXCLUSIVE NEGOTIATION AGREEMENT
Milestone Schedule
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Milestones
Timing
Project Development Schedule
30 Days from Effective Date
Conceptual Development Plan
30 Days from Effective Date
Appraisal to be obtained by City
60 Days from receipt of Conceptual Development Plan.
Developer shall have 60 Days from its receipt of City's
appraisal to obtain its own appraisal, if necessary.
Term Sheet (DDA)
90 Days from the date upon which the City and Developer
agree upon the appraisal (the "Appraisal Date").
Updated Financing Plan as required by Section
4(a)(iv)
120 Days from the Appraisal Date
Due Diligence
120 Days from the Appraisal Date
Entitlement Submittal
365 Days from the Appraisal Date
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EXHIBIT "D"
TO
EXCLUSIVE NEGOTIATION AGREEMENT
Access Agreement
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City of Tustin
INSERT DEPARTMENT
300 Centennial Way
Tustin, California 92780
I LICENSE PROJECT
GRANT OF ACCESS AGREEMENT
LOCATION:
INSERT SPECIFIC
PROPERTY/PORTION
CITY OF TUSTIN
GRANT OF ACCESS AGREEMENT
(TUSTIN LEGACY 52 ACRE SITE)
This City of Tustin Grant of Access Agreement (this "Agreement") is made and entered
into this day of , 2026 (the "Effective Date") by and between the City of Tustin,
a California municipal corporation (the "City"), and Almquist, a California corporation (the
"Licensee"). City and Licensee may each be referred to herein as a "Party" or collectively as the
"Parties".
1. The City is the owner of that certain real property located at the southerly corner of the
intersection of Red Hill Avenue and Warner Avenue in the City of Tustin, County of
Orange, California (APN 430-272-11-15, 22, 24, 26-28 and portions of APN 430-272-04,
07, 08, 20-23) (the "Property"). The Licensee has proposed the development of the
Property and desires to enter the Property to perform certain predevelopment studies
("Licensee Work") as more particularly described in Exhibit B.
2. City hereby agrees to allow Licensee and its employees, contractors, subcontractors,
material suppliers, agents, and consultants (collectively, "Licensee Agents") to enter into
the Property for the sole purpose of conducting Licensee's Work at Licensee's sole cost
and subject to all of the terms and conditions of this Agreement. Neither Licensee nor
Licensee Agents shall perform any other activities that involve digging, drilling, cutting,
or boring into the Property without the prior written consent of City. The activities
expressly described in Exhibit B shall be deemed approved by City and shall not require
any additional consent. Upon written request from City, Licensee will provide copies of
any completed surveys, reports or other work to City within 30 days of completion of
Licensee's Work.
3. The term of this Agreement shall commence on the Effective Date and shall terminate
ninety (90) calendar days thereafter (the "Entry Period). This License shall be revocable,
in the City' discretion, for any breach of this Agreement, following a ten (10) day prior
written notice and cure period for Licensee to cure any alleged breach of this Agreement.
4. Prior to entry onto the Property, Licensee or Licensee's Agent shall provide City with at
least seventy-two (72) hours advanced written notice. Said notice shall be provided to
Brian Moncrief, Deputy City Manager, at binoiIC641` 1 1LlS iiica.oir and shall describe the
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date, times and description of the work to be performed. If there are modifications to the
schedule or the nature of the work to be performed, Licensee shall inform Mr. Moncrief
prior to proceeding. City shall reasonably coordinate with any tenants, occupants, or users
of the Property to provide Licensee with safe and timely access and mutually acceptable
work windows. Any of Licensee's Work performed on the Property by the Licensee shall
not unreasonably disrupt any then existing use or occupancy of the Property or the
operations of the City. Licensee acknowledges that there is an existing licensee on the site,
West Coast Arborist, and that Licensee shall make every reasonable effort not to disrupt
said West Coast Arborist's use of the Property.
5. Licensee acknowledges and agrees that Licensee's Work contemplated herein is performed
at Licensee's and Licensee Agents' sole risk. Licensee agrees the granting of this Access
Agreement or the performance of Licensee's work does not commit the City to enter into
a Disposition and Development Agreement or other agreement for the eventual sale or
development of the Property and that any expense incurred as result of entering into this
Access Agreement shall not be recoverable from the City under any circumstances.
6. Indemnification — Licensee shall indemnify, defend (with counsel reasonably acceptable
to City) and hold harmless City and its authorized officers, employees, agents, and
volunteers from any and all claims, actions, losses, damages, and/or liability resulting in
property damage or personal injury (including death) arising out of Licensee's or Licensee
Agents' entry onto the Property or performance of Licensee's Work under this Agreement,
and including the acts, errors or omissions of any person and for any costs or expenses
actually incurred by City on account of any such claim except where such indemnification
is prohibited by law.
Licensee's indemnification obligation does not apply to the "negligence" or "willful
misconduct" within the meaning of California Civil Code Section 2782, of City, or City's
third -party licensee, tenant, or any other occupant of the Property or its employees, agents,
tenants, or contractors, nor to pre-existing conditions or circumstances not caused or
exacerbated by Licensee's activities. This indemnity shall survive the expiration or earlier
termination of this Agreement.
7. Insurance Requirements — Licensee or Licensee Agents' shall satisfy the insurance
requirements set forth in Exhibit "C" to this Agreement prior to entering the Property.
8. Licensee and Licensee Agents must abide by all applicable and pertinent laws, rules, and
regulations of the United States of America, State of California, County of Orange, or any
other duly constituted public authority having jurisdiction for the Property and Licensee's
Work. Licensee shall, at its sole cost and expense, obtain or cause to be obtained all
necessary permits and authorizations from all relevant authorities prior to the performance
of Licensee's Work on the Property. City shall reasonably cooperate (at no cost to the City)
in executing owner/acknowledgment forms as needed.
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9. This Agreement is subject to any easements, rights, and restrictions affecting the Property
that exist as of the Effective Date (whether recorded or not). Licensee, on behalf of itself
and for Licensee Agents, waives all claims, actions, losses, damages, and/or liability of any
kind or nature against City arising out of the condition(s) of the Property or Licensee's use
of the Property, except to the extent caused by the negligence or willful misconduct of City.
10. This Agreement is intended by the parties as a final expression of their understanding with
respect to the matters contained herein and is a complete and exclusive statement of the
terms and conditions thereof and supersedes all other prior agreements or understandings
pertaining to the matters covered in this Agreement. This Agreement shall not be changed,
modified, or amended except as agreed in a written amendment to this Agreement executed
by the Parties.
11. If any legal action is instituted to enforce or declare any party's rights hereunder, each party
in such action, including the prevailing party, must bear its own costs and attorneys' fees.
This paragraph shall not apply to those costs and attorneys' fees arising from any third -
party legal action against City, including such costs and attorneys' fees payable pursuant
to the indemnification set forth in Paragraph 6 of this Agreement.
12. Licensee agrees that it does not have and will not claim at any time any interest or estate
of any kind or extent whatsoever in the Property by virtue of this Agreement. This
Agreement is not assignable.
13. This Agreement may be executed in any number of counterparts, each of which so executed
shall be deemed to be an original, and such counterparts shall together constitute one and
the same agreement.
14. This Agreement shall be construed in accordance with and governed by the laws of the
State of California. The parties agree that the venue for any action or claim brought by any
party to this Agreement or any third party will be the Superior Court of California, in the
County of Orange.
IN WITNESS WHEREOF, the City and the Licensee have executed this Agreement on the
dates indicated next to each of the signatures of their authorized representatives, as appear below.
Dated: b - \1- Zb
LICENSEE:
Almquist,
a California corporation
By: �
Name: 0. /*L /U? Q
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Dated:
ATTEST:
USA
City Clerk
Its: CHyEar E EWTv-A oVF\LCQ.
CITY:
THE CITY OF TUSTIN, a California
municipal corporation
Name:
Its:
APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
Special Counsel
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EXHIBIT A
Property
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EXHIBIT B
LICENSEE'S WORK
Geotechnical investigations which may include, geotechnical, seismic, and both surface and
subsurface soil conditions. This specifically includes, but is not necessarily limited to, conducting
a Phase I Environmental Assessment and survey of the Property.
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EXHIBIT C
INSURANCE REQUIREMENTS
CALIFORNIA INSURANCE POOL AUTHORITY
INSURANCE REQUIREMENTS
GRANT TO ACCESS LOCATION
The City reserves the right to modify these requirements, including limits, based on the nature of the risk,
prior experience, insurer, coverage, or other special circumstances. If the existing policies do not meet the
insurance requirements set forth herein, Licensee agrees to amend, supplement, or endorse the policies
to do so.
Without limiting the indemnity provisions of this Agreement, Licensee shall procure and maintain in full force
and effect during the term of this Agreement, the following policies of insurance, as applicable.
1. Minimum Scope and Limit of insurance
A. Commercial General Liability (CGL) which affords coverage at least as broad as Insurance
Services Office "occurrence" form CG 00 01, including products and completed operations,
property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000
per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be twice the required
occurrence limit. Subject to section 12 of this Exhibit C, the minimum limit may be achieved with a
combination of Commercial General Liability and Excess Liability policies.
B. Automobile Liability Insurance When Licensee has any employees, Licensee shall purchase
with coverage at least as broad as Insurance Services Office Form CA 00 01 covering any auto
(Code 1), or if Licensee has no owned autos, coverage for hired autos (Code 8) and non -owned
autos (Code 9) with limit no less than $1,000,000 each accident for bodily injury and property
damage. The policy shall be endorsed to include Transportation Pollution Liability insurance
covering materials to be transported by Licensee unless coverage is provided on the Licensees
Pollution Liability and/or Errors & Omissions policy.
C. Workers' Compensation. When Licensee has any employees, Licensee shall purchase as
required by the State of California with statutory limits, and Employer's Liability Insurance with a
limit of not less than $1,000,000 each accident for bodily injury and each employee for disease.
D. Professional Liability with limits of no less than $2,000,000 each claim and $2,000,000 in the
aggregate. Covered professional services shall specifically include all work to be performed under
the Agreement and delete any exclusion that may potentially delete coverage for the work to be
performed (e.g., any exclusions relating to lead, asbestos, pollution, testing, underground storage
tanks, laboratory analysis, soil work, etc.)
E. Contractor's Pollution Liability insurance covering Licensee and each of its contractors and
subcontractors performing environmental investigation, sampling, drilling, or subsurface testing
against pollution conditions arising from such activities, including unknown pre-existing pollution
conditions, with limits of at least $5 million per claim.
2. Endorsements
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Insurance policies shall not be compliant if they include any limiting provision or endorsement contrary to
this agreement, including but not limited to restricting coverage to the sole liability of Licensee, excluding
contractual liability or excluding third party -over actions. The following endorsements shall be provided to
the City.
A. Commercial General Liability, Automobile Liability, and Licensees Pollution Legal Liability:
1. Additional Insured: The City, its elected officials, officers, employees, volunteers,
commissions, boards, agents, and representatives are to be covered as additional insureds
with regard to liability and defense of suits or claims arising out of the work or operations
performed by or on behalf of the Licensee including materials, parts or equipment furnished in
connection with such work or operations.
Commercial General Liability additional insured endorsements shall be at least as broad as
ISO Form(s) CG 20 10 11 85; or both CG 20 10 or CG 20 26, and CG 20 37.
2 Primary and Non -Contributory: This insurance is primary to and will not seek contribution
from any other insurance whether primary, excess, umbrella, or contingent insurance, including
deductible, or self-insurance available to the City, its elected officials, officers, employees,
volunteers, commissions, boards, agents, and representatives as additional insureds.
The Commercial General liability primary endorsements shall be at least as broad as ISO CG
2001 04 13.
B. Workers' Compensation:
Waiver of Subrogation: When Licensee has any employees, any right of subrogation against
the City, its elected officials, officers, employees, volunteers, boards, agents, and
representatives shall be waived by endorsement issued by the insurer. Licensee, on behalf of
itself and all those claiming by, through or on behalf of Licensee, hereby waives all rights of
subrogation against the City, its elected officials, officers, employees, volunteers, boards,
agents, and representatives
3.Insurance Obligations of Licensee
The City requires and shall be entitled to the Licensee's broader coverage and/or the higher limits if
Licensee maintains broader coverage and/or higher limits than the minimums shown above. Any
available insurance proceeds excess of the specified minimum limits of insurance and coverage shall
be available to the City. No representation is made that the minimum insurance requirements of this
Agreement are sufficient to cover the obligations of Licensee under this Agreement.
4. Notice Of Cancellation
Required insurance policies shall not be cancelled or coverage reduced until thirty (30) days written
notice of cancellation has been served upon the City, except ten (10) days shall be allowed for non-
payment of premium.
5. Waiver Of Subrogation
Required insurance policies shall not prohibit Licensee from waiving the right of subrogation prior to a
loss. The Licensee shall waive all rights of subrogation against the indemnified parties and policies
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shall contain or be endorsed to contain such a provision. This provision applies regardless of whether
the City has received a waiver of subrogation endorsement from the insurer.
6. Evidence Of Insurance
All policies, endorsements, certificates, and/or binders shall be subject to approval by the City as to
form and content These requirements are subject to amendment or waiver only if approved in writing
by the City. The City reserves the right to require complete, certified copies of all required insurance
policies, including endorsements required by these specifications, at any time. The certificates and
endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf. Within ten (10) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or extended shall be filed with the
City. If such coverage is cancelled or reduced, Licensee shall, within ten (10) days after receipt of
written notice of such cancellation or reduction of coverage, file with the City evidence of insurance
showing that the required insurance has been reinstated or has been provided through another
insurance company or companies.
7.Self-Insured Retention
Self -insured retentions (SIR's) must be declared to and approved by the City. The City may require
Licensee to purchase coverage with a lower retention or provide proof of ability to pay losses and
related investigations, claim administration, and defense expenses within the SIR. The policy language
shall provide, or be endorsed to provide, that the SIR may be satisfied by either the named insured or
the City. Self -insured retentions shall be the sole responsibility of Licensee, or sub -licensee who
procured such insurance. The City may deduct from any amounts otherwise due Licensee to fund the
SIR. The policy must also provide that defense costs, including the allocated loss adjustment
expenses, will satisfy the SIR.
8.Contractual Liability
The coverage provided shall apply to the obligations assumed by Licensee under the indemnity
provisions of this Agreement.
9. Failure To Maintain Coverage
The Licensee agrees to suspend and cease all operations hereunder during such time as the required
insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The
City shall have the right to withhold any payment due until the Licensee has fully complied with the
insurance provisions of this Agreement. If the Licensee's operations are suspended for failure to
maintain required insurance coverage, Licensee shall not be entitled to an extension of time for
completion of the work because of production lost during suspension.
10. Acceptability Of Insurers
Each such policy shall be from a company or companies with a current A.M. Best's rating of no less
than A:VII and authorized to do business in the State of California or otherwise allowed to place
insurance through surplus line brokers under applicable provisions of the California Insurance Code or
any federal law. Any other rating must be approved in writing by the City.
11. Claims Made Policies
If coverage is written on a claims -made basis, the retroactive date of such insurance and all subsequent
insurance shall coincide or precede the effective date of Licensee's initial Agreement with the City and
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continuous coverage shall be maintained, or an extended reporting period shall -be exercised for a
period of at least ten (10) years from termination or expiration of this Agreement.
12. Excess Umbrella Liability Policies
If any excess or umbrella liability policies are used to meet the limits of liability required by this
Agreement, then said policies shall be "following form" of the underlying policy coverage, terms,
conditions, and provisions and shall meet all the insurance requirements stated in this Agreement,
including, but not limited to the additional insured, primary & non-contributory and waiver of subrogation
insurance requirements stated herein. No insurance policies or self-insurance maintained by the City,
whether primary, reinsurance or excess, and which also apply to a loss covered hereunder, shall be
called upon to contribute to a loss until Licensee's primary and excess/umbrella liability policies are
exhausted.
13. Insurance For Sub -Licensees
Licensee shall be responsible for causing sub -licensees
insurance in compliance with the terms of this Agreement,
insured, providing primary and non-contributory coverag
licensee's policies.
to purchase the same types and limits of
including adding the City as an additional
e and waiver of subrogation to the sub-
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