HomeMy WebLinkAboutORD 1423 (2012)AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN, CALIFORNIA, APPROVING DEVELOPMENT
AGREEMENT 2012 -002, AS DEFINED BY SECTION
65865.2 OF THE CALIFORNIA GOVERNMENT CODE,
BETWEEN THE CITY OF TUSTIN AND ST. ANTON
PARTNERS, LLC (THE DEVELOPER), A CALIFORNIA
LIMITED LIABILITY COMPANY PERTAINING TO
DEVELOPMENT OF 225 AFFORDABLE RESIDENTIAL
APARTMENTS, AT DISPOSITION PACKAGE 1A- NORTH,
WITHIN PLANNING AREA 15, NEIGHBORHOOD G, OF THE
MCAS TUSTIN SPECIFIC PLAN, TUSTIN, CALIFORNIA.
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council of the City of Tustin finds:
A. That to strengthen the public planning process, encourage private
participation in comprehensive planning, and reduce the economic risk of
development, the California Legislature adopted the Development
Agreement Statute of the Government Code (Section 65864 et seq. of the
Government Code), and the Tustin City Council adopted Sections 9600 to
) tY p
9619 of the Tustin City Code. Pursuant to the Statute and City Code, the
City may enter into an agreement with any person having a legal or
equitable interest in real property and to provide for the development of
such property and to establish certain development rights therein;
B. That MCAS Tustin Specific Plan, Section 4.2.9, requires a Development
Agreement for all private development at Tustin Legacy;
C. That Development Agreement (DA) 2012 -002 is proposed by St. Anton
Partners, LLC. (the Developer), a California and Delaware limited liability
company for its proposal to construct 225 affordable residential apartment
units, including 88 very -low income units, 73 low- income units, and 64
moderate - income units.
D. That the purpose of DA 2012 -002 is to give the developer certain
assurances that in return for Developer's commitment to develop the
Property that is contained in Disposition and Development Agreement
(DDA) 2012 -002, the City will in turn remain committed to the DDA, and
the approved project;
w v Ordinance NO. 1423
hr Page 1 of 4
E. That the development and use of the Project at Disposition Package Site
1A-North, and related Irvine Company project at Disposition Package Site
2A, will provide 262 affordable units between the two projects that provide
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significant benefits to the community and promote the public health,
safety, and welfare for the following reasons, among others: (i)
development of the Project will generate tax revenues that can be used to
provide essential services to the community; (ii) development will put the
Project to productive use consistent with the objectives of the City's
General Plan and the MCAS Tustin Specific Plan; and (iii) development of
the Project will ensure the provision of 225 affordable units at the site for a
minimum of 55 years.
F. That DA 2012-002 is consistent with DDA 2012-002. Where conflict may
occur, the more restrictive shall apply.
G. That DA 2012-002 is in conformity with the public necessity, public
convenience, general welfare, and good land use practices in that the
proposed project would implement both the General Plan and the MCAS
Tustin Specific Plan goals and objectives.
H. That DA 2012-002 will not be detrimental to the health, safety, and general
welfare in that the proposed development would comply with all applicable
Federal, State, and Local rules and regulations.
I. That DA 2012-002 will not adversely affect the orderly development of
property in that the proposed development would comply with the MCAS
Tustin Specific Plan district regulations.
J. That on October 9, 2012, the Tustin Planning Commission held a duly
called, and noticed, public hearing on the matter and adopted Resolution
No. 4205 recommending that the Tustin City Council approve Development
Agreement 2012-002.
K. That on October 16, 2012, the Tustin City Council continued, the matter to
an adjourned regular meeting on October 30, 2012.
L. That on October 30, 2012, the Tustin City Council continued the matter to
a regular meeting on November 6, 2012.
M. That a public hearing was duly noticed, called, and held on November 6,
2012 by the Tustin City Council.
Ordinance No. 1423
Page 2 of 4
N. That on November 6, 2012, the Tustin City Council adopted Resolution
No. 12-96 finding that the Project is within the scope of the previously
approved MCAS Tustin Final Program EIS/EIR previously certified on
January 16, 2001, as amended by Supplement and Addendum and that
no new effects could occur and no new mitigation measures would be
required and an additional environmental analysis, action or document is
not required by the CEQA. The City has alternatively determined that the
proposed project is exempt from further CEQA review pursuant to
Government Code Section 65457.
SECTION 2. The City Council hereby approves Development Agreement 2012-002 as
included in Exhibit 1 attached hereto and subject to final approval of the City Attorney
and authorizes execution by the City Manager of the City of Tustin and The Irvine
Company or its affiliate as may be approved by the City of Tustin.
SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this ordinance. The City Council of the City of Tustin hereby
declares that it would have adopted this ordinance and each section, subsection,
sentence, clause, phrase or portion thereof irrespective of the fact that any one or more
sections, subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of
Tustin on this 20th day of November, 2012. r\
JOH"IELSEN,
Mayor
Ordinance No. 1423
Page 3 of 4
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STATE OF CALIFORNIA
COUNTY OF ORANGE ss.
CITY OF TUSTIN
CERTIFICATION FOR ORDINANCE NO. 1423
1, PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of
Tustin, California, does hereby certify that the whole number of the members of the City
Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1423
was duly and regularly introduced and read at the regular meeting of the City Council
held on the 6 th day of November, 2012, and was given its second reading, passed and
adopted at a regular meeting of the City Council held on the 20th day of November,
2012, by the following vote:
Nielsen, Murray, Amante, Gavello, Gomez (5)
None (0)
None (0)
06=2
Ordinance No. 1423
Page 4 of 4
Exhibit 1
Development ! a r • 2012-0G-3
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT BE RECORDED
AND BE EXEMPT FROM PAYMENT OF
A RECORDING FEE PER
GOVERNMENT CODE 6103 AND 27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attn: City Clerk
Space above this line for Recorder's Use Only
TUSTIN LEGACY DEVELOPMENT AGREEMENT
THIS TUSTIN LEGACY DEVELOPMENT AGREEMENT ("Agreement") is
entered into effective as of the day of _, 2012 by and between the CITY OF
TUSTIN, a California municipal corporation ("CITY"), and ANTON LEGACY TUSTIN
L.P.,, a California limited partnership ("DEVELOPER"). CITY and DEVELOPER are
collectively referred to herein as the "Parties" and individually as a "Party".
RECITALS
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of the
State of California adopted the "Development Agreement Statute," Sections 65864, et seq., of
the Government Code. The Development Agreement Statute authorizes CITY to enter into an
agreement with any person having a legal or equitable interest in real property and to provide for
development of such property and to establish certain development rights therein. In addition,
MCAS Tustin Specific Plan Section 4.2.9 states: "prior to issuance of any permits or approval of
any entitlements within the Specific Plan area. all private development shall first obtain a
Development Agreement in accordance with Section 65864 et seq. of the Government Code and
Sections 9600 to 9619 of the Tustin City Code." Pursuant to the authorization set forth in the
Development Agreement Statute, CITY has enacted procedures for entering into development
agreements which are contained in Tustin City Code Sections 9600 to 9619.
B. CITY and DEVELOPER entered into that certain Tustin Legacy Disposition and
Development Agreement as of (the "DDA") pursuant to which CITY agreed to sell, and
DEVELOPER agreed to buy and develop, certain real property, all as more specifically set forth
in the DDA.
C. Pursuant to the DDA, DEVELOPER has an equitable and legal interest in the
Property (as defined below) in that it has the contractual right to purchase from CITY for
development of the Property.
D. Pursuant to Government Code Section 65864, the Legislature has found and
determined that:
"(a) The lack of certainty in the approval of development projects can result in a
waste of resources, escalate the cost of housing and other development to the consumer, and
discourage investment in and commitment to comprehensive planning which would make
maximum efficient utilization of resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval of
the project, the applicant may proceed with the project in accordance with existing policies, rules
and regulations, and subject to conditions of approval, will strengthen the public planning
process, encourage private participation in comprehensive planning, and reduce the economic
costs of development.
(c) The lack of public facilities, including, but not limited to, streets,
sewerage, transportation, drinking water, school, and utility facilities, is a serious impediment to
the development of new housing. Whenever possible, applicants and local governments may
include provisions in agreements whereby applicants are reimbursed over time for financing
public facilities."
ON
MON In accordance with the legislative findings set forth in Government Code Section 65864,
CITY wishes to attain certain public objectives that will be furthered by this Agreement. This
Agreement will provide for the orderly implementation of the General Plan of CITY, and the
phased development and completion of the Project in accordance with the DDA and the Specific
Plan. This Agreement will further a comprehensive planning objective contained within the
City's General Plan, which is:
"To promote an economically balanced community with complimentary and
buffered land uses to include industrial, commercial, professional, multi-family and single-
family development."
E. The DDA, the Specific Plan and the development under the DDA and the Specific
Plan require a substantial early investment of money and planning and design effort by
DEVELOPER. Without the protection provided by this Agreement, uncertainty that the Project
may be completed in its entirety could result in a waste of public resources, escalate the cost of
public improvements, and discourage DEVELOPER's participation in the comprehensive public
improvements in the DDA and the Specific Plan. DEVELOPER's participation in the
implementation of the DDA and the Specific Plan will result in a number of public benefits.
These benefits require the cooperation and participation of CITY and DEVELOPER and could
not be secured without mutual cooperation in and commitment to the comprehensive planning
effort that has resulted in the DDA and the Specific Plan.
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F. DEVELOPER wishes to avoid certain development risks and uncertainties that
would, in the absence of this Agreement, deter and discourage DEVELOPER from making a
commitment to implement the DDA and the Specific Plan. These are as follows:
I . It is generally the law in California that, absent extraordinary
circumstances or the approval of a vesting subdivision map, an owner of the land does not obtain
a vested right to improve land until the issuance of a building pen-nit for the improvements and
commencement of substantial construction pursuant to that pen-nit. The result is a disincentive
for landowners to invest monies in the early completion of major infrastructure and other public
improvements as part of any project or in early comprehensive planning and design studies.
2. Development under the DDA and the Specific Plan requires a substantial
early investment of money and planning and design effort by DEVELOPER. Uncertainty about
CITY's land use policies, rules and regulations could result in a waste of private resources,
escalate the cost of required public improvements, and escalate costs of proposed housing and
other uses.
G. The following assurances are of vital concern to DEVELOPER to offset or
remove the disincentives and uncertainties set forth in Paragraph F above:
1. Assurance to DEVELOPER that, in return for DEVELOPER'S
commitment to the development of the Property that is contained in the DDA, any approved
entitlements, and the Specific Plan, CITY will in turn remain committed to the DDA and the
Specific Plan; 2. Assurances to DEVELOPER that as DEVELOPER becomes obligated for
the costs of designing and constructing the public and private improvements included in the
DDA and the Specific Plan, and makes dedications, DEVELOPER will become entitled to
complete the private development portions of the DDA and the Specific Plan that justify those
obligations; and
3. Assurances to DEVELOPER that in CITY's administration of the DDA
and the Specific Plan, DEVELOPER will be allowed, consistent with the DDA and the Specific
Plan, to develop the housing types and intensities identified in the DDA and the Specific Plan.
These assurances provide for cooperation and participation of CITY and DEVELOPER and
could not be secured without mutual cooperation in and commitment to the comprehensive
planning effort that has resulted in the DDA and the Specific Plan.
H. California Government Code Sections 65864 et seq. authorize local agencies to
enter into binding development agreements with persons having legal or equitable interests in
real property for the development of such property. CITY wishes to enter into a development
agreement with DEVELOPER to secure the public benefits described above, and DEVELOPER
wishes to enter into a development agreement with CITY to avoid the development risks and
uncertainties and to obtain the assurances described above.
I. This Agreement is intended to be, and shall be construed as, a development
agreement within the meaning of the Development Agreement Statute. This Agreement is
intended to augment and further the purposes and intent of the parties in the implementation of
the DDA and the Specific Plan. This Agreement, as a device for the implementation of the DDA
PENN and the Specific Plan, will eliminate uncertainty in planning for and secure the orderly
development of the Project, ensure a desirable and functional community environment, provide
effective and efficient development of public facilities, infrastructure, and services appropriate
for the development of the Project, assure attainment of the maximum effective utilization of
resources within CITY, and provide other significant public benefits to CITY and its residents by
otherwise achieving the goals and purposes of the Development Agreement Statute. In exchange
for these benefits to CITY, DEVELOPER desires to receive the assurance that it may proceed
with development of the Project in accordance with the terms and conditions of this Agreement,
Existing Land Use Regulations, the DDA, and the Development Plan, all as more particularly set
forth herein.
J. CITY has determined that this Agreement and the Project are consistent with the
CITY's General Plan and the CITY's MCAS Tustin Specific Plan/Reuse Plan, as amended, and
as the same maybe further amended from time to time, and that the Development Agreement
complies with the findings established by Tustin City Code Section 9611 in that the Agreement:
(a) Is consistent with the objectives, policies, general land uses and programs
specified in the General Plan and the MCAS Tustin Specific Plan (except for
any Concessions and Incentives authorized for the project by the Tustin City
Council).
K. On October 9, 2012, the Planning Commission held a public hearing on this
Agreement, made certain findings and determinations with respect thereto, and recommended to
the City Council of CITY that this Agreement be approved. On , the City
Council held a public hearing on this Agreement, considered the recommendations of the
Planning Commission, and adopted Ordinance No. , approving this Agreement and
authorizing its execution.
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(b) Is compatible with the uses authorized in district in which the real property is
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located (Planning Area 15). Note: the proposed apartment project complies
with the uses authorized by the MCAS Tustin Specific Plan.
(c) Is in conformity with the public necessity, public convenience, general
welfare, and good land use practices. Note: the proposed provision of 225
affordable apartment units meets this goal.
(d) Will not be detrimental to the health, safety, and general welfare. Note:
compliance with the MCAS Tustin Specific Plan, Tustin City Code, and other
regulations will ensure that the project will not be detrimental in any way.
(e) Will not adversely affect the orderly development of property. Note: the
proposed project is orderly and well designed.
(f) Will have a positive fiscal impact on the City. Note: the provisions of the
proposed DDA, DA and conditions of approval will ensure that the project
will have a positive fiscal impact on the City.
K. On October 9, 2012, the Planning Commission held a public hearing on this
Agreement, made certain findings and determinations with respect thereto, and recommended to
the City Council of CITY that this Agreement be approved. On , the City
Council held a public hearing on this Agreement, considered the recommendations of the
Planning Commission, and adopted Ordinance No. , approving this Agreement and
authorizing its execution.
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AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, which are incorporated
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herein by this reference, and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1. Definitions. The following terms when used in this Agreement shall be defined as
follows:
Any capitalized word or term used in this Agreement shall have the definition or meaning
ascribed to such word or term as provided in the DDA, unless the word or term is expressly
provided in this Section 1.1 of this Agreement, in which event such word or term shall have the
definition or meaning as provided herein. Any word not specifically defined in the DDA or this
Agreement shall be interpreted by the Director of Community Development.
1.1.1 "Agreement" is defined in the introductory paragraph.
1. 1.2 "Applications" is defined in Section 3.11.2 below.
1. 1.3 Reserved
1.1.4 "CITY" is defined in the introductory paragraph.
1.1.5 "DDA" is defined in the Recital B above.
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1. 1.6 "DEVELOPER" is defined in the introductory paragraph.
1.1.7 "Development Permits" means all permits, certificates and approvals
which may be required by CITY or other governmental authority for the development and
construction of the improvements for the Project, in each case in accordance with this
Agreement, the DDA, applicable Land Use Regulations and any required environmental
mitigation, including without limitation any engineering permits, grading permits, foundation
permits, construction permits and building permits.
1.1.8 "Development Plan" means the development (including, without
limitation, the Scope of Development) identified in the DDA, subject to further refinement as
required or contemplated by the DDA consistent with all applicable Entitlement Approvals and
all applicable Land Use Regulations.
1. 1.9 Reserved
1.1.10 "Effective Date" means the date the CITY's ordinance approving this
Agreement becomes effective.
1.1.11 "Entitlement Approvals" means all land use approvals and entitlements,
including all conditions of approvals, legally required by CITY or any other governmental
ENRON. authority as a condition of subdivision of the Property, development of the Property, and
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construction of the improvements in accordance with this Agreement, the DDA and applicable
Land Use Regulations, including, without limitation, Tentative and Final parcel maps, the
Concept Plans and Design Review approvals as may be applicable for proposed specific uses(s)
in connection with development of the Property.
1.1.12 "Existing Entitlement Approvals" means all Development Permits and
Entitlement Approvals approved or issued prior to the Effective Date. Existing Entitlement
Approvals include the Development Permits and Entitlement Approvals which are a matter of
public record on the Effective Date including Development Agreement (DA) 2012-002, Concept
Plan (CP) 2012-003, Design Review (DR) 2012-005, Density Transfer, Density Bonus, and
Concessions or Incentives authorized under Tustin City Code Section 9123 related to the
provision of 225 affordable residential apartment housing units in compliance with California
Government Code Section 65915(1) required for the proposed development of Tustin Legacy
Disposition Package IA-North.
L 1.13 "Existing Land Use Regulations" means all Land Use Regulations in
effect on the Effective Date. Existing Land Use Regulations include CITY's General Plan,
Zoning Code, the Specific Plan, and all other ordinances, resolutions, rules, and regulations of
CITY governing development and use of the Property in effect as of the Effective Date,
including without limitation the permitted uses of the Property, the density and intensity of use,
maximum height and size of proposed buildings, provisions for the reservation and dedication of
land for public purposes, and construction standards and regulations for Development
MEMO Agreement (DA) 2012-002, Concept Plan (CP) 2012-003, Design Review (DR) 2012-005,
NNE Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City
Code Section 9123 related to the provision of 225 affordable residential apartment housing units
in compliance with California Government Code Section 65915(1) required for the proposed
development of Tustin Legacy Disposition Package IA-North.
1.1.14 "Land Use Regulations" means all laws, statutes, ordinances, resolutions,
codes, orders, rules, regulations and official policies of CITY governing the development and use
of land, including, without limitation, the permitted uses of the Property, the density or intensity
of use, subdivision requirements, timing and phasing of development, the maximum height and
size of proposed buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction standards and specifications applicable
to the development of the Property.
1.1.15 "LIFOC" refers to an instrument entitled "Lease in Furtherance of
Conveyance" executed by the United States Department of the Navy and dated May 13, 2002,
delivered to CITY provisionally in lieu of deed for portions of the Property impacted by
hazardous materials, which expires and is supplemented by a conveyance deed upon the United
States Department of the Navy determining that the hazardous materials which impact a portion
of the Property have been adequately remediated.
1. 1. 16 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a
deed of trust or any other security-device lender, and their successors and assigns.
Ell,
1.1.17 Reserved
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1.1.18 "New CITY Laws" is defined in Section 3. 10.1 below.
1.1.19 "Party" is defined in the introductory paragraph.
1. 1.20 "Project" means the development of the Property contemplated by the
Development Plan as such Development Plan may be further defined, enhanced or modified
pursuant to the provisions of this Agreement.
1.1.21 "Property" means the real property described on Exhibit "A" and shown
on Exhibit "B" to this Agreement.
1. 1.22 "Reservations of Authority" means the rights and authority excepted from
the assurances and rights provided to DEVELOPER under this Agreement and reserved to CITY
under Section 3.10 of this Agreement.
1.1.23 "Specific Plan" means the CITY's MCAS Tustin Specific Plan/Reuse
Plan, as amended, and as the same maybe further amended from time to time.
1. 1.24 "Subsequent Entitlement Approvals" means all Entitlement Approvals
required subsequent to the Effective Date in connection with development of the Property. The
Subsequent Entitlement Approvals may include, without limitation, the following: amendments
of the Entitlement Approvals, design review approvals (including site plan, architectural and
landscaping plan approvals), deferred improvement agreements and other agreements relating to
the Project, use permits, grading permits, building permits, lot line adjustments, sewer and water
connections, certificates of occupancy, subdivision maps (including tentative, vesting tentative,
parcel, vesting parcel, and final subdivision maps), preliminary and final development plans, re-
zonings, encroachment permits, re- subdivisions, and any amendments to, or repealing of, any of
the foregoing. At such time as any Subsequent Entitlement Approval applicable to the Project
Site is approved by the City, then such Subsequent Entitlement Approval shall become subject to
all the terms and conditions of this Development Agreement applicable to Entitlement Approvals
and shall be treated as an "Entitlement Approval" under this Development Agreement.
1.1.25 "Successors In Interest" means any person having a legal or equitable
interest in the whole of the Property, or any portion thereof as to which such person wishes to
amend or cancel this Agreement.
1. 1.26 "Vested Right" means the vested rights granted to DEVELOPER pursuant
to this Agreement, including, without limitation, the vested right to develop the Property in
accordance with, and to the extent of the DDA and the provisions of this Agreement. The
Vested Elements shall be effective against, and shall not be amended by, any subsequent
ordinance or regulation, whether adopted or imposed by the City Council or through the
initiative or referendum process. The Vested Elements include are: (1) The General Plan of City
on the Agreement Date, including the General Plan Amendments ( "Applicable General Plan ");
(2) The Zoning Ordinance of City on the Agreement Date ( "Applicable Zoning Ordinance ");
(3) other rules, regulations, ordinances and policies of City applicable to development of the
Project on the Agreement Date (collectively, together with the Applicable General Plan and the
MEMO-
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1-111
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Applicable Zoning Ordinance, the "Applicable Rules"); and (4) the Entitlement Approvals, as
they may be amended from time to time upon DEVELOPER's consent (such consent to be
granted at the sole discretion of DEVELOPER) and City's approval of the amendment in
accordance the terms of this Agreement.
1.2. Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit "A" - Legal Description of the Property.
Exhibit '11311 - Map showing Property and its location.
2. GENERAL PROVISIONS.
2.1. Binding Effect of Agreement. The Property is hereby made subject to this
Agreement. Development of the Property is hereby authorized and shall be carried out only in
accordance with the terms of this Agreement.
2.2. Equitable and Legal Interests in Property. Pursuant to the DDA, DEVELOPER
anticipates acquiring the Property. CITY and DEVELOPER agree that DEVELOPER's right to
acquire the Property pursuant to the DDA creates a sufficient legal and/or equitable interest in
order to enter into this Agreement. If DEVELOPER fails to acquire any portion of the Property,
then this Agreement shall automatically no longer be effective as to such portion of the Property
concurrently with the date upon which DEVELOPER's rights to acquire such portion of the
Property expire.
2.3. Term. The term of this Agreement shall commence on the Effective Date and
shall continue for a term of five (5) years thereafter but in no event for a term less than that
required to obtain the Certificate of Compliance referred to in Section 2.5 of this Agreement,
unless this term is terminated, modified, or "tended by circumstances set forth in this
Agreement or by mutual written consent of the Parties. Notwithstanding the foregoing, the term
of this Agreement shall be automatically extended for the period that development is prevented
or delayed, in whole or in part, due to an event set forth in Section 8.11 below.
2.4. Assignment.
2.4.1 Assignment and Notification. The rights, interests and obligations
conveyed and provided herein to DEVELOPER benefit and are appurtenant to the Property.
DEVELOPER has the right to sell, assign and transfer any and all of its rights and interests and
to delegate any and all of its duties and obligations hereunder; provided, however, that such
rights and interests may not be transferred or assigned except in strict compliance with the
provisions of Section 2.2 of the DDA, and the following conditions:
(a) DEVELOPER secures the written consent of CITY if required
pursuant to Section 2.2 of the DDA;
SIMON (b) Said rights and interests may be transferred or assigned only as an
incident of the transfer or assignment of the portion of the Property to which they relate,
including any transfer or assignment pursuant to a foreclosure of a mortgage or a deed in lieu of [1.1711-1-1-
a foreclosure;
(c) Prior to assignment or transfer, if required pursuant to this Section
2.4 and Section 2.2 of the DDA, DEVELOPER shall notify CITY in writing of such assignment
or transfer, the portions of the Property to which the assignment or transfer will be appurtenant,
and the name and address (for purposes of notices hereunder) of the transferee or assignee,
together with the corresponding number of dwelling units and/or non - residential entitlements
which are proposed to be included within such transfer and DEVELOPER and the assignee or
transferee shall notify CITY whether the assignee or transferee will assume any of
DEVELOPER's obligations under this Agreement and which of DEVELOPER's obligations will
be assumed; and
(d) The assignee or transferee shall have entered into an Assignment
and Assumption Agreement if required by the DDA.
Any attempt to assign or transfer any right or interest in this Agreement except in strict
compliance with this Section 2.4 shall be null and void and of no force and effect.
2.4.2 Subject to Terms of Agreement. Following an assignment or transfer of
any of the rights and interests of DEVELOPER set forth in this Agreement in accordance with
Section 2.4.1, the assignee's exercise, use, and enjoyment of the Property shall be subject to the
terms of this Agreement to the same extent as if the assignee or transferee were DEVELOPER.
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2.4.3 Release of DEVELOPER Upon Transfer. Notwithstanding the
assignment or transfer of portions or all of the Property or rights or interests under this
Agreement, DEVELOPER shall continue to be obligated under this Agreement unless released
or partially released by CITY with respect to DEVELOPER's obligations and the other duties
and obligations of DEVELOPER under this Agreement, pursuant to this paragraph, which
release or partial release shall be provided by CITY upon the full satisfaction by DEVELOPER
of the following conditions:
(a) DEVELOPER is not then in default under this Agreement;
(b) CITY has consented to the assignment or transfer if required under
Section 2.4. 1;
(c) An assignee or transferee has assumed such duties and obligations
as to which DEVELOPER is requesting to be released; and,
(d) The assignee or transferee is financially able to assume the
obligations proposed for assignment and has demonstrated to the reasonable satisfaction of CITY
that adequate resources have been committed to the full performance of such obligations.
2.5. Property to Continue to be Subject to This Agreement. Until recordation of a
Certificate of Compliance as provided in Section 9 of the DDA, the Property shall continue to be
subject to this Agreement. In the absence of specific written agreement by CITY, pursuant to
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which CITY expressly releases the DEVELOPER under the applicable provisions of the DDA or 101
MISS
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this Agreement, no Transfer shall constitute a release of DEVELOPER from any of its
obligations under this Agreement and the DEVELOPER shall retain such obligations and remain
jointly and severally liable for such obligations. CITY shall cooperate with DEVELOPER, at no
cost to CITY, in executing in recordable form any document that CITY has approved to confirm
the termination of this Agreement as to any such Phase or parcel. Notwithstanding the
foregoing, (a) the burdens of this Agreement shall terminate as to any individual residential unit
that is sold or leased after issuance of a certificate of occupancy, and such parcels shall be
released from and shall no longer be subject to this Agreement (without the execution or
recordation of any further document or the taking of any further action) and (b) the benefits of
this Agreement shall continue to run as to any such par6el until Completion or until termination
of this Agreement, if earlier.
2.6. Amendment or Cancellation of Agreement. This Agreement may be amended or
cancelled in whole or in part only in the manner provided for in Government Code Section
65868 and Tustin CITY Code Section 9615. This provision shall not limit any remedy of CITY
or DEVELOPER as provided by this Agreement. Either party or Successor in Interest may
propose an amendment to or cancellation, in whole or in part, of this Agreement. Any
amendment or cancellation shall be by mutual consent of the parties or their Successors in
Interest except as provided otherwise in this Agreement, in Government Code Section 65865. 1,
or in the Tustin City Code. Any amendment to this Agreement which does not relate to the Term
of this Agreement, permitted uses of the Project, provisions for the reservation or dedication of
land the conditions, terms, restrictions and requirements relating to subsequent discretionary
approvals of City, or monetary exactions of DEVELOPER, shall be considered an
"Administrative Amendment". The City Manager or assignee is authorized to execute
Administrative Amendments on behalf of City and no action by the City Council (e.g. noticed
public hearing) shall be required before the parties may enter into an Administrative
Amendment. However, if in the judgment of the City Manager or assignee that a noticed public
hearing on a proposed Administrative Amendment would be required, City's Planning
Commission shall conduct a noticed public hearing to consider whether the Administrative
Amendment should be approved or denied, and shall make a recommendation to the City
Council on the matter. The Tustin City Council shall conduct a noticed public hearing to
consider the request and the Planning Commission's recommendation on the matter. At the
conclusion of the public hearing, the City Council may approve, deny, or conditionally approve
the amendment. The Vested Rights may not be amended except by amendment of this
Agreement; provided, however, that in the case of amendments affecting portions of the Project,
only the consent of the owner of such portion shall be required so long as the amendment does
not diminish the rights appurtenant to or increase the burdens upon any other portion of the
Project Site. Any amendment of City land use regulations including, but not limited to, the
General Plan, applicable Specific Plan or City's zoning ordinance, shall not require amendment
of this Agreement. Instead, any such amendment shall be deemed to be incorporated into this
Agreement at the time that such amendment is approved by the appropriate City decision maker,
so long as such amendment is consistent with this Agreement,
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2.7. Termination. This Agreement shall be deemed terminated and of no further effect ME
upon the occurrence of any of the following events:
IN rr
(a) Expiration of the stated term of this Agreement as set forth in
Section 2.3.
(b) Entry of a final court judgment not subject to further appeal setting
aside, voiding or annulling the adoption of the CITY ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the
CITY ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this
Agreement, the DDA, Entitlement Approvals, and applicable Land Use Regulations, including
issuance of all required occupancy permits and acceptance by CITY or applicable public agency
of all required public improvements and dedications, and CITY issuance of a final DDA
Certificate of Compliance.
(e) Due to a default hereunder, as set forth in Article 5 below.
(1) Upon mutual written agreement of CITY and DEVELOPER.
Termination of this Agreement shall not constitute termination of any other land use
entitlements approved for the Property. Upon the termination of this Agreement, no party shall
have any further right or obligation hereunder except with respect to any obligation to have been isimipsimi
performed prior to such termination or with respect to any default in the performance of the
provisions of this Agreement which has occurred prior to such termination or with respect to any
obligations which are specifically set forth as surviving this Agreement.
2.8. 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
(a) when hand delivered to the other party; (b) three (3) business days after such notice has been
sent by United States mail 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 a national overnight delivery service reasonably approved by the parties
(Federal 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 nextbusiness-day delivery guaranteed, provided that the sending party receives a
confirmation of delivery from the delivery service provider. Unless otherwise provided in
writing, all notices hereunder shall be addressed as follows:
If to CITY: Tustin City Hall
300 Centennial Way
Tustin, CA 92780
Attention: City Manager
and Attention: Director of Community 1917
NO
Development MINIM
IN
With a copy to: City Attorney, City of Tustin
Woodruff Spradlin & Smart
701 S. Parker Street, Suite 8000
Orange, CA 92868 -4760
Attention: David E. Kendig, Esq.
If to DEVELOPER: Anton Legacy Tustin L.P.
c/o Steven L. Eggert
4630 Campus Drive, Suite 111
Newport Beach, CA 92660
With a copy to: St. Anton Partners
c/o Steven L. Eggert
1801 I Street
Sacramento, CA 95811
With a copy to: Cox Castle Nicholson LLP
555 California Street, 10 "' Floor
San Francisco, CA 94104
Attention: Stephen C. Ryan, Esq.
Any party 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.
DEVELOPMENT OF THE PROPERTY.
3.1. Public Benefits. This Agreement provides assurances that the Public Benefits
identified below will be achieved and developed in accordance with the applicable rules and
Entitlement Approvals and with the terms of the DDA, the Specific Plan and this Agreement,
and subject to the City's Reservation of Authority (Section 3.10). The Project will provide local
and regional public benefits to the City, including without limitation: new jobs, housing in
immediate adjacency to employment, affordable housing for persons and families of moderate
incomes.
3.2. DEVELOPER Objectives. In accordance with the legislative findings set forth in
Government Code Section 65864, the DEVELOPER wishes to obtain reasonable assurances that
the Project may be developed in accordance with the applicable rules and project approvals and
with the terms of this Agreement and subject to the City's Reservation of Authority. To the
extent of Project development, and as provided by Section 3.5.2, DEVELOPER anticipates
making capital expenditures or causing capital expenditures to be made in reliance upon the
DDA and this Agreement. In the absence of this Agreement, DEVELOPER would have no
assurance that it can complete the Project for the uses and to the density and intensity of
development set forth in this Agreement and the Existing Entitlement approvals. This
Agreement, therefore, is necessary to assure DEVELOPER that the Project will not be (1)
reduced or otherwise modified in density, intensity or use from what is set forth in the Existing
Entitlement Approvals, (2) subjected to new rules, regulations, ordinances or official policies or
plans which are not adopted or approved pursuant to the City's Reservation of Authority.
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3.3. Mutual Objectives. Development of the Project in accordance with this MEMO
Development Agreement will provide for the orderly development of the Property in accordance �...:
with the objectives set forth in the General Plan_ Moreover, a development agreement for the t
Project will eliminate uncertainty in planning for and securing orderly development of the
Property, assure installation of necessary improvements, assure attainment of maximum efficient
resource utilization within the City at the least economic cost to its citizens and otherwise
achieve the goals and purposes established by Government Code Section 65864. The Parties
believe that such orderly development of the Project will provide Public Benefits, as described in
Section 3. 1, to the City through the imposition of development standards and requirements under
the provisions and conditions of this Agreement, including without limitation: increased tax
revenues, installation of on -site and off -site improvements, and creation and retention of jobs.
Additionally, although development of the Project in accordance with this Agreement will
restrain the City's land use or other relevant police powers, this Agreement provides the City
with sufficient reserved powers during the term hereof to remain responsible and accountable to
its residents. In exchange for these and other benefits to City, the DEVELOPER will receive
assurance that the Project may be developed during the term of this Agreement in accordance
with the applicable rules, project approvals and Reservation of Authority, subject to the terms
and conditions of this Agreement.
3.4. Applicability of the Agreement. This Agreement does not: (1) grant density or
intensity in excess of that otherwise established in the Existing Entitlement Approvals;
(2) eliminate future discretionary actions relating to the Project if applications requiring such
discretionary action are initiated and submitted by the DEVELOPER of the Property after the
effective date of this Agreement; (3) guarantee that Property Owner will receive any profits from
the Project; or (4) amend the DDA, the Specific Plan, or the City's General Plan.
3.5. Agreement _ and Assurance on the Part of the DEVELOPER. In consideration for
the City entering into this Agreement, and as an inducement for the City to obligate itself to carry
out the covenants and conditions set forth in this Agreement, and in order to effectuate the
premises, purposes and intentions set forth in this Agreement, DEVELOPER hereby agrees as
follows:
3.5.1 Project Development. DEVELOPER agrees that it will use commercially
reasonable efforts, in accordance with its own business judgment and taking into account market
conditions and economic considerations, to undertake any development of the Project in
accordance with the terms and conditions of the DDA, this Agreement and Existing Entitlement
Approvals.
3.5.2 Additional Obligations of DEVELOPER as Consideration for this
Agreement. In addition to the obligations identified in Section 3.5.1, the development
assurances provided by this Agreement and the resulting construction of the Project will result in
the following:
a. Construct a 225 -unit residential apartment complex at Disposition Package
Site 1 A -North, Tustin Legacy, including 88 very low income, 73 low
income, and 64 moderate income rental units, consistent with the DDA,
this Agreement and Project approvals. MINE
13
b. Construct all of the vertical, horizontal, and local DEVELOPER
improvements identified in the DDA.
c. Comply with the DDA, Housing/Regulatory Agreement, Tustin City
Code, MCAS Tustin Specific Plan, state and federal law, required
mitigation measures, and all conditions of approval.
d. The DEVELOPER acknowledges that the City has elected to fund certain
portions of the Tustin Legacy Backbone Infrastructure Program through
imposition of a landscape and lighting district, master maintenance
association, assessment district, or any other method or means determined
by the City necessary for funding of the maintenance of the public right -
of -way, landscape easements, public parks or of the various municipal
services and operating expenses associated with Tustin Legacy.
Developer agrees that it will not oppose a determination by the City to
form an assessment district or community facilities district including all or
any portion of the Property subject thereto or any assessments by such
assessment district or community facilities district provided that the City,
the assessment district or community facilities district, and such
assessments comply with Section 8.5.3 of the DDA.
e. Pay all required development related fees, including but not limited to any
required Backbone Infrastructure fee, etc.
f. Focal Park: DEVELOPER shall be responsible for design, construction,
and associated costs of certain Local Improvement (Non- Tustin Legacy
Backbone Program Improvements) to include the following:
1. The full improvement of the 4.7 -acre Focal Park designed to City
public park standards to be located on Lot MMM at the southwest
corner of Legacy Road and Park Avenue. Full improvements
include all water lines, gas, storm drainage, telephone, electricity,
cable TV, sewage and reclaimed water, telemetry and any
necessary telecommunication systems and as shown in the MCAS
Tustin Specific Plan and/or Irvine Ranch Water District Sub Area
Master Plan for Tustin Legacy, and/or as approved by the City and
responsible private utility purveyors. All scope of work for design
and construction includes all surveying, rough and precise grading,
import and export of dirt as required, asphalt paving, including any
necessary overlays, driveways, sidewalks, concrete, curb and
gutter, landscaping, irrigation, street lighting, all traffic control,
striping and signage and other work to construct improvements in
accordance with Tustin City standards.
2. The Focal Park will serve as one of the open space features in
Neighborhood G. As part of the overall tree - planting scheme, the
park shall include similar themed street trees that are matched
14
along the streetscape of Legacy Road and Park Avenue. The focal
park shall be designed to incorporate more unstructured informal
and child play, with other more passive park experiences. The
focal park program as envisioned includes amenities such as:
a. Informal and open Turf area;
b. Shade trees and flowering accent trees;
c. Shrubs;
d. Groundcover;
e. Hardscape, accent and enhanced paving;
f. A minimum of 100 lineal feet of low garden walls with
design to be approved by City (i.e., stucco, brick, split face,
or rock facings);
g. Benches;
h. Trash receptacles;
i. Picnic tables ;
j. Smaller Shade structures;
k. Low level lighting;
1. Small tot lots for two age group;
m. Structure and directional signage;
n. Irrigation;
o. City Park ID Monument;
p. Restroom and storage building; and, separate parking lot
3. The applicant shall design and construct the park and related
�E
M
facilities at no cost to the City. Upon completion of the Park
Facilities to the satisfaction of the City, Developer shall promptly
convey in fee title at no cost to the City, and the City shall accept,
Lot MMM of Tract Map 17404 and facilities, free and clear of all
monetary and non - monetary liens and encumbrances excepting
only those non - monetary liens and encumbrances approved by the
City, together with an ALTA title policy issued by the Title
Company, with policy amount equal to 510,000 or in such other
minimum policy amount that Title Company agrees to issue,
evidencing ownership of the Park Parcel by the City and showing
only those exceptions to title approved by the City. For purposes
of the foregoing, the City shall be deemed to have approved any
non - monetary liens and encumbrances listed in Exhibit B to the
Preliminary Title Report attached to the DDA that are not removed
by the Title Company in the ALTA Policy issued to Developer at
the Close of Escrow. In order to effectuate this provision, until
completion of the Park Facilities, Developer shall not encumber
the Park Parcel with any Mortgage unless such Mortgage and all
instruments recorded against the Park Parcel clearly provide for the
release of the Park Parcel from the lien of such Mortgage promptly
upon request therefor by the City and at no cost or expense to
P-
&I
Developer or the City, in form and substance approved by the City
in its sole discretion.
3.6. Agreement and Assurances on the Part of the City. In consideration for
DEVELOPER entering into this Agreement, and as an inducement for DEVELOPER to obligate
itself to carry out the covenants and conditions set forth in this Agreement, and in order to
effectuate the purpose of this Agreement, the City hereby agrees as follows:
3.6.1 Applicable Regulations; Vested Right to Develop. To the maximum
extent permitted by law, DEVELOPER has the vested right to develop the Project subject to the
terms and conditions of the DDA, this Agreement, the Specific Plan, Tustin City Code, state and
federal law, and Entitlement Approvals pursuant to the City's Reservation of Authority. Other
than as expressly set forth herein, during the Term of this Agreement, the terms and conditions of
development applicable to the Property, including but not limited to the permitted uses of the
Property, the density and intensity of use, maximum height and size of proposed buildings, the
design, improvement and construction standards and specifications applicable to the
development of the Property, including any changes authorized pursuant to Section 3.6.1, and the
provisions for the reservation and dedication of land as needed for public purposes pursuant to
Governmental Requirements, shall be those set forth in the DDA, Existing Land Use
Regulations, and Entitlement Approvals. In connection therewith and subject to the terms of this
Agreement including the Reservations of Authority, DEVELOPER shall have the Vested Rights
to: (1) carry out and develop the Property in accordance with the DDA (which includes the
Development Plan), Existing Land Use Regulations, Entitlement Approvals and the provisions of
this Agreement; (2) to receive from CITY all future entitlement approvals for the Project that
CITY finds are consistent with and implement the DDA (which includes the Development Plan),
Existing Land Use Regulations, Entitlement Approvals and this Agreement, and (3) not have any
Entitlement Approvals conditioned or delayed for reasons inconsistent with the DDA (or as
contemplated in the DDA which includes the Development Plan), Existing Land Use
Regulations, Entitlement Approvals or this Agreement.
To the extent any changes in the Existing Land Use Regulations, or any provisions of future
General Plans, Specific Plans, Zoning Ordinances or other rules, regulations, ordinances or
policies (whether adopted by means of ordinance, initiative, referenda, resolution, policy, order,
moratorium, or other means, adopted by the City Council, Planning Commission, or any other
board, commission, agency, committee, or department of City, or any officer or employee
thereof, or by the electorate) of CITY (collectively, "Future Rules ") are not in conflict with the
Vested Right, such Future Rules shall be applicable to the Project. For purposes of this
Section 3.6.1, the word "conflict" means Future Rules that would (i) alter the Vested Rights, or
(ii) frustrate in a more than insignificant way the intent or purpose of the Vested Rights in
relation to the Project, or (iii) materially increase the cost of performance of, or preclude
compliance with, any provision of the Vested Right, or (iv) delay in a more than insignificant
way development of the Project, or (v) limit or restrict the availability of public utilities, services,
infrastructure of facilities (for example, but not by way of limitation, water rights, water
connection or sewage capacity rights, sewer connections, etc.) to the Project, or (vi) impose
limits or controls in the rate, timing, phasing or sequencing of development of the Project. To
the extent that Future Rules conflict with the Vested Rights, they shall not apply to the Project
and the Vested Rights shall apply to the Project.
m
3.6.2 Availability of Public Services. To the maximum extent permitted by law
and consistent with its authority, City shall assist Developer in reserving such capacity for sewer 1
and water services as may be necessary to serve the Project.
3.7. Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terms of this Agreement including the Reservations of Authority (and notwithstanding
any future action of CITY or its citizens, whether by ordinance, resolution, initiative or
otherwise), the rules, regulations, and official policies governing the Project, including, without
limitation, the permitted uses of the Property, the density and intensity of use of the Property, the
maximum height and size of proposed buildings, the design, improvement and construction
standards and specifications applicable to the Project, including any changes authorized pursuant
to Section 3.6.1, the subdivision of land and requirements for infrastructure and public
improvements, and other terms and conditions of the Project, shall be the DDA, Existing Land
Use Regulations, and the provisions of this Agreement. CITY shall accept for processing and
review and take action on all applications for Subsequent Entitlement Approvals as provided in
Section 3.4 below. In connection with any Subsequent Entitlement Approval, CITY shall
exercise discretion in accordance with the same manner as it exercises its discretion under its
police powers, including the Reservations of Authority; provided however, that such discretion
shall not prevent development of the Project as set forth in this Agreement.
3.8. Timing of Development. The timing of development will be as set forth in the
DDA. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo
(1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of
development resulted in a later adopted initiative restricting the timing of development to prevail
i
over such parties' agreement, it is the parties ' intent to cure that deficiency by acknowledging
and providing that DEVELOPER will adhere to the terms of the DDA regarding the timing of
development.
3.9. Changes and Amendments. By approving the Entitlement Approvals, City has
made a policy decision that the Project is in the best interests of the public health, safety and
general welfare. Accordingly, City shall not use its discretionary authority in considering any
application for a Subsequent Approval, including, but not limited to, the City's administrative
consideration of planned unit development permits, conditional use permits and subdivision
maps, within the Project Site to change the policy decisions reflected by the Entitlement
Approvals or otherwise to prevent or delay development of the Project as set forth in the
Entitlement Approvals. Instead, the Subsequent Approvals shall be deemed to be tools to
implement those final policy decisions and shall be issued by City so long as they comply with
this Agreement and Applicable Law and are not inconsistent with the Entitlement Approvals as
set forth above. The parties acknowledge that refinement and further development of the Project
will require Subsequent Entitlement Approvals and may demonstrate that changes are
appropriate and mutually desirable in the Existing Entitlement Approvals. In the event
DEVELOPER finds that a change in the Existing Entitlement Approvals is necessary or
appropriate, DEVELOPER shall apply for a Subsequent Entitlement Approval to effectuate such
change and CITY shall process and act on such application in accordance with the Existing Land
Use Regulations, except as otherwise provided by this Agreement including the Reservations of
Authority. If approved, any such change in the Existing Entitlement Approvals shall be
incorporated herein by reference as though fully set forth, shall thereafter be deemed to be an
R-
.0 M.
17
0�1111 Existing Entitlement Approval for all purposes of this Agreement and may be further changed
from time to time as provided in this Section. Unless otherwise required by law, as determined
in CITY's reasonable discretion, a change to the Existing Entitlement Approvals requested by
DEVELOPER or an approved assignee shall be deemed "minor" and shall not require an
amendment to this Agreement.
In an instance when CITY has reasonably determined that a proposed change to the Existing
Entitlement Approvals constitutes a minor change pursuant to this Section 3.9, CITY and
DEVELOPER shall cooperate to ensure the preparation of any environmental analysis deemed
appropriate and necessary pursuant to CEQA. Furthermore, CITY and DEVELOPER shall
cooperate to ensure the filing of a notice of determination in this regard.
3.10. Reservations of Authority. Notwithstanding any other provision of this
Agreement to the contrary, the laws, rules, regulations and official policies set forth in this
Section 3.10 shall apply to and govern development of the Property and Project to the extent set
forth herein.
3. 10.1 Consistent Future City Regulations. City ordinances, resolutions, and
official policies, including initiative measures, adopted or approved after the Effective Date
pursuant to procedures provided by law which are applied on a City-wide basis ("New CITY
Laws") shall apply to and govern development of the Property, provided that any New CITY
Laws which reduce the density or intensity of the Project below that permitted by the Existing
- ell I IRA, Land Use Regulations, the Existing Entitlement Approvals or the DDA, alter the permitted uses
of the Property, reduce the maximum height or size of any permitted buildings, impose
additional obligations in connection with the reservation or dedication of land for public
--------------
purposes beyond the requirements identified in the DDA, or limit the rate, timing, or sequencing
of development of the Property from that required in the DDA or in any Entitlement Approvals,
shall be deemed inconsistent with this Agreement and shall not be applicable to the development
of the Property and Project.
3.10.2 Overriding State and Federal Laws. CITY shall not be precluded from
adopting and applying New CITY Laws to the Project and development of the Project to the
extent that such New CITY Laws are required to be applied by State or Federal laws or
regulations and which would override DEVELOPER's Vested Rights as set forth in this
Agreement, provided however, that (i) DEVELOPER does not waive its right to challenge or
contest the validity of such State, Federal, or New CITY Laws or regulation; and (ii) such new
CITY Law shall only be applied to the Project and development of the Project to the extent
necessary to comply with such new State or Federal law or regulation. In the event that such
State or Federal law or regulation (or New CITY Laws undertaken pursuant thereto) prevents or
precludes substantial compliance with one or more provisions of the DDA, the Existing Land
Use Regulations or this Agreement, the Parties agree to consider in good faith amending or
suspending such provisions of this Agreement as may be necessary to comply with such State or
Federal laws (or New CITY Laws), provided that no Party shall be bound to approve any
amendment to this Agreement unless this Agreement is amended in accordance with the
procedures applicable to the adoption of development agreements as set forth in the
Development Agreement Statute and Tustin CITY Code and each Party retains full discretion
with respect thereto.
18
3.10.3 Public Health and Safety. Nothing in this Agreement shall preclude the -z
City Council of the CITY from adopting and applying New CITY Laws which the City Council M
of the CITY finds are reasonably necessary to protect persons on the Property or in the
immediate community, or both, from conditions dangerous to their health or safety
notwithstanding that the applications of such New CITY Laws, or other similar limitation would
result in the impairment of DEVELOPER's Vested Rights under the Agreement or the Existing
Land Use Regulations. In determining whether any such New CITY Laws are reasonably
necessary to protect persons as set forth above, the City Council shall make findings, based on
evidence presented to and accepted by the City Council that the changes are reasonably
necessary to protect the public health or safety. The provisions of this Section 3.10.3 do not
apply to any measure adopted by initiative.
3.10.4 Uniform Construction Codes and Regulations. Policies and rules
governing engineering and construction standards and specifications applicable to public and
private improvements, including all uniform codes adopted by CITY and any local amendments
to those codes adopted by CITY in the future shall apply to the Project and Property.
3.10.5 Police Power. The Parties acknowledge and agree that CITY can not
contractually limit its own police power, its power to address actual or potential threats to public
health or safety, including but not limited to environmental regulations (including without
limitation NPDES) or its emergency authority or powers. The foregoing limitations,
reservations, and exceptions are intended to reserve to CITY all of its powers that cannot be
limited. In all respects not provided for in this Agreement, CITY shall retain full rights to
exercise its police powers to regulate development of the Project and Property. Any uses or
development requiring a concept plan, design review, tentative tract map, conditional use permit,
MINE-
variance,
or other Entitlement Approvals in accordance with Existing Land Use Regulations
shall require a permit or approval pursuant to this Agreement and notwithstanding any other
provision set forth herein, this Agreement is not intended to vest DEVELOPER'S right to
issuance of such permit or approval.
3.11. Processing.
3.11.1 Subdivisions. A subdivision, as defined in Government Code Section
66473.7, shall not be approved unless a tentative map for the subdivision complies with the
provisions of said Section 66473.7. This provision is included in this Agreement to comply with
Section 65867.5 of the Government Code.
3.11.2 Subsequent Entitlement Approvals. By approving the Entitlement
Approvals, City has made a final policy decision that the Project is in the best interests of the
public health, safety and general welfare. Accordingly, City shall not use its discretionary
authority in considering any application for a Subsequent Entitlement Approval, including, but
not limited to, the City's administrative consideration of planned unit development permits,
conditional use permits and subdivision maps, within the Project Site to change the policy
decisions reflected by the Entitlement Approvals or otherwise to prevent or delay development
of the Project as set forth in the Entitlement Approvals. Instead, the Subsequent Entitlement
Approvals shall be deemed to be tools to implement those final policy decisions and shall be
issued by City so long as they comply with this Agreement and Applicable Law and are not
19
inconsistent with the Entitlement Approvals as set forth above. CITY shall employ all lawful
MINE actions capable of being undertaken by CITY to promptly (i) accept all complete applications for
w Subsequent Entitlement Approvals (collectively, "Applications ") and (ii) process and take action
upon Applications in accordance with applicable law with a goal of completing the review within
time frames identified in the DDA; provided however, that CITY shall not be deemed in default
under this Agreement should such time frame(s) not be met. To the extent that DEVELOPER
desires that CITY plan check or process an Application on an expedited basis and to the extent
that it requires an additional expense beyond the customary expense applicable to the general
public, CITY shall inform DEVELOPER of such additional expense, including the cost of
overtime and private consultants and other third - parties. If acceptable to DEVELOPER,
DEVELOPER shall pay the additional cost and CITY shall use best efforts to undertake the most
accelerated processing time as lawfully possible utilizing overtime and the services of private
consultants and third parties to the extent available. Upon the written request of DEVELOPER,
CITY shall inform DEVELOPER of the necessary application requirements for any requested
CITY approval or requirement relating to the Project. CITY may deny an application for a
Subsequent Entitlement Approval only if such application does not comply with the DDA, this
Agreement or Existing Land Use Regulations or is materially inconsistent with the Existing
Entitlement Approvals.
3.11.3 Filings. DEVELOPER shall exercise reasonable efforts to file
applications for permits and Entitlement Approvals within the time frames and schedules as
generally outlined in the DDA and shall exercise reasonable efforts to attempt to obtain permits
and Entitlement Approvals within the time frames identified in the DDA; provided, however,
HERE that failure solely to comply with such time frame(s) shall not be deemed to be a default under
this Agreement.
3.l 1.4 Cooperation. CITY and DEVELOPER shall cooperate in processing all
applications for permits and approvals for the Project, provided, however, that such cooperation
shall not include any obligation of CITY to incur any un- reimbursed expense, and CITY shall be
entitled, subject to the terms of this Agreement, the DDA and DEVELOPER's rights hereunder,
to exercise all discretion to which it is entitled by taw in processing and issuing any permits and
approvals for the Project.
3.11.5 Approvals. Notwithstanding any administrative or judicial proceedings,
initiative or referendum concerning any of the Entitlement Approvals, CITY shall process
applications for permits and approvals as provided herein to the fullest extent allowed by law and
DEVELOPER may proceed with development of the Project pursuant to the DDA, Existing
Land Use Regulations, and Entitlement Approvals to the fullest extent allowed by law.
3.12. Infrastructure and Public Facilities. Construction of infrastructure and public
facilities will be as set forth in the DDA.
3.13. Dedications. DEVELOPER acknowledges and agrees that it is required (and will
be required) to dedicate to CITY and other public agencies on the approved parcel map, or in
conjunction with Entitlement Approvals, certain required dedications as required by the DDA,
and Existing Land Use Regulations, or by DEVELOPER pursuant to the FINAL EISJEIR for the
MCAS Tustin Project, as amended by either supplemental documentation or addendum and as
W
required by DEVELOPER pursuant to DEVELOPER'S assumption of CITY MCAS Tustin
obligations under the "Agreement Between the City of Irvine and the City of Tustin Regarding
the Implementation, Timing, Funding of Transportation/Circulation Mitigation for the MCAS
Tustin Project" and the "Amendment to the Joint Exercise of Powers Agreement Between the
City of Santa Ana and the City of Tustin Regarding the Tustin -Santa Ana Transportation
Improvement Authority ".
3.14. Regulation by Other Public Agencies. ncies. It is acknowledged by the parties that other
public agencies not within the control of CITY possess authority to regulate aspects of the
Project and development of the Property separately from or jointly with CITY and this
Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate
fully, at no out of pocket cost to CITY, with DEVELOPER in obtaining any required permits or
compliance with the regulations of other public agencies provided such cooperation is not in
conflict with any laws, regulations or policies of CITY.
3.15. Tentative Tract Map Extension. The tentative parcel map, heretofore or hereafter
approved in connection with development of the Property, shall be eligible for extensions of time
as provided in Government Code Section 66452.6, except that any extension shall be consistent
with any applicable performance schedule as provided or established in the DDA and shall not
be deemed or considered in any way an extension of any DEVELOPER obligations under the
DDA.
4. ANNUAL REVIEW. Timing and Annual Review. The Tustin City Council shall review
DEVELOPER's performance under this Agreement at least every twelve (12) months from the
Effective Date until expiration of the Agreement. In connection with such review, both the mi
CITY and DEVELOPER shall have a reasonable opportunity to assert matters which either
believes have not been undertaken in accordance with this Agreement, to explain the basis for
such assertion, and to receive from the other party a justification of its position on such matters.
4.1. Review Procedure. CITY shall provide notice to DEVELOPER and deliver to
DEVELOPER or it successor in interest a copy of all public staff reports, documents and related
exhibits concerning CITY's review of DEVELOPER's performance hereunder at least 30 days
prior to any date proposed for City Council review of performance under the Agreement.
4. 1.1 DEVELOPER or its Successor in Interest shalt demonstrate good faith
compliance with the terms of this Agreement and shall furnish evidence of good faith
compliance, as CITY, in its reasonable exercise of its discretion, may require. Evidence of good
faith compliance may include the following:
(a) conformance with the DDA and its scope of development and
schedule of performance;
(b) conformance with the requirements of the Specific Plan; and
(c) conformance with provisions of this Agreement identified by the
21
ON
4.1.2 DEVELOPER or its successor in interest shall have the opportunity to
respond to CITY's evaluation of DEVELOPER's performance, either orally or in a written
statement, at DEVELOPER's election.
4.1.3 The City Council may refer the matter to the Planning Commission for
further proceedings or for a report and recommendation.
4.2. Notice of Non-Compliance. If on the basis of the annual review, the CITY
determines, based upon substantial evidence, or at any other time during the term of this
Agreement, either Party concludes that the other party has not complied in good faith with the
terms of this Agreement, then such Party may issue a written "Notice of Non - Compliance"
specifying the grounds therefore and all facts demonstrating such non - compliance. The Party
receiving a Notice of Non - Compliance shall have forty -five (45) days to respond in writing to
said notice by specifying either how its non - compliance has been cured (or is diligently being
cured) or the grounds upon which it believes that it is complying with this Agreement. The time
frame to respond to a Notice of Non - Compliance may be extended by mutual agreement of the
Parties. If the response to the Notice of Non - Compliance has not been received in the offices of
the Party alleging non - compliance within the prescribed forty -five (45) days, or within such
other period of time as mutually agreed, the Notice of Non - Compliance shall be conclusively
presumed to be valid, and if the non - complying Party is DEVELOPER, the CITY may
commence proceedings on termination or modification of the Agreement pursuant to the Tustin
City Code and Section 4.3 of this Agreement. If the party receiving a Notice of Non - Compliance
responds within the time period provided above, the parties agree to meet in good faith at
reasonable times and from time to time for a period of at least sixty (60) days to arrive at a
mutually acceptable resolution of the matters) asserted in the Notice of Non - Compliance and
disputed in the response. If after sixty (60) days, or any extension of time as mutually agreed to
by the Parties, the Parties have failed to arrive at a mutually acceptable resolution of such
matter(s), either Party may pursue any remedy at law or in equity, and the CITY may commence
proceedings on termination or modification of this Agreement pursuant to Sections 9617 and
9618 of the Tustin City Code and Section 4.3 of this Agreement.
4.3. Modification or Termination. If the City Council determines to proceed with
modification or termination of this Agreement after following the procedure for a Notice of Non -
Compliance under Section 4.2 of this Agreement, the City Council shall give notice to
DEVELOPER or successor in interest thereto of its intention to do so. The Notice shall contain
all information required by Tustin City Code Section 9618. At the time and place set for the
hearing on modification or termination, the City Council may refer the matter back to the
Planning Commission for further proceedings or for a report and recommendation. The City
Council may take such action as it deems necessary to protect the interests of the CITY,
including but not limited to, the receipt of additional evidence as to DEVELOPER'S compliance
with the terms of this Agreement. The decision of the City Council shall be final, subject only to
judicial review pursuant to California Code of Civil Procedure Section 1094.5(b).
4.4. Certificate of Agreement Compliance. If, at the conclusion of a periodic review,
DEVELOPER is found to be in compliance with this Agreement, CITY shall, upon request of
the DEVELOPER, issue a Certificate of Compliance (the "Certificate ") to DEVELOPER stating
that after the most recent periodic review and based upon the information known or made known
W
to the City Council that: (1) this Agreement remains in effect, and (2) DEVELOPER is not in
x
default. The Certificate shall be in recordable form, shall contain information necessary to
communicate constructive record notice of the finding of compliance, and shall state the
anticipated date of commencement of the next periodic review. DEVELOPER may record the
Certificate with the County Recorder.
5. DEFAULT REMEDIES AND TERMINATION.
5.1. Default Procedure. In addition to procedures identified in Section 4.2 and/or 4.3
of this Agreement, a non - defaulting party (the "Non- Defaulting Party") at its discretion may
elect to declare a default under this Agreement in accordance with the procedures hereinafter set
forth for any failure or breach of any other Party ( "Defaulting Party ") to perform any material
duty or obligation of said Defaulting Party in accordance with the terms of this Agreement and
provided the Notice of Non - Compliance procedures in Section 4.2 have first been exhausted.
However, the Non - Defaulting Party must provide written notice to the Defaulting Party setting
forth the nature of the breach or failure and the actions, if any, required by the Defaulting Party
to cure such breach or failure. The Defaulting Party shall be deemed to be in "default" of its
obligations set forth in this Agreement if the Defaulting Party has failed to take action and cure
the default within ten (10) days after the date of such notice (for monetary defaults) or within
thirty (30) days after the date of such notice (for non - monetary defaults). If, however, a non -
monetary default cannot be cured within such thirty (30) day period, as long as the Defaulting
Party does each of the following:
(a) notices the Non - Defaulting Party in writing with a reasonable
explanation as to the reasons the asserted default is not curable within the thirty (30) day period;
(b) notifies the Non - Defaulting Party in writing of the Defaulting
Party's proposed course of action to cure the default;
(c) promptly commences to cure the default within the thirty (30) day
period;
(d) makes periodic written reports to the Non - Defaulting Party as to
the progress of the program of cure, and:
(e) diligently prosecutes such cure to completion,
then the Non - Defaulting Party shall grant in writing the Defaulting Party such additional time as
determined by the Non - Defaulting Party as reasonably necessary to cure such default.
5.2. Default Remedies. After complying with Section 5. 1, in the event of an uncured
default, the Non - Defaulting Party, at its option, may institute legal action to cure, correct or
remedy such default, enjoining any threatened or attempted violation, enforce the terms of this
Agreement by specific performance, or pursue any other legal or equitable remedy.
Furthermore, CITY, in addition to or as an alternative to exercising the remedies in this Section
5.2, in the event of a material default by DEVELOPER, may give notice of its intent to terminate
or modify this Agreement pursuant to Section 43, in which event the matter shall be scheduled ffis
for consideration and review by the City Council in the manner set forth in Tustin City Code
23
Section 9618. The decision of the City Council shall be final, subject only to judicial review
pursuant to California Code of Civil Procedure Section 1094.5(b).
5.3. DEVELOPER'S Remedies. In the event that the CITY is in material default
under this Agreement, the DEVELOPER shall be entitled to any or all of the following remedies:
(1) Seeking mandamus or special writs, injunctive relief, or specific performance of this
Agreement; (2) Modifications or termination of this Agreement; or (3) Seeking any other remedy
available at law or in equity, provided, however, except as provided in Section 8.10 below, the
DEVELOPER agrees and covenants on behalf of itself and it successors and assigns, not to sue
CITY for damages or monetary relief for any breach of this Agreement or arising out of or
connected with any dispute, controversy or issue regarding the application or effect of this
Agreement, or for consequential damages arising out of or connected with any dispute,
controversy, or issues regarding the application or effect of the Existing Land Use Regulations,
or any Development Permits or Entitlement Approvals sought in connection with development or
use of the Property or Project, or any portion thereof. DEVELOPER acknowledges that the
CITY would not have entered into this Agreement if the CITY could be held liable for general,
special or compensatory damages for any default or breach arising out of this Agreement and
that DEVELOPER has adequate remedies other than general, special or compensatory damages,
to secure the CITY's compliance with its obligations under this Agreement. Therefore,
DEVELOPER agrees that the CITY, its officers, employees and agents shall not be liable for any
general, special or compensatory damages and that this section shall apply to any successor,
assignee or transferee of the DEVELOPER.
BONN 5.4. Third Party Legal Challenges. In the event of any legal action instituted by a third
party challenging the validity or enforceability of any provision of this Agreement, the Existing
Land Use Regulations, the DDA (including without limitation the Development Plan), or
Entitlement Approvals for the Project ( "Third Party Challenge "), DEVELOPER shall have the
right but not the obligation to defend any Third Party Challenge, at its expense. DEVELOPER,
in defending any Third Party Challenge shall further have the right to settle such Third Party
Challenge, provided that nothing herein shall authorize DEVELOPER to settle such Third Party
Challenge on terms that would constitute an amendment or modification of this Agreement, the
Existing Regulations, or Development Plan unless such amendment or modification is approved
by the CITY in accordance with applicable legal requirements, and CITY reserves its full
legislative discretion with respect thereto. CITY shall not incur any costs or take any actions to
defend such Third Party Challenge without DEVELOPER's approval. DEVELOPER shall also
indemnify and hold harmless the CITY and its agents, officials and employees from and against
all claims, losses, or liabilities assessed or awarded against the CITY by way of judgment,
settlement, or stipulation.
6. INDEMNITY BY DEVELOPER. DEVELOPER agrees to indemnify, defend, and hold
harmless CITY, CITY's designees, and their respective elected and appointed officials, boards,
commissions, agents, contractors, and employees from and against any and all actions, suits,
claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited
to attorney's fees and costs) which may arise, directly or indirectly, from the acts, omissions, or
operations of DEVELOPER or DEVELOPER's agents, contractors, subcontractors, agents, or
employees pursuant to this Agreement, but excluding any loss resulting from the intentional or
active negligence of the CITY, CITY's designee, or each of their respective elected and
PIS
appointed officials, boards, commissions, officers, agents, contractors, and employees.
DEVELOPER shall select and retain counsel reasonably acceptable to the CITY to defend any
action or actions and DEVELOPER shall pay the cost thereof The indemnity provisions set
forth in this Agreement shall survive termination of the Agreement.
7. MORTGAGEE PROTECTION. The parties hereto agree that this Agreement shall not
prevent or limit DEVELOPER, in any manner, from encumbering the Property or any portion
thereof or any improvement thereon by any mortgage, deed of trust or other security device
securing financing with respect to the Property, subject to any terms or provisions of the DDA to
the extent relating to the encumbrance of the Property by any mortgage, deed of trust or other
security device. Any Mortgagee of the Property shall be entitled to the following rights and
privileges:
(a) This Agreement shall be superior to the lien of any mortgage.
Notwithstanding the foregoing, neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless otherwise required by law, and any acquisition
or acceptance of title or any right or interest in or with respect to the Property or any portion
thereof by a mortgagee (whether pursuant to foreclosure, trustee's sale, deed in lieu of
foreclosure, lease termination or otherwise) shall be subject to the terms and conditions of this
Agreement and any such mortgagee who takes title to the Property or any portion thereof shall be
entitled to benefits arising under this Agreement.
(b) Each Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, shall upon written request in writing to CITY, be entitled to receive
written notice from CITY of results of the Annual Review and of any default by DEVELOPER
in the performance of DEVELOPER's obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a
copy of any notice of default given to DEVELOPER under the terms of this Agreement, CITY
shall provide a copy of that notice to the Mortgagee concurrently with delivery of the notice of
default to DEVELOPER. The Mortgagee shall have the right, but not the obligation, to cure the
default during the remaining cure period allowed such party under this Agreement (including any
extended cure period necessary in order to allow the Mortgagee to obtain title to the Property and
cure the default).
(d) Any Mortgagee who comes into possession of the Property, or any
part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have
an obligation or duty under this Agreement to perform any of DEVELOPER's obligations or
other affirmative covenants of DEVELOPER hereunder, or to guarantee such performance;
except that (i) the Mortgagee shall have no right to develop the Property without fully complying
with the terms of this Agreement, the DDA, Existing Land Use Regulations and Entitlement
Approvals and (ii) to the extent that any covenant to be performed by DEVELOPER is a
condition precedent to the performance of a covenant by CITY, the performance thereof shall
continue to be a condition precedent to CITY's performance hereunder.
25
Notwithstanding anything to the contrary contained above in this Section, any Mortgagee
shall be subject to all of the terms of the DDA, to the extent applicable pursuant to the DDA to
such Mortgagee. CITY's terms are subject to lender review.
MISCELLANEOUS PROVISIONS.
8.1. Recordation of Agreement. This Agreement and any amendment or cancellation
thereof shall be recorded with the Orange County Recorder by the City Clerk within ten (10)
days after CITY executes this Agreement, as required by Section 65868.5 of the Government
Code. If the parties to this Agreement or their Successors in Interest amend or cancel this
Agreement as provided for herein and in Government Code Section 65868, or if CITY
terminates or modifies this Agreement as provided for herein and in Government Code Section
65865.1 for failure of DEVELOPER to comply in good faith with the terms or conditions of this
Agreement, the City Clerk shall have notice of such action recorded with the Orange County
Recorder. ,
8.2. Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties with respect to the matters set forth herein, and there
are no oral or written representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony or evidence of
any such representations, understandings or covenants shall be admissible in any proceeding of
any kind or nature to interpret or determine the terms or conditions of this Agreement.
8.3. Severabilit . If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not rendered impractical to perform
taking into consideration the purposes of this Agreement.
8.4. Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the internal laws of the State of
California without reference to choice of law or conflicts of law provisions. This Agreement
shall be construed as a whole according to its fair language and common meaning to achieve the
objectives and purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed in interpreting this
Agreement, all parties having been represented by counsel in the negotiation and preparation
hereof. The decision of the City Council shall be final, subject only to judicial review pursuant
to California Code of Civil Procedure Section 1094.5(b).
8.5. Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
8.6. Singular and Plural. As used herein, the singular of any word includes the plural.
8.7. Time of Essence. Subject to the following sentence, time is of the essence in the
performance of each provision of this Agreement. Whenever action must be taken (including the
giving of notice or the delivery of documents) under this Agreement during a certain period of
time or by a particular date that ends or occurs on a non-business day, then such period or date
ow
shall be extended until the immediately following business day. As used herein, "business day"
means any day other than Saturday, Sunday or a federal or California state holiday.
8.8. Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
8.9. No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
8.10. Attorneys Fees. If legal action is commenced to enforce or to declare the effect of
any provision of this Agreement, the prevailing party shall be entitled to recover from the non-
prevailing party actual and reasonable attorneys' fees and other litigation costs. In addition to
the foregoing award of attorneys' fees and other litigation costs to the prevailing party, the
prevailing party in any lawsuit or reference proceeding on this Agreement shall be entitled to its
attorneys' fees and other litigation costs incurred in any post judgment proceedings to collect or
enforce the judgment. This provision is separate and several and shall survive the merger of this
Agreement into any judgment on this Agreement. This provision shall survive termination of
this Agreement.
8.11. Force Majeure.
8.11.1 Time periods for performance of any obligations under this Agreement
}
may be extended for Force Majeure, except that in no event, shall the Term of this Agreement be
extended by an event of Force Majeure Delay.
8.11.2 In the event of a lawsuit, referendum, or initiative which constitutes a
Force Majeure Delay and which directly affects the ability of the claiming Party to meet its non-
monetary obligations under this Agreement, including the deadlines imposed by the DDA
Schedule of Performance or the ability of the DEVELOPER to Complete the Project for a period
of more than two years, the Parties shall meet and confer on mutually acceptable ways or
modifications to the Project to proceed with development thereof notwithstanding such lawsuit,
referendum or initiative. In the event that the Parties are unable to agree, the question of whether
the extension of such period of Force Majeure Delay beyond two years is reasonable under the
circumstances will be presented to the City Council (with reasonable notice to and an
opportunity to be heard by the DEVELOPER.). The City Council may then decide based on its
good faith deliberations to either permit the extension of such period of Force Majeure Delay or
proceed with its remedies under this Agreement. The decision of the City Council shall be final,
subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b).
8.11.3 If any Party (the "First Party ") believes that an extension of time is due to
Force Majeure Delay, it shall notify the other Party (the "Second Party ") in writing within thirty
(30) calendar days from the date upon which the First Party becomes aware of such Force
Majeure Delay, describing the Force Majeure Delay, when and how the First Party obtained
knowledge thereof, the date the event commenced, the steps the First Party anticipates taking to
MINE
FIN
respond to such Force Majeure Delay, and the estimated delay resulting from such Force
sE Majeure Delay and response. The extension for Force Majeure Delay shall be granted or denied
in the Second Party's reasonable discretion. If the First Party fails to notify the Second Party in
writing of its request for a given Force Majeure Delay within the thirty (30) calendar days
specified above, there shall be no extension for such Force Majeure Delay.
8.12. Successors in Interest. The burdens of this Agreement shall be binding upon, and
the benefits of this Agreement shall inure to, all Successors in Interest to the parties to this
Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land. Each covenant to do or refrain from doing some act
hereunder with regard to development of the Property: (a) is for the benefit of and is a burden
upon every portion of the Property; (b) runs with the Property and each portion thereof; and,
(c) is binding upon each party and each successor in interest during ownership of the Property or
any portion thereof.
8.13. Counterparts. This Agreement may be executed by the parties in counterparts,
which counterparts shall be construed together and have the same affect as if all of the parties
had executed the same instrument.
8.14. Jurisdiction and Venue. Subject to the provisions of Section 5.3 above, any action
at law or in equity arising under this Agreement or brought by a party hereto for the purpose of
enforcing, construing or determining the validity of any provision of this Agreement shall be
flied and tried in the Superior Court of the County of Orange, State of California, or the United
States District Court for the Central District of California, Santa Ana Division, and the parties
hereto waive all provisions of law providing for the filing, removal or change of venue to any
other court.
8.15. Project as a Private Undertaking. It is specifically understood and agreed by and
between the parties hereto that the development of the Project is a private development, that
neither party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and DEVELOPER is that of a government
entity regulating the development of private property and DEVELOPER of such property.
8.16. Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement.
8.17. Estoppel Certificate. Any party hereunder, may at any time, deliver a written
notice to the other party requesting such Party to certify in writing that, to the best knowledge of
the certifying party: (i) this Agreement is in full force and effect and a binding obligation of the
28
party; (ii) this Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the date and nature of the amendments to this Agreement, but it remains in
IN-
full force and effect as modified, and a continuing binding obligation of the party; and (iii) the
requesting party is not in default in performance of their obligations set forth in the Agreement,
or if the party is in default, provide a description thereof of the nature of such default(s). A party
receiving a request hereunder shall execute and return such certificate within thirty (30) days
following receipt thereof. Any third party, including a mortgagee shall be entitled to rely on the
certificate. DEVELOPER shall pay to CITY all costs incurred by CITY in connection with the
issuance of estoppel certificates.
8.18. Authority to Execute. The person or persons executing this Agreement on behalf
of each party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of such party and warrants and represents that he or she/they has/have the
authority to bind such party to the performance of its obligations hereunder.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
110
ME NO
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EN
0
29
EXHIBIT "A"
TO DEVELOPMENT AGREEMENT
Legal Description of Property
< Same Legal as applied to DDA should be attached since obligations go beyond Developer
property but to Project>>
[to be inserted/attached]
Exhibit A
1A North Property Legal Description and Site Map
Lots 20, MMM, NNN. and PPP of Tract No. 17404 in the City of Tustin, County of Orange.
State of California as shown on a map filed in Book 884, Pages I to 14, Official Records of
Orange County, California.
LOT R LOT III
LOT 0
4or
to, Pono
OCC6
19
24
Lar MMM
20
0 -LOT PPP
11-
IN THE CITY OF TUSTIN, COUNTY OF ORANGE
STATE OF CALIFORNIA
I"°
11-
NO
EXHIBIT "B"
TO DEVELOPMENT AGREEMENT
Map showing Property and its location
[to be inserted/attached]
Exhibit B
xk
hll/
BARRANCA PARKWAY
PREPARED BY zi
FUSCOE f T
I
U,( .— 926"
W 949 474 1960 • f- 949 474 5315
PREPARED FOR
0 IRVINE COMPANy I CAPARTMENT ITIES LOCATION MAP
. OMMUN
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sp