HomeMy WebLinkAboutORD 1473 (2016)ORDINANCE NO, 1473
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, APPROVING DEVELOPMENT AGREEMENT (DA)
2016-002 BETWEEN THE CITY OF TUSTIN AND INTRACORP
SO CAL -1, LLC TO FACILITATE THE DEVELOPMENT OF ONE -
HUNDRED FORTY (140) RESIDENTIAL CONDOMINIUM UNITS
ON AN APPROXIMATE 6.81 ACRE SITE LOCATED AT 320-438
W. SIXTH STREET AND 6201-694 S. B STREET.
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. That proper application has been submitted by Intracorp So Cal -1 for the
development of one -hundred forty (140) residential condominium units with
common and private open, space on an approximate 6.81 acre site and to
provide for public benefits.
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B. That Section 65-864 et seq. of the Government Code and Sections 9600 to
9619, of the Tustin City Code authorize the Tustin City Council to enter into a
Development Agreement. In compliance with Tustin City Code Section 9611,
the Tustin Planning Commission must make a recommendation, on, the
L11, proposed' Development Agreement to the City Council.
C. That a public hearing was duly called, noticed, and held on said
application on September 27, 2016, by the Planning Commission, The
Planning Commission adopted Resolution No. 4327 recommending that
the City Council approve the Development Agreement.
D. That City prepared, an Initial Study to evaluate the potential environmental
impacts associated with the project that concluded, with mitigation
measures, potential significant impacts can be reduced to a level of
insignificance and a draft Mitigated Negative Declaration (MND) was
prepared;
E. That a public hearing was duly called, noticed, and held on said
application on October 18, 2016, by the City Council. At the request of the
applicant, the City Council continued the public hearing to November 15,
2016.
F. That the City Council has considered the Initial Study/MND and the
MMRP (Resolution No. 16-55) and comments received during the public
review process and recommended the City Council find the Initial
Study/MND adequate for the project.
Ordinance No. 1473
Page 1 of 4
G. That the Development Agreement is supported by the following findings:
That the Development Agreement is consistent with GPA 2016-01 and
ZC 2016-001, the project will be consistent with the objectives, policies,
general land uses and programs specified in the General Plan in that
residential uses are permitted uses within the Planned Community
Residential (PC- Residential) land use designation, and the Planned
Community (PC) zoning district.
2. The project is compatible with the uses in, the district in which the real
property is located in that similar and compatible residential ential uses exist in
close proximity to the project site.
3. That the project is compatible with the uses authorizedi in the district in
which, the property is located,
4. That the project is located adjacent to the Cultural Resources District
and within walking distance of Old Town Tustin and will generate and
contribute to the support of commercial activity in Old Town Tustin.
5. That the project is in conformity with the public necessity, public
convenience, general welfare and: good land use practices in that the
project would provide 140 new housing units for new and existing Tustin
residents thereby providing additional options of housing types to the
City's house stock.
6. The project willi not be detrimental to the health, safety and general;
welfare. The project will comply with the TCC, mitigation measures and
conditions of approval and other regulations to ensure that the project
will not be detrimental to the community.
7. The project will not adversely affect the orderly development of property
in that the proposed project is orderly, well designed and equipped with
the necessary infrastructure and amenities to support existing, and future
residents and businesses in the City.
8. That the State Housing Element mandates that local governments
adequately plan for housing needs of all economic segments of the
community and Goal 1 of the Tustin General Plan Housing Element
supports state housing law. The project is a market -rate for sale
housing development and would not be affordable housing under the
,state law.
Ordinance No. 1473
Page 2 of 4
9. In furtherance of Goal 1 of the Tustin General Plan Housing Element,
the applicant will pay an in -lieu affordable housing fee which will be used
for development of affordable housing at another location within the
City.
10. That the provision to require the removal of the cell site prior to
completion of the project would ensure the project compliance with the
Tustin City Code and would not create anon -conforming condition at
the project site.
11. That the approval of the DA will provide for an orderly development and
provide public benefits.
12. A Fiscal Impact Analysis was prepared and submitted along with the DA
which verifies that the project will have a positive fiscal impact on the
City over and above that of the current industrial uses.
SECTION 2. The City Council hereby approves Development Agreement 2016-002
attached hereto as Exhibit A and subject to finial approval of the City
Attorney:
SECTION 3: The City Manager is hereby authorized to take such actions, and execute
such documents and instruments as deemed necessary or desirable to
implement the terms of the DA and other documents as necessary.
SECTION 4. Severability. It 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 valiidity 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 b Cit Council for the City of
1h
Tustin on this 6 day of December, 2016.,
ILEER
Ordinance No. 1473
Page 3 of 4
I " I L;IX, 1117
ERICA N. RABE,
City Clerk
r -111I. -I I a MOM C 1 W-11-011111 � w �
DAVID, E. KENDIG
City Attorney
STATE OF CALIFORNIA
COUNTY OF ORANGE ss.
CITY OF TUSTIN
1, Erica N. Rabe, City Clerk and ex -officio Clerk of the City Council of the City of Tustin,,
California, do hereby certify that the whole number of the members of the City Council
of the City of Tustin is 5; that the above and foregoing Ordinance No. 1473 was duly
and regularly introduced at a regular meeting of the Tustin City Council, held on, the, 15th
day of November, 2016 and was given its second reading, passed, and adopted at a
regular meeting of the City Council held on the 6th day of December, 2016 by the
following vote:
COUNCILMEMBER AYES: Mi r,1 czi=%n, Rprngte i n, Murra y, Pucket t (A
COUN'CILMEMBER NOES: Gomez (1 1
COUNCILIMEMBER ABSTAINED:
COUNCILMEMIBER ASSENT:
'L�MIIL'
ERICA N. RAS,
City Clerk
Ordinance No. 1473
Page 4 of 4
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Tustin
300 Centennial Way
Tustin,CA 92780
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Tustin and is exempt from
the payment of a recording fee pursuant to
Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
(2016-002)
between
CITY OF TUSTIN
and
INTRACORP SOCAL-1, LLC,
a California limited liability company
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TABLE OF CONTENTS
Page
1. Definitions. ..........................................................................................................................3
2. General Provisions...............................................................................................................7
2.1 Binding Effect of Agreement; Authorized Use of Property....................................7
2.2 Developer Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement...................................7
2.3 Term.........................................................................................................................7
3. Development of Project.......................................................................................................8
3.1 Development Regulations; Developer's Vested Rights and City's
Reservation of Discretion With Respect to Subsequent Development
Approvals.................................................................................................................8
3.2 Other Governmental or Quasi-Governmental Permits............................................9
3.3 No Conflicting Enactments......................................................................................9
3.4 Reservations of Authority......................................................................................10
3.5 Tentative Subdivision Maps..................................................................................12
4. Public Benefits...................................................................................................................12
4.1 Provision of Public Benefits..................................................................................12
4.2 Effect of Public Benefits Default...........................................................................16
4.3 Zoning Release. .....................................................................................................16
5. Enforcement.......................................................................................................................17
6. Annual Review of Developer's Compliance With Agreement. ........................................17
6.1 General...................................................................................................................17
6.2 Developer Obligation to Demonstrate Good Faith Compliance............................17
6.3 Procedure...............................................................................................................18
6.4 Annual Review a Non-Exclusive Means for Determining and Requiring
Cure of Developer's Default..................................................................................18
7. Events of Default...............................................................................................................18
7.1 General Provisions.................................................................................................18
7.2 City's Remedies. ....................................................................................................18
7.3 Developer's Remedies............................................................................................19
7.4 Waiver....................................................................................................................19
7.5 Additional City Remedy for Developer's Default.................................................19
7.6 No Personal Liability of City Officials,Employees,or Agents............................19
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7.7 Recovery of Legal Expenses by Prevailing Party in Any Action..........................20
8. Force Majeure....................................................................................................................20
9. Indemnity Obligations of Developer.................................................................................20
9.1 Indemnity Arising From Acts or Omissions of Developer....................................20
9.2 Third Party Litigation............................................................................................20
9.3 Environmental Indemnity......................................................................................21
9.4 Labor Laws............................................................................................................21
10. Assignment........................................................................................................................22
10.1 Permitted Transfers................................................................................................22
10.2 City Approval of Transferee..................................................................................22
10.3 Ongoing Liability of Transferor. ...........................................................................22
11. Mortgagee Rights...............................................................................................................23
11.1 Encumbrances on Property....................................................................................23
11.2 Mortgagee Protection.............................................................................................23
11.3 Mortgagee Not Obligated......................................................................................23
11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure..............................24
12. Miscellaneous Terms.........................................................................................................24
12.1 Notices...................................................................................................................24
12.2 Project as Private Undertaking. .............................................................................25
12.3 Cooperation............................................................................................................25
12.4 Estoppel Certificates..............................................................................................25
12.5 Rules of Construction............................................................................................26
12.6 Time Is of the Essence...........................................................................................26
12.7 Waiver....................................................................................................................26
12.8 Counterparts...........................................................................................................26
12.9 Entire Agreement...................................................................................................26
12.10 Severability............................................................................................................26
12.11 Developer Deposit.................................................................................................27
12.12 Construction...........................................................................................................27
12.13 Successors and Assigns;Constructive Notice and Acceptance.............................27
12.14 No Third Party Beneficiaries.................................................................................28
12.15 Applicable Law and Venue....................................................................................28
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12.16 Section Headings...................................................................................................28
12.17 Incorporation of Recitals and Exhibits..................................................................28
12.18 Recordation............................................................................................................29
12.19 Authority to Execute..............................................................................................29
EXHIBITS
Exhibit A Legal Description of Property
Exhibit B-1 Tract Map Boundary and Site Plan
Exhibit C Phasing Plan
Exhibit D Depiction of Intersection Bulb Out
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DEVELOPMENT AGREEMENT
(2016-002)
(Pursuant to California Government Code sections 65864-65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference
purposes as of the day of , 2016, and is being entered into by and
between the CITY OF TUSTIN ("City")and INTRACORP SOCAL-1, LLC, a California limited
liability company ("Developer'). City and Developer are sometimes collectively referred to in
this Agreement as the "Parties" and individually as a "Party." All terms defined in the
Agreement shall have the same meaning when used herein.
RECITALS
A. Developer has entered into a long term, legally binding contract to purchase that
certain real property constituting 6.813 acres located in the City of Tustin, County of Orange,
State of California, located at 420 West 61h Street and 620-694 South B Street (APN#401-341-
04) as legally described on Exhibit A and depicted on Exhibit B-1 attached to this Agreement
(the "PropertX'). As of the Agreement Date, Developer owns an equitable interest in the
Property, and therefore is authorized to enter into this Agreement pursuant to Government Code
Section 65865. The Property is more particularly described in the legal description attached
hereto as Exhibit A and is depicted on the Tract Map Boundary and Site Plan attached hereto as
Exhibit B-1.
B. Developer is proposing to develop the Property with 140 attached residential
condominium townhomes(as further defined in Section 1 below, the"Project').
C. In order to encourage investment in, and commitment to, comprehensive planning
and strengthen the public planning process and encourage private implementation of the local
general plan, provide certainty in the approval of projects in order to avoid waste of time and
resources, and reduce the economic costs of development by providing assurance to property
owners that they may proceed with projects consistent with existing land use policies, rules, and
regulations, the California Legislature adopted California Government Code sections 65864-
65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into
development agreements with persons or entities having a legal or equitable interest in real
property located within their jurisdiction.
D. On December 3, 1984, the City Council adopted Ordinance No. 923, codified at
Section 9600 et seq. of the Tustin Code Regarding Development Agreements (the "Development
Agreement Ordinance"). This Agreement is consistent with the Development Agreement
Ordinance.
E. Developer shall provide public benefits as provided in this Agreement as
consideration for this Agreement.
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F. The following land use entitlements for the Project are being adopted and
approved by the City Council concurrently with its approval of this Agreement ("Applicable
Approvals"):
(1) General Plan Amendment 2016-01 proposes to change the existing land
use designation for the Property from industrial to planned community residential.
(2) Zoning Code Amendment 2016-01 proposes to change the zoning
designations for the Property from planned industrial to planned community
district.
(3) Subdivision (SUB) 2016-03Nesting Tentative Tract Map
(TTM) 17993 proposes to establish a 140 residential townhomes subdivision on
the Property for condominium purposes, within multiple Phases (Exhibit Q.
(4) Design Review(DR)2016-004.
(5) Development Agreement 2016-002.
(6) Mitigated Negative Declaration dated July 27, 20I6 and adopted by the
City for the Project.
G. City has determined that this Agreement and the Project are consistent with the
City's General Plan and that the Development Agreement complies with the findings established
by the Development Agreement Ordinance, in that the Agreement:
1. Is consistent with the objectives,policies,general land uses and programs
specified in the General Plan.
2. Is compatible with the uses authorized in the district in which the real
property is located.
3. Is in conformity with the public necessity,public convenience,general
welfare,and good land use practices.
4. Will not be detrimental to the health,safety,and general welfare.
5. Will not adversely affect the orderly development of Property.
6. Will have a positive fiscal impact on the City.
H. On , 2016, City's Planning Commission held a public hearing on
this Agreement, made findings and determinations with respect to this Agreement, and
recommended to the City Council that the City Council approve this Agreement.
I. On , 2016, the City Council held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, Developer, and members of the public. On
, 2016, consistent with applicable provisions of the Development Agreement
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Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No.
(the "Adopting Ordinance"), finding this Agreement to be consistent with the City of
Tustin General Plan and approving this Agreement. and authorizing its execution.
J. The Property is proposed to be subdivided and developed in multiple Phases
within two product lines referred to as"Melrose Place" and"Veranda Court." Each Phase within
each product Iine is depicted on the Phasing Plan attached as Exhibit C to this Agreement. For
purposes of this Agreement, any reference to a Phase shall be deemed to be a reference to the
portion of the Property described as that Phase on such Exhibit
AGREEMENT
NOW,THEREFORE,City and Developer agree as follows:
I. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action"shall have the meaning ascribed in Section 7.7 of this Agreement.
"Adopting Ordinance"shall have the meaning ascribed in Recital I of this Agreement.
"Agreement'shall mean this Development Agreement.
"Agreement Date" shall mean the date this Agreement is recorded in the Office of the
Orange County Recorder.
"Applicable Approvals" shall have the meaning ascribed in Recital F of this Agreement.
"Cell Tower'shall have the meaning ascribed in Section 4.1.3(a).
"CE A" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000-21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14,
Section 15000 et seq.), as the same may be amended from time to time.
"City" shall mean the City of Tustin, a California city, and any successor or assignee of
the rights and obligations of the City of Tustin hereunder.
"City Council"shall mean the governing body of the City of Tustin.
"City's Affiliated Parties" shall have the meaning ascribed in Section 9.1 of this
Agreement.
"Claim"shall have the meaning ascribed in Section 9.1 of this Agreement.
"Cure Period" shall have the meaning ascribed in Section 7.1 of this Agreement.
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"Damages"shall have the meaning ascribed in Section 7.3 of this Agreement.
"Default"shall have the meaning ascribed to that term in Section 7.1 of this Agreement.
"Develop' or"Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man-made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement,or facility after the initial construction and completion thereof.
"Developer" shall mean Intracorp SoCaI-1,LLC, a California limited liability company,
and any successor or assignee to all or any portion of the right, title, and interest of the Project in
and to ownership of all or a portion of the Property.
"Development Agreement Ordinance" shall mean the Chapter 6, Part 1, Section 9600 et
seq.of the Tustin City Code.
"Development Agreement Statute" shall mean California Government Code sections
65864-65869.5, inclusive, as the same may be amended from time to time.
"Development Exactions" shall mean the requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of development of the
Project on the environment or other public interests, except as specifically excluded from such
definition pursuant to Section 3.4.4.
'Development Limitation"shall have the meaning ascribed in Section 2.3.2.
"Development Plan" shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Agreement Date, as the same may be
amended from time to time consistent with this Agreement. Such land use entitlements,
approvals and permits include, without limitation, the Development Regulations, to the extent
provided under this Agreement, the Applicable Approvals and all conditions of approval and all
mitigation measures approved for the Project on or before the Agreement Date.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property:
the General Plan; the Development Plan; and, to the extent not expressly superseded by the
Development Plan or this Agreement, all other land use and subdivision regulations governing
the permitted uses,density and intensity of use,design, improvement,and construction standards
and specifications, procedures for obtaining required City permits and approvals for
development, and similar matters that may apply to development of the Project on the Property
during the Term of this Agreement that are set forth in the Tustin City Code dealing with
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buildings and construction, subdivisions and inclusionary housing, and planning, zoning and
density bonus. Notwithstanding the foregoing, the term "Development Regulations," as used
herein, does not include any City ordinance, resolution, code, rule, regulation or official policy
governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii)
taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of
encroachment permits and the conveyance of rights and interests which provide for the use of or
the entry upon public property;or(v) the exercise of the power of eminent domain.
"Effective Date" shall mean the date that is thirty (30) days after the date the Adopting
Ordinance is approved by the City Council. Promptly after the Effective Date occurs, the Parties
agree to cooperate in causing an appropriate instrument to be executed and recorded against the
Property memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Effective Date, and
all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules,
and regulations which may hereafter be enacted and which apply to the Property or any part
thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any
Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
gt seq., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seg., as amended
("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections I I001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seg., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et sea., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 e_t seg., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seg., as amended; the Federal Safe
Drinking Water Act,42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
Air Quality Research Act,42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et sea., as amended; and California Health and Safety
Code Section 25100,et seg.
"Equipment"shall have the meaning ascribed in Section 4.1.3(a).
"Expiration Date"shall have the meaning ascribed in Section 4.I.3(a).
"General Plan"shall mean City's General Plan in effect on the Effective Date.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum-derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Lease"shall have the meaning ascribed in Section 4.1.3(a).
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"Lease End Date"shall have the meaning ascribed in Section 4.1.3(a).
"Mortgage"shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default"shall have the meaning ascribed in Section 7.1 of this Agreement.
"Park Facilities"shall have the meaning ascribed in Section 4.1.1(a).
"Party" or "Parties" shall mean either City or Developer or both, as determined by the
context.
"Phase"shall mean any Phase depicted on Exhibit C.
"Phases"shall mean all of the Phases depicted on Exhibit C,collectively.
"Project" shall mean all on-site and off-site improvements that Developer is authorized
and/or required to construct with respect to the Property, as provided in this Agreement and the
Development Regulations, as the same may be modified or amended from time to time
consistent with this Agreement and applicable law in order to carry out the Development Plan.
"PropertX' shall have the meaning ascribed in Recital A of this Agreement.
"Public Benefits" means those public benefits to be provided by the Developer and the
Project as described in Section 4 of this Agreement that comprise enforceable additional
consideration to City for this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Developer is required to obtain to Develop the Project on and with
respect to the Property after the Effective Date consistent with the Development Regulations and
this Agreement, with the understanding that except as expressly set forth herein City shall not
have the right subsequent to the Agreement Date and during the Term of this Agreement to adopt
or impose requirements for any such Subsequent Development Approvals that do not exist as of
the Agreement Date.
"Term"shall have the meaning ascribed in Section 2.3.1 of this Agreement.
"Termination Date"shall have the meaning ascribed in Section 2.3.2 of this Agreement.
"Transfer"shall have the meaning ascribed in Section 10.1 of this Agreement.
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2. General Provisions.
2.1 Binding Effect of Agreement: Authorized Use of Property.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement and
the Development Regulations and the Applicable Approvals, which establish the permitted uses
of the Property, the density and intensity of use, the maximum height and size of proposed
buildings on the Property and provisions for reservation and dedication of land for public
purposes. For avoidance of doubt, the permitted uses on the Property are residential
development, recreational uses and public facilities and infrastructure in connection with such
uses as described by the Applicable Approvals. Notwithstanding the foregoing, except as set
forth in Section 4.1.3 with respect to the Cell Tower and Equipment, the City hereby agrees that
the existing industrial use of the Property shall be permitted to continue as a non-conforming use
until the earlier of the Termination Date of this Agreement or the commencement of construction
(grading)of the first phase of the Project.
2.2 Developer Representations and Warranties Ruarding Ownership of the Property
and Related Matters Pertaining to this Agreement.
Developer and each person executing this Agreement on behalf of Developer hereby
represents and warrants to City as follows: (i) that Developer has entered into a binding Purchase
and Sale Agreement to purchase the fee simple title to the Property and will be the owner of fee
simple title to the Property as of the Effective Date; (ii) if Developer or any co-owner comprising
Developer is a legal entity that such entity is duly formed and existing and is authorized to do
business in the State of California; (iii)if Developer or any co-owner comprising Developer is a
natural person that such natural person has the legal right and capacity to execute this
Agreement; (iv) that all actions required to be taken by all persons and entities comprising
Developer to enter into this Agreement have been taken and that Developer has the legal
authority to enter into this Agreement; (v) that Developer's entering into and performing its
obligations set forth in this Agreement will not result in a violation of any obligation,contractual
or otherwise, that Developer or any person or entity comprising Developer has to any third party;
(vi) that neither Developer nor any co-owner comprising Developer is the subject of any
voluntary or involuntary bankruptcy or insolvency petition; and (vii) that Developer has no
actual knowledge of any pending or threatened claims of any person or entity affecting the
validity of any of the representations and warranties set forth in clauses (i)-(vi), inclusive, or
affecting Developer's authority or ability to enter into or perform any of its obligations set forth
in this Agreement.
2.3 Term.
2.3.1 The term of this Agreement (the "Term") shall commence on the
Agreement Date and shall extend until the Termination Date (as defined below). Following the
Termination Date, this Agreement shall be deemed terminated and of no further force and effect;
provided however, that said termination of the Agreement shall not affect any right or duty
emanating from the Applicable Approvals or any Subsequent Development Approvals.
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2.3.2 The "Termination Date" shall be the earliest of the following dates: (i) the
fifth (5th) anniversary of the Effective Date as the same may be extended pursuant to
Section 2.3.3; (ii) the date of termination of this Agreement by the City in accordance with any
of Articles 6, 7 and/or 8 of this Agreement and/or Sections 65865.1 and/or 65868 of the
Development Agreement Statute; (iii)the date upon which Developer completes the Project and
the Public Benefits in accordance with the terms of this Agreement, the Applicable Approvals
and the Development Regulations, including Developer's complete satisfaction, performance,
and payment, as applicable, of all Development Exactions, the issuance of all required final
occupancy permits for residential units on the Property, and acceptance by City or applicable
public agency(ies) or private entity(ies) of all required public improvements and offers of
dedication; (iv) the date of entry of a final court judgment not subject to further appeal setting
aside, voiding or annulling the adoption of the Adopting Ordinance or any of the Applicable
Approvals; or (v) the date of adoption of a referendum measure overriding or repealing the City
ordinance approving this Agreement.
2.3.3 Notwithstanding the Parties' expectation that there will be no limit or
moratorium upon the Project's development or the issuance of building or other development
related permits ("Development Limitation") during the Term, the Parties understand and agree
that various third parties may take action causing a de facto Development Limitation.
Consequently, and subject to the limit on the Term set forth in Section 2.3.5, the Term and the
obligations imposed pursuant to this Agreement shall be extended day for day for any delay
arising from or related to a timely filed lawsuit challenging the validity or legality of the
Adopting Ordinance, this Agreement, and/or any of the Applicable Approvals, until the date on
which said challenge is finally resolved in favor of the validity or legality of the Adopting
Ordinance, this Agreement, and/or the Applicable Approvals, whether such finality is achieved
by a final non-appealable judgment, voluntary or involuntary dismissal (and the passage of any
time required to appeal an involuntary dismissal), or binding written settlement agreement. Each
Party shall promptly notify the other Party to this Agreement upon learning of any Development
Limitation.
2.3.4 Notwithstanding any other provision of this Agreement, unless otherwise
agreed by the City Council in its sole discretion, the maximum Term of this Agreement shall be
seven(7)years from the Effective Date.
3. Development of Project.
3.1 Development Regulations:_Developer's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
3.1.1 Other than as expressly set forth in this Agreement, during the Term of
this Agreement, (i) Developer shall have the vested right to Develop the Project on and with
respect to the Property in accordance with the terms of the Development Regulations and this
Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds
inconsistent with the Development Regulations or this Agreement. Notwithstanding the
foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i)
review and approval requirements contained in the Development Regulations, (ii)exercise of any
discretionary authority City retains under the Development Regulations, (iii) the approval,
conditional approval, or denial of any Subsequent Development Approvals that are required for
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Development of the Project as of the Effective Date, or (iv) any environmental approvals that
may be required under CEQA or any other federal or state law or regulation in conjunction with
any Subsequent Development Approvals that may be required for the Project, and in this regard,
as to future actions referred to in clauses (i)-(iv) of this sentence, City reserves its full discretion
to the same extent City would have such discretion in the absence of this Agreement. In
addition, it is understood and agreed that nothing in this Agreement is intended to vest
Developer's rights with respect to any laws, regulations, rules, or official policies of any other
governmental agency or public utility company with jurisdiction over the Property or the Project;
or any applicable federal or state laws, regulations, rules, or official policies that may be
inconsistent with this Agreement and that override or supersede the provisions set forth in this
Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or
official policies are adopted or applied to the Property or the Project prior or subsequent to the
date on which the City Council approves the Adopting Ordinance.
3.1.2 Developer has expended and will continue to expend substantial amounts
of time and money planning and preparing for Development of the Project. Developer represents
and City acknowledges that Developer would not make these expenditures without this
Agreement, and that Developer is and will be making these expenditures in reasonable reliance
upon its vested rights to Develop the Project as set forth in this Agreement.
3.1.3 Developer may apply to City for permits or approvals necessary to modify
or amend the Development specified in the Development Regulations, provided that the request
does not propose an increase in the maximum density, intensity, height, or size of proposed
structures, or a change in use that generates more peak hour traffic or more daily traffic and, in
addition, Developer may apply to City for approval of minor amendments to existing tentative
tract maps, tentative parcel maps,or associated conditions of approval,consistent with the Tustin
City Code. This Agreement does not constitute a promise or commitment by City to approve
any such permit or approval, or to approve the same with or without any particular requirements
or conditions, and City's discretion with respect to such matters shall be the same as it would be
in the absence of this Agreement.
3.2 Other Governmental or Ouasi-Governmental Permits.
Developer shall apply for such other permits and approvals as may be required by non-
City governmental or quasi-governmental agencies having regulatory jurisdiction over the
Project (such as public utilities or special districts, or other federal or state resource agencies) to
the extent required for the development of, or provision of, services and facilities to the Project
as set forth in the Development Plan. The City shall cooperate with and assist Developer in
obtaining such permits and approvals, and, where necessary in making application for such
approvals or permits. Developer shall be solely responsible for all costs and shall be responsible
for the processing of all such permits.
3.3 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement
(including,without limitation, as set forth in Section 3.4 and Article 4 of this Agreement), during
the Term of this Agreement, the City shall not apply to the Project or the Property any ordinance,
policy,rule, regulation,or other measure relating to Development of the Project that is enacted or
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becomes effective after the Agreement Date to the extent it conflicts with this Agreement. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment(tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. The California Supreme Court reached this result because
the consent judgment failed to address the timing of development. The Parties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that Developer
shall have the vested right to Develop the Project on and with respect to the Property at the rate,
timing,and sequencing that Developer deems appropriate within the exercise of Developer's sole
subjective business judgment, provided that such Development occurs in accordance with this
Agreement and the Development Regulations, notwithstanding adoption by City's electorate of
an initiative to the contrary after the Agreement Date. No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar limitation restricts Developer's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
3.4 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 3.4 shall apply to and govern the
Development of the Project on and with respect to the Property.
3.4.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City-wide or to all other properties similarly situated in City.
3.4.2 Processing and Permit Fees. City shall have the right to charge and
Developer shall be required to pay (a) all applicable processing and permit fees to cover the
reasonable cost to City of(i) processing and reviewing applications and plans for any Applicable
Approvals, Subsequent Development Approvals, building permits, excavation and grading
permits, encroachment permits, plan checking, site review and approval, administrative review,
and similar fees imposed to recover City's costs associated with processing, reviewing, and
inspecting Project applications, plans and specifications, (ii) inspecting the work constructed or
installed by or on behalf of Developer, and (iii) monitoring compliance with any requirements
applicable to Development of the Project, in each case at the rates in effect at the time fees are
due and (b) all costs incurred by the City performance of necessary studies and reports in
connection with the foregoing and its obligations under this Agreement (collectively, the "City
Processing Fees").
3.4.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Developer
has consented in writing to the regulations,shall apply to the Property.
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3.4.4 Development Exactions Applicable to Property. During the Term of this
Agreement, Developer shall be required to satisfy and pay all Development Exactions at the time
performance or payment is due to the same extent and in the same amount(s) that would apply to
Developer and the Project in the absence of this Agreement; provided, however, that to the
extent the scope and extent of a particular Development Exaction for the Project has been
established and fixed by City in this Agreement or the conditions of approval for any of the
Development Regulations approved on or before the Effective Date, the City shall not alter,
increase, or modify said Development Exaction in a manner that is inconsistent with such
Development Regulations without Developer's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 3.4.5 hereinbelow).
Notwithstanding any other provision of this Agreement, nothing in this Agreement is intended or
shall be deemed to vest Developer against the obligation to pay any of the following (which are
specifically excluded from the definition of "Development Exactions") in the full amount that
would apply in the absence of this Agreement: (i) City's normal fees for processing,
environmental assessment and review, tentative tract and parcel map review, plan checking, site
review and approval, administrative review, building permit, grading permit, inspection, and
similar fees imposed to recover City's costs associated with processing, reviewing, and
inspecting project applications, plans, and specifications; (ii) fees and charges levied by any
other public agency, utility, district,or joint powers authority, regardless of whether City collects
those fees and charges; or (iii) community facility district special taxes or special district
assessments or similar assessments, business license fees, bonds or other security required for
public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral
connection fees, water service connection fees, new water meter fees, park fees and the New
Construction Tax (as described in Section 2601 of the Tustin City Code.)
3.4.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Developer's vested rights set forth in this Agreement shall
apply to the Property, together with any City ordinances, resolutions, regulations, and official
policies that are necessary to enable City to comply with the provisions of any such overriding
federal or state laws and regulations, provided that (i) Developer does not waive its right to
challenge or contest the validity of any such purportedly overriding federal, state, or City law or
regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or
regulation that prevents or precludes compliance with any provision of this Agreement, City or
Developer shall provide to the other Party a written notice identifying the federal, state, or City
law or regulation, together with a copy of the law or regulation and a brief written statement of
the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly
thereafter City and Developer shall meet and confer in good faith in a reasonable attempt to
determine whether a modification or suspension of this Agreement, in whole or in part, is
necessary to comply with such overriding federal, state, or City law or regulation. In such
negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of
Developer as derived from this Agreement to the maximum feasible extent while resolving the
conflict. City agrees to cooperate with Developer at no cost to City in resolving the conflict in a
manner which minimizes any financial impact of the conflict upon Developer. City also agrees
to process in a prompt manner Developer's proposed changes to the Project and any of the
Development Regulations as may be necessary to comply with such overriding federal, state, or
City law or regulation; provided, however, that the approval of such changes by City shall be
subject to the sole discretion of City,consistent with this Agreement.
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3.4.6 Public Health and Safety. Any City ordinance, resolution,rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property,even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of Developer's vested
rights under this Agreement.
3.4.7 Uniform Building Standards. Existing and future building and building-
related standards set forth in the uniform codes adopted by City and any local amendments to
those codes adopted by the City, including without limitation building, plumbing, mechanical,
electrical, housing, swimming pool, and fire codes, and any modifications and amendments
thereof shall all apply to the Project and the Property to the same extent that the same would
apply in the absence of this Agreement.
3.4.8 Public Works Improvements. To the extent Developer constructs or
installs any public improvements, works,or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
3.4.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or
the Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility
services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that
City undertakes to provide such services to other similarly situated new developments in the City
of Tustin as and when service connections are provided and service commences).
3.5 Tentative Subdivision Maps.
City agrees that Developer may file and process new and existing tentative maps for the
Property consistent with California Government Code sections 66498.1-66498.9. Pursuant to the
applicable provision of the California Subdivision Map Act (California Government Code
Section 66452.6(a)(1)), the life of any tentative subdivision map approved for the Property,
whether designated a"vesting tentative map"or otherwise, shall be extended for the Term of this
Agreement.
4. Public Benefits.
4.1 Provision of Public Benefits.
Developer shall provide the following public benefits which shall constitute additional
consideration for this Agreement for the benefit of the City("Public Benefits"):
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4.1.1 Private Park Facilities: Public Access. The Tustin City Code
(Section 9331 et sec.) requires that the Project meet the City's parkland requirements through
one or more of the following methods: dedication of parkland, credits for provision of private
open space or payment of in-lieu fees. Under the Tustin City Code, the Project (utilizing an
average gross density of 20.6 du/ac, and an average persons per dwelling unit of 2.24 people)
shall be required to provide 0.0067 acres of parkland per unit, or a total requirement of 40,859
square feet, of which a total of 10,215 square feet may be met through credit for provision of
private open space. Developer shall meet the parkland requirements of the Tustin City Code as
follows:
(a) Developer shall construct, as part of the first phase of the Project, a
privately owned, publicly accessible urban park along Sixth Street, of not less than 3,709.55
square feet in the location shown on the Tract Boundary and Site Plan as Exhibit B-1, including
the following amenities: dog station, seating, focal point, pathway and landscaping, or such
alternative amenities as may be approved by the Director of Community Development and the
Director of Parks & Recreation ("Park Facilities"). As a condition recordation of the first phase
final map, Developer shall provide a public access easement to the Park Facilities in favor of the
City and the public pursuant to the final map or a separate access agreement in form acceptable
to the City in its sole discretion. Developer shall maintain, or, following formation thereof, shall
cause the homeowners' association to maintain, the Park Facilities at the sole cost of the
Developer or homeowner's association, as applicable, and such obligation shall be set forth in
the CC&Rs for the Project. Prior and as a condition to recording of the first phase of the final
map, the City shall have the right to review and approve the CC&Rs in order to, among other
things, confirm the aforesaid maintenance obligations are set forth therein. Upon completion of
the Park Facilities and provision to the City of the required access easement, Developer shall
receive park credit on a per square foot basis for the actual square footage of land comprising the
Park Facilities.
(b) Developer shall provide private recreational facilities on the
Property, in an amount not to exceed 6,506 square feet comprised of a recreation area with pool
and pedestrian paseos. Private recreation facilities shall not include private open space
belonging to individual residential units and other non-useable open space. Upon completion of
the foregoing private recreation facilities, Developer shall receive park credit on a per square
foot basis for the actual square footage of land comprising private recreational facilities approved
by the City.
(c) In satisfaction of the remaining park requirement after taking into
account the credits described in clauses (a) and (b) above (which remaining park requirement
shall comprise not less than 30,645 square feet), prior to issuance of the first building permit for
a residential unit in each Phase, Developer shall pay a per unit in-lieu fee for all of the
condominium residential lots created by the final map for such Phase, which shall be paid in a
per lot amount equal for each lot to 1/140`h of the total in lieu fee calculated pursuant to the
following sentence. The total in-lieu fee amount shall be determined in accordance with Tustin
City Code Section 9331d.3 based on the appraised fair market value of the land as determined by
the City immediately prior to the recording of the final map for the first phase of the Project and
as otherwise described Tustin City Code Section 9331d and the in-lieu fee applicable to each unit
shall remain fixed. Notwithstanding that such fees are paid in advance of building permit
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issuance, Developer shall not be entitled to apply for a refund of fees paid pursuant to this
Section 4.1.1 even if building permits are not issued for any of the individual lots or residential
units for which fees have been paid.
4.1.2 Affordable Housing. The City is proposing to adopt on a City-wide basis,
a requirement either(a) that 15% of all housing units constructed in the City be made affordable
to very low, low or moderate income households in specified percentages and that for sale units
comprising affordable housing be restricted for such use for a period of not less than 45 years or
(b) that an in-lieu fee of be paid to the City which the City shall be entitled to utilize for
development of affordable housing. Under the terms of this Agreement, Developer would be
responsible to pay an in-lieu fee therefor. Developer acknowledges that provision of affordable
housing is a matter of public health and safety. As additional consideration for the vested rights
granted to Developer by this Agreement, Developer hereby agrees to pay to the City in-Iieu fees
related to development of the Project in the amount of$8.00 per square foot of gross floor area,
to a maximum aggregate total of One Million Nine Hundred Seventy Nine Thousand Six
Hundred Thirty Two Dollars ($1,979,632), which shall fully satisfy all future requirements by
the City related to provision of affordable housing by the Project. The affordable housing fee
shall be paid on a per unit basis at the time of issuance of a building permit for each residential
unit, until such time as a total of One Million Nine Hundred Seventy Nine Thousand Six
Hundred Thirty Two Dollars ($1,979,632) has been paid in satisfaction of this requirement, and
thereafter the Developer shall not be required to make further payments related to affordable
housing.
4.1.3 Cell Tower and Equipment.
(a) A communications cell tower ("Cell Tower') and certain Cell
Tower-related ground level equipment ("Equipment') is currently located on the Property and
comprises a non-conforming use under the Tustin City Code. The Cell Tower and Equipment
are currently subject to that certain Building and Land Lease dated June 2, 1989 by and between
Tustin Freeway Commerce Center, a California limited partnership, as successor in interest to
Tustin Freeway Commerce Center, as landlord, and CCATT LLC, successor in interest to Los
Angeles Cellular Telephone Company, as tenant, as amended by that certain First Amendment to
Building and Land Lease dated as of November 1, 2003 made by predecessors in interest to
landlord and tenant with respect to a portion of the commercial property commonly known as
622 South B Street, Suite B, Tustin, California ("Lease"). Developer covenants, represents and
warrants for the benefit of the City that (i) Developer has provided City with true and correct
copy of the Lease and as of the date on which the City Council approved the Adopting
Ordinance and the Effective Date, the Lease has not been amended or modified and remains in
full force and effect in accordance with its terms; (ii) Developer shall, upon its acquisition of the
Property, acquire all right, title and interest of landlord under the Lease; (iii) the expiration date
of the Lease is August 31, 2019 ("Expiration Date") and the tenant has no right under the terms
of the Lease or otherwise to extend the term of the Lease beyond such Expiration Date;
(iv) Developer shall not extend the Expiration Date of the Lease nor permit the current owner of
the Property to do so(and has the authority under the option agreement with the current owner to
prohibit such action),and neither Developer nor the current owner of the Property shall enter into
any agreement the effect of which is to extend the Expiration Date of the Lease or to permit the
use of the Cell Tower and Equipment beyond the earlier of the Expiration Date or the actual date
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upon which the Lease is terminated(the "Lease End Date") and (v) in all events, Developer shall
cause the Cell Tower and Equipment to be removed from the Property on or before (1) the date
that is ninety (90) days following the Lease End Date or (2) upon such earlier date on which
Developer seeks issuance of the first certificate of occupancy for a residential unit in Phases 6 or
7 of Melrose Place.
(b) In consideration for the covenants, representations and warranties
of Developer contained in this Section 4.1.3, City hereby agrees to permit the Cell Tower and
Equipment to remain on the Property until the Lease End Date. Developer acknowledges and
agrees that from and after the Lease End Date, the Cell Tower and Equipment shall no longer be
deemed a legal non-conforming use and thereafter shall be deemed to be a public nuisance as
defined in the Tustin City Code, subject to the remedies set forth in Section 1122 of the Tustin
City Code. Accordingly, as an additional public benefit, Developer hereby waives its right to
challenge or seek to set aside the termination of the non-conforming use designation and the
designation of the Cell Tower and Equipment as a public nuisance by the City and waives its
right to any public hearing with respect to same. To assure that the CeII Tower and Equipment is
timely removed, Developer hereby agrees that it shall not receive a certificate of occupancy for a
residential unit in Phases 6 or 7 of Melrose Place unless and until the Lease has terminated or
expired and the Cell Tower and Equipment has been removed and Developer expressly assumes
the risk that development of such Phases of the Project may not be carried out unless and until
the Lease has terminated or expired and the Cell Tower and Equipment has been removed. Any
breach of the covenants, representations and warranties contained in this Section 4.1.3 shall be a
Default under this Agreement and shall constitute cause for a City determination that Developer
has failed to demonstrate good faith compliance with the terms and conditions of this
Agreement.
(c) Promptly upon Developer's acquisition of the Property, Developer
shall install fencing or other temporary enclosure accepted to the Director of Community
Planning to shield the Equipment from pedestrian and vehicular traffic on 6d' Street. Such
fencing or enclosure shall remain in place until the Cell Tower and Equipment are removed.
4.1.4 Construction of Intersection Bulb Out. As part of the first Phase of the
Project to be built and prior to issuance of the first certificate of occupancy for a residential unit
on the Property, Developer shall construct the intersection bulb out adjacent to the Property in
the location shown and as generally depicted on Exhibit D as further described in the conditions
of approval for the Project including without limitation by incorporating the striping plan
depicted on Exhibit D. The City shall have the right to review and approve the final construction
drawings for this improvement prior to construction thereof.
4.1.5 Street and Highways Improvements Payment. As additional consideration
for the vested rights granted to Developer by this Agreement, Developer shall pay to the City the
sum of Twenty Two Thousand Dollars ($22,000) as a condition to issuance of the first certificate
of occupancy for a residential unit upon the Property, which amount shall be utilized by the City
for intersection and signal improvements.
4.1.6 Old Town Sign. Prior and as a condition to issuance of the final certificate
of occupancy for a residential unit in the first Phase of the Project to be built, Developer shall
construct a non-illuminated sign identifying "Old Town Tustin" which shall be placed on the
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Project sound wall adjacent to Interstate 5 freeway and be of a size and in a location which will
not encroach into Caltrans right-of-way thereby eliminating Caltrans review. The City shall have
the right to review and approve the proposed location, lighting, size and design of the signage
prior to construction thereof.
4.2 Effect of Public Benefits Default.
Notwithstanding any other provision of this Agreement to the contrary, if any payment
under this Article 4 is not made or any obligation requiring performance is not timely performed
by Developer, The City may withhold further issuance of building permits or other approvals,
including final maps, for the Project and the Property, until such time as Developer has made the
required payment or undertaken the required performance.
4.3 ZoningRe.
Developer acknowledges and agrees that in accordance with Condition 1.9 to the
Applicable Approvals ("Zoning Condition"): (a) the rezoning of the Property pursuant to the
Applicable Approvals shall not become effective until (i) recordation of the final subdivision
map and a covenant running with the land and (ii) the satisfaction of the prerequisites to
effectiveness of the rezoning set forth in such recorded covenant and (b) in the event that the
conditions to the effectiveness of such rezoning are not met, Developer shall not contest or
protest the rezoning of the Property by the City, nor will Developer contest or protest the
invalidation of the Applicable Approvals. As material consideration to the City for execution of
this Agreement, Developer, on behalf of itself, subsequent owners and their respective
successors and assigns and all other persons and entities claiming by or through the foregoing
("Releasing Parties") hereby (1) agrees that neither it nor the Releasing Parties will contest or
protest any act taken by the City with respect to the Zoning Condition, or the enforcement of
same by the City including without limitation, the rezoning of the property by the City and/or the
invalidation of the Applicable Approvals as a result of such enforcement and (2) waives the right
of each Releasing Party to recover from, and fully and irrevocably releases the City and its
elected and appointed officials, employees, agents, attorneys, affiliates, representatives,
contractors, successors and assigns (individually, a "Released Party" and collectively, the
"Released Parties") from any and all claims, actions,causes of action,demands,orders,or other
means of seeking or recovering losses, damages, liabilities, costs,expenses (including attorneys,
fees, fees of expert witnesses, and consultants' and court and litigation costs),costs and expenses
attributable to compliance with judicial and regulatory orders and requirements, fines, penalties,
liens, taxes, or any type of compensation whatsoever, direct or indirect, known or unknown,
foreseen or unforeseen ("Claims") that Developer or any Releasing Party may now have or
hereafter suffer or acquire arising from or related to the Zoning Condition or the enforcement of
same by the City, including without limitation, the rezoning of the property by the City and/or
the invalidation of the Applicable Approvals as a result of such enforcement. This release
includes Claims of which Developer is presently unaware or which Developer does not presently
suspect to exist which, if known by Developer, would materially affect Developer's release of
the Released Parties. Developer specifically waives the provision of California Civil Code
Section 1542, which provides as follows:
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"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR."
In this connection and to the extent permitted by law, Developer on behalf of itself and the other
Releasing Parties hereby agrees, represents and warrants that (x)it realizes and acknowledges
that factual matters now unknown to it may have given or may hereafter give rise to Claims or
controversies which are presently unknown, unanticipated and unsuspected, (y) the waivers and
releases in this Section 4.3 have been negotiated and agreed upon in light of that realization and
(z) Developer, on behalf of itself and the other Releasing Parties, nevertheless hereby intends to
release, discharge and acquit the Released Parties from any such unknown Claims and
controversies to the extent set forth above which might in any way be included as a material
portion of the consideration given to the City by Developer in exchange for the City's
performance hereunder.
5. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code Section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate)that purports to apply to any or all of the Property.
6. Annual Review of Developer's Com liance With Agreement.
6.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code Section 65865.1 and Tustin City Code Section 9617, as the same may be amended from
time to time. Developer (including any successor to the owner executing this Agreement on or
before the date the Effective Date) shall pay City a reasonable fee in an amount City may
reasonably establish from time to time to cover the actual and necessary costs for the annual
review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
6.2 Developer Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Developer is required to demonstrate good faith
compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require,thirty(30)days
prior to each anniversary of the Effective Date during the Term.
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6.3 Procedure.
The City shall conduct its annual review of the Agreement in accordance with Tustin City
Code Section 9617, as the same may be amended from time to time.
6.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of
Developer's Default.
The annual review procedures set forth in this Article 6 shall not be the exclusive means
for City to identify a Default by Developer or limit City's rights or remedies for any such
Default.
7. Events of Default.
7.1 General Provisions.
In the event of any default, breach, or violation of the terms of this Agreement
("Default"), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the
alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the
Default relates to the failure to timely make a monetary payment due hereunder and thirty (30)
days in the event of non-monetary Defaults) in which the Default must be cured (the "Cure
Period"). During the Cure Period, the Party charged shall not be considered in Default for the
purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If however, a non-monetary Default cannot be cured within such thirty (30) day period, as long
as the defaulting Party does each of the following:
i. notifies the non-defaulting Party in writing with a reasonable
explanation as to the reasons the asserted Default is not curable within the thirty(30) day period;
ii. notifies the non-defaulting Party in writing of the defaulting Party's
proposed course of action to cure the Default;
iii. promptly commences to cure the Default within the thirty (30) day
period;
iv. makes periodic written reports to the non-defaulting Party as to the
progress of the program of cure; and
V. diligently prosecutes such cure to completion,
then the non-defaulting Party shall grant in writing the defaulting Party such additional time as
determined by the non-defaulting party as reasonably necessary to cure such Default.
7.2 City's Remedies.
In the event of a Default by Developer under this Agreement that is not cured during the
Cure Period, City, at its option, may institute legal action to cure, correct or remedy such
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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 7.2, in the event of a
material default by Developer, may give notice of its intent to terminate or modify this
Agreement pursuant to Tustin City Code Section 9618, in which event the matter shall be
scheduled for consideration and review by the City Council. The decision of the City Council
shall be final, subject only to judicial review pursuant to California Code of Civil Procedure
Section 1094.5(b).
7.3 Developer's Remedies.
In the event that City is in material default under this Agreement, Developer shall be
entitled to any or all of the following remedies: (1)Seeking mandamus or special writs,
injunctive relief, or specific performance of this Agreement; (2)Modifications or termination of
this Agreement; or (3) Seeking any other remedy available at law or in equity, provided,
however, except as provided in Section 7.7 below with respect to recovery of legal expenses,
Developer agrees and covenants on behalf of itself and it successors and assigns, not to sue City
for damages 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 general, special, compensatory, expectation, anticipation, indirect, consequential, exemplary
or punitive damages ("Damages") arising out of or connected with any dispute, controversy, or
issues regarding the application or effect of this Agreement, the Applicable Approvals, the
Development Plan, the Development Regulations, any Subsequent Development Approvals, or
any permits or entitlements sought in connection with development or use of the Property or
Project, or any portion thereof. Developer acknowledges that City would not have entered into
this Agreement if City could be held liable for Damages for any default or breach arising out of
this Agreement and that Developer has adequate remedies other than Damages, to secure City's
compliance with its obligations under this Agreement. Therefore, Developer agrees that City, its
officers, employees and agents shall not be liable for any Damages and that this Section shall
apply to any successor,assignee or transferee of the Developer.
7.4 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
7.5 Additional City Remedy for Developer's Default.
In the event of any Default by Developer,in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications,or improvements to public property which it may have received prior to Developer's
Default without recourse from Developer or its successors or assigns.
7.6 No Personal Liability. o�y Officials,Employees or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
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7.7 Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure Section 1033.5
or California Civil Code Section 1717 in the absence of this Agreement. These costs and
expenses include court costs, expert witness fees, attorneys' fees, and costs of investigation and
preparation before initiation of the Action. The right to recover these costs and expenses shall
accrue upon initiation of the Action, regardless of whether the Action is prosecuted to a final
judgment or decision.
8. Force Maieure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Developer's obligation to pay Development
Exactions and amounts specified as Public Benefits under this Agreement, be extended pursuant
to this Section.
9. Indemnity Obligations of Developer.
9.1 Indemnity Arising From Acts or Omissions of Developer.
Except to the extent caused by the intentional misconduct or actively negligent acts,
errors or omissions of City or one or more of City's officials, employees, agents, attorneys and
contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and
hold harmless City and City's Affiliated Parties from and against all actions, suits, claims,
liabilities, losses, damages, penalties, obligations and expenses (including but not limited to
attorneys' fees, expert witness fees and court costs) (collectively, a "Claim") that may arise,
directly or indirectly, from the acts, omissions, or operations of Developer or Developer's
officers, agents, contractors, subcontractors, agents, or employees in the course of Development
of the Project or any other activities of Developer relating to the Property or pursuant to this
Agreement. City shall have the right to select and retain counsel to defend any Claim filed
against City and/or any of City's Affiliated Parties, and Developer shall pay the reasonable cost
for defense of any Claim. The indemnity provisions in this Section 9.1 shall be effective on the
date on which the Adopting Ordinance is approved by the City Council and shall survive the
Termination Date.
9.2 Third Party Litigation.
In addition to its indemnity obligations set forth in Section 9.1, Developer shall
indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any
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Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the
approval of this Agreement, the Adopting Ordinance, the Development Plan, any of the
Development Regulations for the Project (including without limitation any actions taken
pursuant to CEQA with respect thereto), any Subsequent Development Approval,or the approval
of any permit or entitlement granted pursuant to this Agreement. Said indemnity obligation shall
include,without limitation, payment of attorney's fees, expert witness fees, and court costs. City
shall promptly notify Developer of any such Claim and City shall cooperate with Developer in
the defense of such Claim. City shall be entitled to retain separate counsel to represent City
against the Claim and the City's defense costs for its separate counsel shall be included in
Developer's indemnity obligation, provided that such counsel shall reasonably cooperate with
Developer in an effort to minimize the total litigation expenses incurred by Developer. Provided
that Developer has then paid in full all sums due to the City or its counsel incurred pursuant to
this Section and otherwise fully performed its indemnity obligations hereunder, Developer shall
be entitled to retain the same. The indemnity provisions in this Section 9.2 shall be effective on
the date on which the Adopting Ordinance is approved by the City Council and shall survive the
Termination Date.
9.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 9.1, from and after the date on
which the Adopting Ordinance is approved by the City Council, Developer shall indemnify,
defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims
for personal injury or death, property damage, economic loss, statutory penalties or fines, and
damages of any kind or nature whatsoever, including without limitation attorney's fees, expert
witness fees, and court costs, based upon or arising from any of the following: (i) the actual or
alleged presence of any Hazardous Substance on or under any of the Property in violation of any
applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance
from the Property through the soils or groundwater to a location or locations off of the Property;
and (iii)the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from
the Property and any other area disturbed, graded, or developed by Developer in connection with
Developer's Development of the Project. The indemnity provisions in this Section 9.3 shall be
effective on the date on which the Adopting Ordinance is approved by the City Council and shall
survive the Termination Date.
9.4 Labor Laws.
Developer shall carry out the construction of the Project, including all improvements, in
conformity with all Development Regulations including all applicable federal and state labor
laws and regulations and shall investigate the applicability of and, if and to the extent applicable,
pay prevailing wages meeting the requirements of such laws and regulations; provided that
Developer reserves the right to reasonably contest such laws and regulations. Developer hereby
agrees that, with respect to the Project, Developer shall be fully responsible for determining
whether the foregoing wage requirements are applicable and agrees to indemnify, defend and
hold the City and its elected and appointed officials, employees, agents, attorneys, affiliates,
representatives, contractors, successors and assigns free and harmless from and against any and
all Claims arising from or related to compliance by Developer or Developer's officers, directors,
employees, agents, representatives, consultants and/or contractors (at every tier) in construction
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of the Project with the prevailing wage requirements imposed by any applicable federal and State
labor laws.
10. Assignment.
10.1 Permitted Transfers.
Developer shall have the right, upon approval of City, which approval shall not be
unreasonably withheld, to sell, transfer or assign (hereinafter, collectively, a "Transfer")
Developer's interest in this Agreement and the Property, in whole or in part, to a third party
acquiring an interest or estate in the Property or any portion thereof(such successor, a"Permitted
Transferee") and such successor, as of the effective date of the Transfer, shall become the
"Developer" under this Agreement; provided, however, that no such Transfer shall violate the
provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local
subdivision ordinance and each Transfer shall be made in strict compliance with the conditions
precedent set forth in Sections 10.2 and 10.3.
10.2 City Approval of Transferee.
Prior to the effective date of any proposed Transfer, Developer(as transferor)shall:
i. notify City, in writing, of such proposed Transfer and, in order to
permit the City to make an informed decision to approve or disapprove the Transfer, provide to
the City such financial statements and evidence of the proposed Transferee's fitness, experience
and ability (or that of its senior managerial personnel) to comply with the obligations assumed;
and
ii. deliver to City a written assignment and assumption, executed in
recordable form by the transferring and successor Developer and in a form subject to the
reasonable approval of the City Attorney of City(or designee),pursuant to which the transferring
Developer assigns to the successor Developer and the successor Developer assumes from the
transferring Developer all of the rights and obligations of the transferring Developer with respect
to the Property, or interest in the Property, or portion thereof to be so Transferred, including in
the case of a partial Transfer the obligation to perform such obligations that must be performed
outside of the Property so Transferred that are a condition precedent to the successor Developer's
right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have
all of the same rights, benefits, duties, obligations, and liabilities of Developer under this
Agreement with respect to the portion of, or interest in, the Property sold, transferred, and
assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less
than all of the Property, or interest in the Property, no such Permitted Transferee shall have the
right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or
increases the obligations of the Developer with respect to the balance of the Property.
10.3 Ongoing Liability of Transferor.
Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and
severally liable to City, together with the successor Developer, to perform all of the transferred
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obligations set forth in or arising under this Agreement unless there is full satisfaction of all of
the following conditions, in which event the transferring Developer shall be automatically
released from any and all obligations with respect to the portion of the Property so Transferred:
(i) the transferring Developer no longer has a legal or equitable interest in the portion of the
Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
Developer is not then in Default under this Agreement and no condition exists that with the
passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring Developer has provided City with the notice and the fully executed written and
recordable assignment and assumption agreement required as set forth in Section 10.2(b); and
(iv) the successor Developer either (A) provides City with substitute security equivalent to any
security previously provided by the transferring Developer to City to secure performance of the
successor Developer's obligations hereunder with respect to the Property, or interest in the
Property, or the portion of the Property so Transferred or (B) if the transferred obligation in
question is not a secured obligation, the successor Developer either provides security reasonably
satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor
Developer has the financial resources or commitments available to perform the transferred
obligation at the time and in the manner required under this Agreement and the Development
Regulations for the Project.
11. Mortgagee Rights.
11.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Developer in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
11.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
11.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 11.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Developer or
other affirmative covenants of Developer, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Developer is a condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
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11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of (i) the results of the periodic review of compliance specified in Article 6 of this
Agreement, and(ii) any default by Developer of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within thirty(30) days after receiving a Notice of Default with respect to a monetary Default and
within sixty(60)days after receiving a Notice of Default with respect to a non-monetary Default.
If the Mortgagee can only remedy or cure a non-monetary Default by obtaining possession of the
Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and
continuity through a receiver or otherwise, and to remedy or cure the non-monetary Default
within sixty (60) days after obtaining possession and, except in case of emergency or to protect
the public health or safety, City may not exercise any of its judicial remedies set forth in this
Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the
sixty (60)-day period. In the case of a non-monetary Default that cannot with diligence be
remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is
reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly
commences to cure the non-monetary Default within sixty (60) days and diligently prosecutes
the cure to completion.
12. Miscellaneous Terms.
12.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
With a copy to: Woodruff,Spradlin Smart
555 Anton Boulevard, Ste 1200
Costa Mesa,CA 92626
Attn: David E. Kendig, Esq.
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TO DEVELOPER: Intracorp SoCal-1, LLC
4041 MacArthur Blvd., Suite 250
Newport Beach,CA 92660
Attn: Peter Lauener
With a copy to: O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine,CA 92602
Attn: John P. Yeager,Esq.
Either Party may change the address stated in this Section 12.1 by delivering notice to the
other Party in the manner provided in this Section 12.1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of. (i) the date received or(iii) three
business days after deposit in the mail as provided above.
12.2 Proiect as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
partnership,joint venture, or other association of any kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the
owner of the property.
12.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
12.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
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The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty(30)days following receipt.
12.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and"may" is permissive.
I2.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
12.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
12.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart,but all of which shall together constitute one and the same agreement.
12.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
12.10 Severabilitv.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of
the benefits of this Agreement if any of Developer's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Developer shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Developer's obligations under this Agreement. The provisions
of this Section 12.10 shall be effective on the date on which the Adopting Ordinance is approved
by the City Council and shall survive the Termination Date.
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12.11 Developer Deposit.
Developer shall, within ten (10) business days following approval by the City of this
Agreement, and as a condition to the effectiveness of this Agreement, deliver to the City in cash
or cash equivalent funds, a deposit in the amount requested by the City based on the City's
estimated City Processing Fees including staff time required to complete plan check and
perform inspections (the "City Costs Deposit"), which amount shall be deposited by City in an
account in a bank or trust company selected by the City and with no requirement that such
account be interest bearing. If any interest is paid on such account, such interest shall accrue to
any balances in the account for the benefit of the City. If at any time prior to the issuance of the
final certificate of occupancy for a residential unit on the Property, the amount of funds in the
City Costs Deposit account is depleted below Ten Thousand Dollars ($10,000), Developer shall
be required to pay to the City each time an additional Twenty Thousand Dollars ($20,000) or
such other amount as the City may specify as required in City's estimation to cover the cost of
City Processing Fees, including as required to complete plan check and perform inspections,
which shall be credited to the City Costs Deposit. Each such payment shall be deposited by the
City into the City Costs Deposit account and shall be applied to City Processing Fees. The City
Costs Deposit has been established to fund the City Processing Fees and may be used by the City
for such purpose, and shall be depleted accordingly. Immediately upon incurring any City
Processing Fees or costs or receipt of an invoice from third parties for same, the City shall have
the right to deduct the amounts due it on account thereof from the City Costs Deposit The City
Costs Deposit shall be retained by the City until the date of issuance of the final certificate of
occupancy for a residential unit on the Property and the remaining amount of the City Costs
Deposit then held by the City, if any, shall be promptly returned by the City to Developer
thereafter, provided that the return of such funds shall not terminate the obligations of Developer
to pay all City Processing Fees arising or incurred prior to issuance of the final certificate of
occupancy for the final residential unit on the Property. Developer shall pay any outstanding
amounts due with respect to City Processing Fees to the City within thirty (30) calendar days
following receipt of an invoice from the City therefor, provided that the City shall first apply the
amount of the City Costs Deposit, if any, then held by it in satisfaction of such invoice, and shall
reflect the amount of such credit on the invoice.
12.12 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and
Developer are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and Developer had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Developer each agree and acknowledge that the terms
of this Agreement are fair and reasonable, taking into account their respective purposes, terms,
and conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against either Party.
12.13 Successors and Assigns;Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
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Iand. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property;
(ii)runs with the Property and each portion thereof; and (iii) is binding upon each Party and each
successor in interest during its ownership of the Property or any portion thereof. Every person or
entity who now or later owns or acquires any right, title, or interest in any part of the Project or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 12.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Article 10 or is a Permitted Transferee under this
Agreement.
12.14 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Developer. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
12.15 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing,construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
12.16 Section Headings.
All Section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
12.17 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT DESCRIPTION
DESIGNATION
A Legal Description of Property
B-1 Tract Map Boundary and Site Plan
C Phasing Plan
D Depiction of Intersection Bulb Out
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12.18 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code Section 65868.5. The date of
recordation of this Agreement shall not modify or amend the Effective Date or the Termination
Date.
12.19 Authority to Execute.
The person or persons executing this Agreement on behalf of each Party warrants and
represents that he or she/they have the authority to execute this Agreement on behalf of such
Party and warrants and represents that he or she/they has/have the authority to bind such Party to
the performance of its obligations hereunder.
[Signature page follows]
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SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"DEVELOPER"
INTRACORP SOCAL-1,LLC, a California Iimited
liability company
By:
Peter Lauener,President
"CITY"
CITY OF TUSTIN
By:
John Nielsen, Mayor
ATTEST:
Erica N. Rabe,City Clerk
APPROVED AS TO FORM:
David E. Kendig,City Attorney
#166356vA 9181.2 30
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California }
County of Orange )
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verities only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California )
County of Orange )
On , before me, a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
#1663560 9184.2 31
DRAFT
9120/16
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, IN
THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
PARCELS 1, 2 AND 3, IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 190, PAGES 34 OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY,
CALIFORNIA.
APN: 401-341-04
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