HomeMy WebLinkAboutORD 1504 (2019)ORDINANCE NO. 1504
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
APPROVING DEVELOPMENT AGREEMENT (DA) 2019-00001 BETWEEN
THE CITY OF TUSTIN AND THE BROOKFIELD RESIDENTIAL TO
FACILITATE THE DEVELOPMENT OF 400 HOMES WITHIN
NEIGHBORHOOD D OF THE TUSTIN LEGACY SPECIFIC PLAN.
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 Brookfield Residential for the
development of 400 for -sale residential units, a community recreation facility,
open space areas, and other neighborhood amenities on an approximately
25.4 -acre site currently owned by the City of Tustin within Planning Areas 8,
13, and 14 of the Tustin Legacy Specific Plan.
B. That Tustin Legacy Specific Plan Section 4.2.7 requires all private
development at Tustin Legacy to obtain a Development Agreement in
accordance with Section 65864 et seq. of the Government Code and Sections
9600 to 9619 of the Tustin City Code. In compliance with Tustin City Code
Section 9611, the Tustin Planning Commission must make a recommendation
on the proposed Development Agreement to the City Council.
C. That a public hearing was duly called, noticed, and held on said application on
November 12, 2019, by the Planning Commission. The Planning Commission
adopted Resolution No. 4394 determining that the disposition of Lot 2 and 5-10
of Tract 18197 is in conformance with the adopted General Plan. The
Planning Commission adopted Resolution No. 4395 recommending that the
City Council adopt Ordinance No. 1504 and approve the project.
D. That a public hearing was duly called, noticed, and held on said application
on December 3, 2019 by the City Council.
E. On January 16, 2001, the City of Tustin certified the Program Final
Environmental Impact Statement/Environmental Impact Report (FEIS/EIR) for
the reuse and disposal of MCAS Tustin. On December 6, 2004, the City
Council adopted Resolution No. 04-76 approving a Supplement to the
FEIS/EIR for the extension of Tustin Ranch Road between Walnut Avenue and
the future alignment of Valencia North Loop Road. On April 3, 2006, the City
Council adopted Resolution No. 06-43 approving an Addendum to the
FEIS/EIR. And, on May, 13, 2013, the City Council adopted Resolution No.
13-32 approving a second Addendum to the FEIS/EIR. On July 5, 2019, the
City Council adopted Resolution No. 17-23 approving a second Supplement to the
Ordinance No. 1504
Page 1 of 4
FEIS/EIR. The FEIS/EIR along with its Addenda and Supplement is a program
EIR under the California Environmental Quality Act (CEQA). The FEIS/EIR,
Addenda and Supplement considered the potential environmental impacts
associated with development on the former Marine Corps Air Station, Tustin.
An Environmental Checklist has been prepared and concluded that these
actions do not result in any new significant environmental impacts or a
substantial increase in the severity of any previously identified significant
impacts in the FEIS/EIR. Moreover, no new information of substantial
importance has surfaced since certification of the FEIS/EIR.
F. That the Development Agreement can be supported by the following findings:
1. The project is consistent with the objectives, policies, general land uses
and programs specified in the General Plan and the Tustin Legacy
Specific Plan in that residential uses are permitted uses within Planning
Areas 8, 13, and 14 of Neighborhood D.
2. The project is compatible with the uses authorized in the district in
which the real property is located (Planning Areas 8, 13, and 14) in that
mixed-use urban development is envisioned in the area and similar and
compatible uses exist and are envisioned within close proximity of the
project site.
3. The project is in conformity with the public necessity, public
convenience, general welfare, and good land use practices in that the
project would provide three (3) product types within the 400 new
housing units for new and existing Tustin residents thereby providing
additional options for housing to the City's housing stock.
4. The project will not be detrimental to the health, safety, and general
welfare. The project will comply with the Tustin Legacy Specific Plan,
Tustin City Code, and other regulations to ensure that the project will
not be detrimental in any way.
5. The project will not adversely affect the orderly development of property
in that the proposed project is orderly, well designed, and equipped with
necessary infrastructure and amenities to support existing and future
residents and businesses in Tustin Legacy.
6. The project will have a positive fiscal impact on the City in that the
provisions of the proposed Development Agreement and conditions of
approval will ensure that the project will have a positive fiscal impact on
the City.
Ordinance No. 1504
Page 2 of 4
SECTION 2. The City Council hereby approves Development Agreement 2019-
00001 attached hereto as Exhibit A and subject to final approval of the
City Attorney.
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or
portion of this ordinance is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Tustin hereby declares
that it would have adopted this ordinance and each section,
subsection, sentence, clause, phrase, or portion thereof irrespective of
the fact that any one or more sections, subsections, sentences,
clauses, phrases, or portions be declared invalid or unconstitutional.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of
Tustin on this 17th day of December, 2019.
LETITA CLANK,
Mayor Pro Tem
ERICA N. YA DA,
City Clerk
APPROVED AS TO FORM:
a J �-7Av" �� /
DAVID E. KENDIG,
City Attorney
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
ORDINANCE NO. 1504
Ordinance No. 1504
Page 3 of 4
I, Erica N. Yasuda, City Clerk and ex -officio Clerk of the City Council of the City of
Tustin, California, does hereby certify that the whole number of the members of the
City Council of the City of Tustin is 5; that the above and foregoing Ordinance No.
1504 was duly and regularly introduced at a regular meeting of the Tustin City
Council, held on the 3rd day of December, 2019, and was given its second reading,
passed, and adopted at a regular meeting of the City Council held on the 17th day of
December, 2019, by the following vote:
COUNCILMEMBER AYES: Clark, Puckett, Cooper, Lumbard _(4)
COUNCILMEMBER NOES: (0)
COUNCILMEMBER ABSTAINED: (0)
COUNCILMEMBER ABSENT: Bernstein (1)
ERICA N. Y UDA,
City Clerk
Ordinance No. 1504
Page 4 of 4
1
Ordinance No, 1504
DA 2019-00001
Page 4
1
1
EXHIBIT A
Development Agreement 2019-00001
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT BE RECORDED
AND BE EXEMPT FROM PAYMENT OF
A RECORDING FEE PER
GOVERNMENT CODE 6103 AND 27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attn: City Clerk
Space Above This Line Reserved for Recorder's Use Only
TUSTIN LEGACY DEVELOPMENT AGREEMENT
THIS TUSTIN LEGACY DEVELOPMENT AGREEMENT ("Agreement') is entered
into effective as of the Effective Date (as defined below) by and between the CITY OF
TUSTIN, a California municipal corporation ("City"), and BROOKFIELD HOMES
SOUTHERN CALIFORNIA LLC, a Delaware limited liability company ("Developer"). City
and Developer are collectively referred to herein as the "Parties" and individually as a "Party".
RECITALS
The following recitals are an integral part of this Agreement and are binding on the Parties.
Capitalized terms used in these Recitals shall have the meanings ascribed to such terms as set forth
in Section 1.1.
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk -of development, the Legislature of the
State adopted the "Development Agreement Statute," Sections 65864, et seq., of the Government
Code. The Development Agreement Statute authorizes City to enter into an agreement with any
person having a legal or equitable interest in real property and to provide for development of such
property and to establish certain development rights therein. Pursuant to Government Code
Section 65451, the City has adopted the Tustin Legacy Specific Plan regulating land uses within
Tustin Legacy. Specific Plan Section 4.2.7 states: "prior to issuance of any permits or approval of
any entitlements within the Specific Plan area, all private development shall first obtain a
Development Agreement in accordance with Section 65864 et seq. of the Government Code and
Sections 9600 to 9619 of the Tustin City Code." Pursuant to the authorization set forth in the
Development Agreement Statute, City has enacted procedures for entering into development
agreements which are contained in Tustin City Code Sections 9600 to 9619.
B. City and Developer intend, concurrently with the execution of this Agreement, to
enter into the Tustin Legacy Disposition and Development Agreement for Portions of Disposition
Tustin Brookfield Development Agt 1 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
i
Parcels 2C and 8, as the same may be amended from time to time ("DDA") pursuant to which City
shall agree to sell, and Developer shall agree to buy and develop, certain real property, all as more
specifically set forth in the DDA.
C. Pursuant to the DDA, Developer has an equitable and/or legal interest in the
Property in that it has the contractual right to purchase the Property from City for development of
the Project.
D. Pursuant to Government Code Section 65864, the Legislature has found and
determined that:
"(a) The lack of certainty in the approval of development projects can result in
a waste of resources, escalate the cost of housing and other development to the
consumer, and discourage investment in and commitment to comprehensive
planning which would make maximum efficient utilization of resources at the least
economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval of
the project, the applicant may proceed with the project in accordance with existing
policies, rules and regulations, and subject to conditions of approval, will
strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic costs of development.
(c) The lack of public facilities, including, but not limited to, streets, sewerage,
transportation, drinking water, school, and utility facilities, is a serious impediment
to the development of new housing. Whenever possible, applicants and local
governments may include provisions in agreements whereby applicants are
reimbursed over time for financing public facilities."
In accordance with the legislative findings set forth in Government Code Section 65864,
City wishes to attain certain public objectives that will be furthered by this Agreement. This
Agreement will provide for the orderly implementation of the General Plan of the City ("General
Plan"), and the phased development and completion of the Project in accordance with the DDA
and the Specific Plan. This Agreement will further the comprehensive planning objective
contained in the City's General Plan, to promote an economically balanced community with
complimentary and buffered land uses to include commercial, professional, multi -family and
single-family development.
E. The DDA, the Specific Plan and the development under the DDA and the Specific
Plan require a substantial early investment of money and planning and design effort by Developer.
Without the protection provided by this Agreement, uncertainty that the Project may be completed
in its entirety could result in a waste of public resources, escalate the cost of public improvements,
and discourage Developer's provision of the Public Benefits or payment for those certain public
improvements specified in the DDA and the Specific Plan. Developer's participation in the
implementation of the DDA and the Specific Plan will result in a number of public benefits. These
Tustin Brookfield Development Agt 2 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
benefits require the cooperation and participation of City and Developer and could not be secured
without mutual cooperation in and commitment to the comprehensive planning effort that has
resulted in the DDA and the Specific Plan.
F. Developer wishes to avoid certain development risks and uncertainties that would,
in the absence of this Agreement, deter and discourage Developer from making a commitment to
implement the DDA and the Specific Plan. These are as follows:
1. It is generally the law in California that, absent extraordinary circumstances
or the approval of a vesting subdivision map, an owner of the land does not obtain a vested right
to improve land until the issuance of a building permit for the improvements and commencement
of substantial construction pursuant to that permit. The result is a disincentive for landowners to
invest monies in the early completion of major infrastructure and other public improvements as
part of any project or in early comprehensive planning and design studies.
2. Development under the DDA and the Specific Plan requires a substantial
early investment of money and planning and design effort by Developer. Uncertainty about City's
land use policies, rules and regulations could result in a waste of private resources, escalate the
cost of certain public improvements, and escalate costs of proposed housing and other uses.
G. The following assurances are of vital concern to Developer to offset or remove the
disincentives and uncertainties set forth in Recital F:
1. Assurance to Developer that, in return for Developer's commitment to the
development of the Property that is contained in the DDA, any approved entitlements, and the
Specific Plan, City will in turn remain committed to the Existing Entitlement Approvals;
2. Assurances to Developer that as Developer becomes obligated for the costs
of designing and constructing the public and private improvements included in the DDA and the
Specific Plan, and to make dedications, Developer will become entitled to rely upon the Vested
Rights in the development of the Property; and
3. Assurances to Developer that in City's administration of the Existing
Entitlement Approvals, Developer will be allowed, consistent with the DDA and the Specific Plan,
to develop the housing types and intensities identified in the DDA and the Specific Plan. These
assurances provide for cooperation and participation of City and Developer and could not be
secured without mutual cooperation in and commitment to the comprehensive planning effort that
has resulted in the DDA and the Specific Plan.
H. The Development Agreement Statute authorizes local agencies to enter into binding
development agreements with persons having legal or equitable interests in real property for the
development of such property. City wishes to enter into a development agreement with Developer
to secure the Public Benefits and additional consideration described in this Agreement, and
Developer wishes to enter into a development agreement with City to avoid the development risks
and uncertainties and to obtain the assurances described above.
Tustin Brookfield Development Agt 3 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
I. This Agreement is intended to be, and shall be construed as, a development
agreement within the meaning of the Development Agreement Statute. This Agreement is
intended to augment and further the purposes and intent of the Parties in the implementation of the
DDA and the Specific Plan. This Agreement, as a device for the implementation of the Existing
Entitlement Approvals and the Specific Plan, will eliminate uncertainty in planning for and secure
the orderly development of the Project, ensure a desirable and functional community environment,
provide effective and efficient development of public facilities, infrastructure, and services
appropriate for the development of the Project, assure attainment of the maximum effective
utilization of resources within the City, and provide other significant public benefits to City and
its residents by otherwise achieving the goals and purposes of the Development Agreement Statute.
In exchange for these benefits to City, Developer desires to receive the assurance that it may
proceed with development of the Project in accordance with the terms and conditions of this
Agreement and the Applicable Rules, all as more particularly set forth herein.
J. City has determined that this Agreement and the Project are consistent with the
Marine Corps Air Station -Tustin Reuse Plan, the General Plan and the Specific Plan and that this
Agreement complies with the findings established by Tustin City Code Section 9611 in that the
Agreement:
1. Is consistent with the objectives, policies, general land uses and programs
specified in the General Plan and the Specific Plan.
2. Is compatible with the uses authorized in the district in which the real
property is located (Specific Plan Neighborhood D, Planning Area 8, 13 and 14). Note: the
proposed for -sale residential project complies with the uses authorized by the Specific Plan.
3. Is in conformity with the public necessity, public convenience, general
welfare, and good land use practices. Note: the Project will enhance housing opportunities within
the City and support economic development and activity in the vicinity of the Project.
4. Will not be detrimental to the health, safety, and general welfare. Note:
compliance with the Specific Plan, Tustin City Code, and other regulations will ensure that the
Project will not be detrimental in any way.
5. Will not adversely affect the orderly development of property. Note: the
proposed Project is orderly and well designed.
6. Will have a positive fiscal impact on the City. Note: the provisions of the
DDA will ensure that the Project will have a positive fiscal impact on the City.
K. On , 2019 the Planning Commission held a public hearing
on this Agreement, made certain findings and determinations with respect thereto, and
recommended to the City Council of City that this Agreement be approved. On
, 2019 the City Council held a public hearing on this Agreement, considered the
recommendations of the Planning Commission, and adopted Ordinance No. , approving
Tustin Brookfield Development Agt 4 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
this Agreement and authorizing its execution. Ordinance No. was formally adopted at a
second reading by the City Council on , 2019.
L. On , 2019, the Planning Commission held a public hearing
and recommended to the City Council of City that it approve a Design Review application 2019-
00009 and the Developer Tentative Tract Map. On , 2019, the City Council held
a public hearing on the Design Review application 2019-00009 and the Developer Tentative Tract
Map, considered the recommendations of the Planning Commission, and approved the Developer
Tentative Tract Map and the above referenced Design Review application.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein
by this reference, and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
DEFINITIONS AND EXHIBITS.
1.1. Definitions. Any capitalized word or term used in this Agreement shall have the
definition or meaning ascribed to such word or term as provided in the DDA, unless the word or
term is expressly provided in this Section 1.1 or otherwise expressly defined in this Agreement, in
which event such word or term shall have the definition or meaning as provided herein. All
capitalized terms not specifically defined in the DDA or this Agreement shall be interpreted by the
Director of Community Development of the City. The following terms when used in this
Agreement shall be defined as follows:
1.1.1 "Action" is defined in Section 8.10.
1.1.2 "Administrative Amendment' is defined in Section 2.6.2.
1.1.3 "Agreement' is defined in the introductory paragraph.
1.1.4 "Applicable Rules" means (a) the Existing Land Use Regulations of the
City; (b) the Future Rules that are not in conflict (as defined in Section 3.6.2) with the Vested
Rights; (c) the Future Rules made applicable to the Project and/or the Property pursuant to
Section 3.6.2 or 3.10; (d) the Existing Entitlement Approvals, and (e) the Subsequent Entitlement
Approvals to which the Project and/or the Property or development and use thereof are made
subject to pursuant to the terms of this Agreement.
1.1.5 "Applications" is defined in Section 3.11.2.
1.1.6 "Business Day(s)" means any day on which City Hall is open for
business and shall specifically exclude Saturday, Sunday or a legal holiday.
1.1.7 "Block" is defined in Section 3.20.
P4
Tustin Brookfield Development Agt 5 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC —
Development Agreement
1.1.8 "Certificate" is defined in Section 4.5.
1.1.9 "Certificate of Compliance" means that certain Certificate of
Compliance to be issued by the City to Developer pursuant to the DDA only upon satisfaction of
all conditions precedent thereto set forth in the DDA.
1.1.10 "City" is defined in the introductory paragraph.
1.1.11 "City Costs Deposit" is defined in Section 3.13.1(b).
1.1.12 "City Manager" means Mr. Matthew S. West, or his successor in such
capacity, or other designee as identified in writing by the City Manager.
1.1.13 "City Map" means that certain tentative tract map and final tract map
No. 18197 for Specific Plan Neighborhood D being processed by the City for financing. and
conveyancing purposes, as the same may be amended or modified from time to time.
1.1.14 "City Processing Fees" means (a) all fees and charges imposed by the
City under the then -current regulations for processing applications and requests for permits,
approvals, and other actions and monitoring compliance with any permits issued or approvals
granted, including Plan Check and Inspection Fees and all applicable processing and permit fees
to cover the reasonable cost to the City of (i) processing and reviewing applications and plans for
any Entitlement Approvals, site review and approval, administrative review, and similar fees
imposed to recover the 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, and (b) all costs incurred by the City in the performance of necessary
studies and reports in connection with the foregoing and its obligations under this Agreement.
1.1.15 "Condominium Plan" means the Condominium Plans creating the
individual units on the Condominium Plan approved by DRE and, with respect to conformity with
Approved Plans only, approved by the City, and Recorded against the Development Parcels or any
portion thereof.
1.1.16
"Costs" is defined in Section 8.10.
1.1.17
"Covenant" is defined in Section 3.1.4.
1.1.18
"Damages" is defined in Section 5.3.
1.1.19
"DDA" is defined in the Recital B.
1.1.20
"Decision" is defined in Section 8.10.
1.1.21 "Defaulting Party" is defined in Section 5.1.
Tustin Brookfield Development Agt 6 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
1.1.22 "Developer" is defined in the introductory paragraph and includes any
Successors In Interest of Developer,
1.1,23 "Developer Final Tract Map" means the final tract map for the Property
(Tract Map No. 19013) which shall be substantially in the form and content required by the
approved Developer Tentative Tract Map, unless otherwise approved by the City in its
Governmental Capacity, The Developer Final Tract Map shall be recorded in one phase.
1.1.24 "Developer Tentative Tract Map" means the tentative tract map for the
Property (Tentative Tract Map No. 19103) approved by the City Council with respect to the
Property prior to the Effective Date of this Agreement, as the same may be modified or amended
with the approval of the City in its Governmental Capacity.
1.1.25 "Development Agreement Statute" is defined in Recital A.
1.1.26 "Development Permits" means all ministerial permits, certificates and
approvals which may be required by City or other governmental authority for the development and
construction of the improvements for the Project, in each case in accordance with this Agreement,
the DDA, the Applicable Rules and any required environmental mitigation, including engineering
permits, grading permits, foundation permits, construction permits and building permits.
1.1.27 "District" is defined in Section 3.1.1(a).
1.1.28 "Effective Date" means the date that is thirty (30) days after the date of
approval (second reading) by the City Council of the City's ordinance approving this Agreement.
1.1.29 `BIR" means the Final Environmental Impact Statement/Final
Environmental Impact Report for the Disposal and Reuse of MCAS Tustin (Final EIS/EIR) and
Mitigation Monitoring and Reporting Program for the Final EIS/EIR adopted by the City on
January 16, 2001 as subsequently modified by Supplement to the Final EIR/EIS and Addenda to
the Final EIS/EIR approved by the City.
1.1.30 "End User" means any (a) Person owning a Home in fee for use as a
single-family residence; (b) homeowners' association with respect to Common Area conveyed to
such homeowners' association; (c) utility or governmental entity to which a portion of the Property
is transferred or easement granted in connection with and desirable for development of the
Property, and (d) lighting or landscaping district.
1.1.31. "Entitlement Approvals" means (a) all discretionary land use approvals
and entitlements including Specific Plan amendments (if any), tentative and final tract maps, parcel
maps and Design Review approvals as may be applicable for proposed specific uses in connection
with development of the Project on the Property and (b) all conditions of approval legally required
by City as a condition to subdivision of the Property, development of the Property, and
construction of the improvements in accordance with this Agreement. Entitlement Approvals shall
be comprised of the Existing Entitlement Approvals and any Subsequent Entitlement Approvals
approved by the City.
Tustin Brookfield Development Agt 7 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
1.1.32 "Existing Entitlement Approvals" means all Entitlement Approvals
approved or issued prior to the Effective Date and including the following which are a matter of
public record on the Effective Date: (a) Development Agreement approval (2019-00001),
(b) Design Review . approval (Design Review application 2019-00009); (c) the Developer
Tentative Tract Map, and (d) upon approval by the City, the Developer Final Tract Map.
1.1.33 "Existing Land Use Regulations" means the Land Use Regulations in
effect on the Effective Date, including the General Plan, the City Zoning Code, the Specific Plan,
and all other ordinances, resolutions, rules, and regulations of the City governing development and
use of the Property in the form and substance in effect as of the Effective Date.
Section 8.11.2.
1.1.34 "Final Date" is defined in Section 3.13.1(b).
1.1.35 "First Party" is defined in Section 8.11.3.
1.1.36 "Force Majeure Delay" is defined in Section 8.11.1 as limited by
1.1.37 "Future Rules" is defined in Section 3.6.2.
1.1.38 "General Plan" is defined in Recital D.
1.1.39 "Home" or "Homes" means each row townhome, motor court flat and
single-family detached home and related improvements that are to be developed on the Property
in accordance with the Existing Entitlements Approvals and as further defined on the
Condominium Plan to be Recorded for the Property.
1.1.40 "Land Use Regulations" means all laws, statutes, ordinances,
resolutions, codes, orders, rules, regulations and official policies of City governing the
development and use of land, including the permitted uses of the Property, the density or intensity
of use, subdivision requirements, timing and phasing of development, the maximum height and
size of proposed buildings, and the provisions for reservation or dedication of land for public
purposes.
1.1.41 "Non -Defaulting Party" is defined in Section 5.1.
1.1.42 "Party" and "Parties" are defined in the introductory paragraph.
1.1.43 "Phase" means each development and construction phase within the
Property as shown on the Phasing Map attached hereto as Exhibit F and shall exclude phasing of
sales of Homes.
1.1.44 "Phase Improvements" means dry and wet utility extensions; Private
.Drives and Sidewalks; walls and fences within the area between the back of curb and each
residential Building to be constructed within a Phase; capped paving on streets, drives and alleys
adjacent to each Building; landscaping, including all Landscape Improvements not included in the
Tustin Brookfield Development Agt 8 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
Horizontal Improvements; and certain Common Area Improvements, including restrooms and
swimming pools, to be constructed within a Phase area; but Phase Improvements shall exclude the
Horizontal Improvements.
1.1.45 "Plan Check and Inspection Fees" means the portion of the City
Processing Fees incurred by the City with respect to its provision of Plan Check and Inspection
Services for the Project, which shall be billed to Developer by City and paid by Developer to City
in accordance with Section 3.13.102).
1.1.46 "Plan Check and Inspection Services" means the services performed by
City staff and its third -party inspectors, engineers and consultants, if any, to carry out and complete
plan check, perform inspections, and monitor Developer compliance with the Applicable Rules,
as needed for review and issuance of encroachment permits, excavation permits, grading permits,
mechanical, electrical and plumbing permits and building permits requested by Developer in
connection with the Project.
1.1.47 "Prevailing Party" is defined in Section 8.10.
1.1.48 "Project' means the development of the Property contemplated by the
Existing Entitlement Approvals as such Entitlement Approvals may be further defined, enhanced
or modified pursuant to the provisions of this Agreement.
1.1.49. "Project Fair Share Contribution" means the fair share of the Tustin
Legacy Backbone Infrastructure Program to be contributed by Developer with respect to the
Project as further described in the DDA and Section 3.13.3.
1.1.50 "Property" means the real property described on Exhibit A and shown
on Exhibit B to this Agreement, which is proposed to be conveyed by the City to Developer
pursuant to the terms of the DDA.
1.1.51 "Public Access Easement' is defined in Section 3.1.4.
1.1.52 "Public Benefit' and "Public Benefits" means those public benefits to
be provided by the Developer and the Project as described in Section 3.1 that comprise enforceable
additional consideration to City for this Agreement and shall include the Public Benefits
Improvements.
1.1.53 "Public Benefits Improvements" means those improvements listed in
Exhibit C to this Agreement to be constructed by Developer and includes the Publicly Accessible
Common Area Improvements.
1.1.54 "Publicly Accessible Common Area" means within Lot 2 and Lot 10
each as depicted on the City Map, those portions of the Property generally depicted as "Publicly
Accessible Common Area" on Exhibit E upon which Developer shall construct or install the
Publicly Accessible Common Area Improvements, and to which the public shall be provided
access pursuant to an easement on the Recorded Developer Final Tract Map, provided that from
Tustin Brookfield Development Agt 9 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC ---
Development Agreement
and after the Close of Escrow until the Recording of the Developer Final Tract Map, such easement
shall be granted pursuant to the Covenant which shall be Recorded against the Property at the
Close of Escrow.
1.1.55 "Publicly Accessible Common Area Improvements" means the
improvements constructed or to be constructed on the Publicly Accessible Common Area
including landscaping, amenities, and other improvements depicted in the Approved Plans and/or
required by the Entitlement Approvals.
1.1.56 "Record", "Recordation", "Recording" and "Recorded" means to record
the specified instrument, or the current or past recording of the specified instrument, in the official
records of Orange County, California.
1.1.57 "Recordable" means in a form suitable for Recording.
1.1.58 "Reservation of Authority" means the rights and authority excepted
from the assurances and rights provided to Developer under this Agreement and reserved to City
under Section 3.10.
1.1.59 "Second Party" is defined in Section 8.11.3.
1.1.60 "Specific Plan" means the Tustin Legacy Specific Plan as the same has
been or may in the future be amended from time to time.
1.1.61 "State" means the State of California.
1.1.62 "Subsequent Entitlement Approvals" means Entitlement Approvals, if
any, approved by City subsequent to the Effective Date in connection with development of the
Property.
1.1.63 "Successors In Interest' means each and every Person having a legal or
equitable interest in the whole of the Property, or any portion thereof.
1.1.64 "Tax B" means a District tax the proceeds of which shall be used by
City to fund a portion of City essential services, including but not limited to police protection
services, fire protection services, ambulance and paramedic services, recreation program services,
maintenance of City -owned parks, parkways and open space, flood and storm protection and street
and sidewalk maintenance at Tustin Legacy.
1.1.65 "Term" is defined in Section 2.3.
1.1.66 "Tustin City Code" means the municipal code of the City of Tustin.
1.1.67 "Vested Right' means the rights granted to Developer pursuant to this
Agreement upon its acquisition of the Property to develop the Property in accordance with, and
subject to the terms and conditions of this Agreement, the Existing Entitlement Approvals and any
Tustin Brookfield Development Agt 10 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
Subsequent Entitlement Approvals approved by City and made applicable to the Property pursuant
to the terms of this Agreement.
1.1.68 "Water Treatment Area" means Lot A of the Developer Final Tract Map
as depicted as the "Water Treatment Area" on Exhibit H, upon which Developer shall construct or
install the Water Treatment Improvements, and to which the City shall be provided an irrevocable
offer of dedication of fee title on the Recorded Developer Final Tract Map, provided that from and
after the Close of Escrow until the Recording of the Developer Final Tract Map, such offer to
dedicate shall be granted pursuant to the Covenant Recorded against the Property at the Close of
Escrow.
1.1.69 "Water Treatment Improvements" shall mean the stormwater treatment
facilities located within the Water Treatment Area treating the Property and City Streets identified
within the BMP Drainage Management Area Boundary depicted in the approved Water Quality
Management Plan. The facilities shall include, but are not limited to an underground stormwater
detention system and modular wetland units or other stormwater BMPs as approved by the
Director of Public Works and Building Official.. Developer shall install said facilities and shall
maintain or following formation thereof shall cause the Homeowners' Association to maintain, the
Water Treatment Improvements pursuant to the terms of the Landscape and Water Treatment
Installation and Maintenance Agreement, at the sole cost of the Developer or Homeowners'
Association.
1.2. Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit A — Legal Description of the Property
Exhibit B — Map showing Property and its location
Exhibit C — Public Benefits Improvements
Exhibit D — Maximum Tax Burden Schedule
Exhibit E —Depiction of Publicly Accessible Common Area
Exhibit F — Construction Phasing Map
Exhibit G — Boundary Landscape Area
Exhibit H — Water Treatment Area
Exhibit I — Dedications
Exhibit J — Grading Area Plan
Exhibit K — Form of Public Access Covenant and Declaration of Easements and
Dedications and Irrevocable Offer to Dedicate
Tustin Brookfield Development Agt 11 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
2. GENERAL PROVISIONS
2.1. Binding Effect of Agreement. The Property is hereby made subject to this
Agreement, Development of the Property is hereby authorized and shall be carried out only in
accordance with the. terms of this Agreement. This Agreement shall become null and void if the
associated DDA is not approved and executed.
2.2. Interests in Property. City and Developer agree that Developer's right to acquire
the Property pursuant to the DDA creates a sufficient legal and/or equitable interest in order to
enter into this Agreement. If Developer fails to acquire any portion of the Property, then this
Agreement shall automatically no longer be effective as to such portion of the Property
concurrently with the date upon which Developer's rights to acquire such portion of the Property
expire.
2.3. Term. This Agreement shall commence on the Effective Date and unless
terminated, modified, or extended by circumstances set forth in this Agreement or by mutual
written consent of the Parties shall terminate upon the earlier of (a) seventy-eight (78) months from
the Effective Date, or (b) sixty-six (66) months from the Close of Escrow with respect to the
Property pursuant to the DDA ("Term"). Notwithstanding the foregoing, the Term shall be
automatically extended during the term of any Force Majeure Delay, provided that the maximum
extension to the Term as a result of Force Majeure Delay shall be twelve (12) months.
2.4. Assignment,
2.4.1 Assignment and Notification. The rights, interests and obligations
conveyed and provided herein to Developer benefit and are appurtenant to the Property. Developer
has the right to sell, assign and transfer any and all of its rights and interests and to delegate any
and all of its duties and obligations hereunder; provided, however, that such rights and interests
may not be transferred or assigned except in strict compliance with the provisions of Article 2 of
the DDA, which are incorporated herein by this reference as though fully set forth in this
Agreement, and the following conditions:
(a) Developer secures the written consent of City if required pursuant
to Article 2 of the DDA;
(b) Said rights and interests may be transferred or assigned only as an
incident of the transfer or assignment of the portion of the Property to which they relate, including
any transfer or assignment pursuant to a foreclosure of a Mortgage or a deed in lieu of a
foreclosure;
(c) Prior to assignment or transfer, if required pursuant to this
Section 2.4 or Article 2 of the DDA, Developer shall notify City in writing of such assignment or
transfer, the portions of the Property to which the assignment or transfer will be appurtenant, and
the name and address (for purposes of notices hereunder) of the transferee or assignee, together
with the corresponding number of dwelling units and/or non-residential entitlements which are
proposed to be included within such transfer and Developer and the assignee or transferee shall
Tustin Brookfield Development Agt 12 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
notify City whether the assignee or transferee will assume any of Developer's obligations under
this Agreement and which of Developer's obligations will be assumed; and
(d) The assignee or transferee shall have entered into an Assignment
and Assumption Agreement if required by the DDA,
Any attempt to assign or transfer any right or interest in this Agreement except in strict
compliance with this Section 2.4 shall be null and void and of no force and effect.
2.4.2 Subject to Terms of Agteement. Following an assignment or transfer of
any of the rights and interests of Developer set forth in this Agreement in accordance with
Section 2.4.1, the assignee's exercise, use, and enjoyment of the Property shall be subject to the
terms of this Agreement to the same extent as if the assignee or transferee were Developer.
2.4.3 Release of Developer Upon Transfer. Notwithstanding the assignment
or transfer of portions or all of the Property or rights or interests under this Agreement, any
transferor Developer shall continue to be obligated under this Agreement unless released or
partially released by City with respect to Developer's obligations and the other duties and
obligations of Developer under this Agreement, pursuant to this Section, which release or partial
release shall apply only with respect to obligations of Developer following the effective date of
the assignment and shall be provided by City upon the full satisfaction by Developer of the
following conditions:
(a) Developer is not then in default under this Agreement;
(b) City has consented to the assignment or transfer if required under
Section 2.4.1;
(c) The assignment or transfer is not a Transfer to a Developer Affiliate
or other Transfer or Transfer of Control for which the DDA expressly provides that Developer
shall not be released from its obligations under the DDA;
(d) The assignment or transfer is an assignment of all Developer's
interest in the Property, the DDA and this Agreement;
(e) An assignee or transferee has assumed all duties and obligations as
to which Developer is requesting to be released pursuant to an Assignment and Assumption
Agreement approved by City; and
(f) The assignee or transferee is financially able to assume the
obligations proposed for assignment and has demonstrated to the reasonable satisfaction of City
that adequate resources have been committed to the full performance of such obligations.
2.5. Property to Continue to be Subject to This Agreement. In the absence of specific
written agreement by City, pursuant to which City expressly releases the Developer under the
applicable provisions of the DDA or this Agreement, no Transfer shall constitute a release of
Tustin Brookfield Development Agt 13 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
Developer from any of its obligations under this Agreement and the Developer shall retain such
obligations and remain jointly and severally liable for such obligations. City shall cooperate with
Developer, at no cost to City, in executing in Recordable form any document that City has
approved to confirm the termination of this Agreement as to any such portion of the Property.
Notwithstanding the foregoing, the burdens of this Agreement shall terminate as to: (a) any Home
conveyed to a Homebuyer, including any individual residential unit that is sold or leased after
issuance of a certificate of occupancy, (b) any Common Area conveyed to a homeowners'
association, (c) any portion of the Property conveyed or for which an easement is provided to a
utility or governmental entity desirable for development of the Property and/or (d) any portion of
the Property conveyed to any lighting or landscaping district and upon such conveyance or grant
of easement, as applicable, the foregoing Homes and/or portions of the Property affected thereby
shall be automatically released from and shall no longer be subject to this Agreement (without the
execution or Recording of any further document or the taking of any further action).
Notwithstanding the foregoing, upon written request by Developer, the City shall provide a written
instrument evidencing such release in recordable form within ten (10) days following receipt of
such request.
2.6. Amendment or Cancellation of Agreement.
2.6.1 Generally. This Agreement may be amended or cancelled in whole or
in part only in the manner provided for in Government Code Sections 65865.1 or 65868 and Tustin
City Code Section 9615. This provision shall not limit any remedy of City or Developer as
provided by this Agreement. City or Developer may propose an amendment to or cancellation, in
whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent
of the Parties except as provided otherwise in this Agreement, in Government Code
Section 65865.1, or in the Tustin City Code.
2.6.2 Administrative Amendments. Any amendment to this Agreement
which does not relate to the Term, permitted uses of the Project, provisions for the reservaiion or
dedication of land, grant of easement, or the conditions, terms, restrictions and requirements
relating to Subsequent Entitlement Approvals of City, revisions to Public Benefits or Public
Benefits Improvements (other than to the time for performance of such Public Benefits or Public
Benefits Improvements) or monetary exactions of Developer, shall be considered an
"Administrative Amendment". The City Manager or assignee is authorized to execute
Administrative Amendments on behalf of City and no action by the Planning Commission or the
City Council (and no noticed public hearing) shall be required before the Parties may enter into an
Administrative Amendment. However, if in the judgment of the City Manager it is determined
that a proposal is not an Administrative Amendment or that the proposed Administrative
Amendment should be considered by the approval bodies of the City, the City's Planning
Commission shall conduct a noticed public hearing to consider whether the Administrative
Amendment should be approved or denied, and shall make a recommendation to the City Council
on the matter. The City Council shall conduct a noticed public hearing to consider the request and
Tustin Brookfield Development Agt 14 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
the Planning Commission's recommendation on the matter. At the conclusion of the public
hearing, the City Council may approve, deny, or conditionally approve the amendment.
2.6.3 Consent to Amendments. In the case of amendments affecting portions
of the Property, only the consent of the owner of such portion of the Property shall be required so
long as the amendment does not diminish the rights appurtenant to or increase the burdens upon
any other portion of the Property. Any Future Rule applicable pursuant to this Agreement and any
amendment of the Land Use Regulations including to the General Plan, the Specific Plan or City's
zoning ordinance, shall not require amendment of this Agreement. Instead, any such amendment
shall be deemed to be incorporated into this Agreement at the time that such amendment is
approved by the appropriate City decision maker, so long as such amendment is consistent with
this Agreement.
2.6.4 Termination. This Agreement shall be deemed terminated and of no
further effect upon the occurrence of any of the following events:
(a) Expiration of the Term of this Agreement as set forth in Section 2.3;
(b) Entry of a final court judgment not subject to further appeal setting
aside, voiding or annulling the adoption of the City ordinance approving this Agreement;
(c) The adoption of a referendum measure overriding or repealing the
City ordinance approving this Agreement;
(d) Completion of the Project and the Public Benefits Improvements,
Recording of the Developer Final Tract Map, satisfaction of all land dedication requirements, grant
of all easements and grant and/or relinquishment as applicable of all other rights as required to be
granted by Developer on the Developer Final Tract Map pursuant to Exhibit I and performance of
all other Public Benefits in accordance with the terms of this Agreement, the DDA, the Landscape
and Water Treatment Installation and Maintenance Agreement, the Entitlement Approvals, the
Covenant, and the Applicable Rules, including issuance of all required occupancy permits and
acceptance by City or applicable public agency of all required public improvements and
dedications, and City issuance of a DDA Certificate of Compliance;
Article 5; or
(e) Due to termination by City in accordance with Section 4.4 or
(f) Upon mutual written agreement of City and Developer.
In addition, City shall have the right, but not the obligation, to terminate this Agreement as
to the portion of the Property reacquired by it pursuant to the Right of Purchase or the Right of
Reversion under the DDA. Termination of this Agreement shall not constitute termination of any
other Entitlement Approvals for the Property. Upon the termination of this Agreement, no Party
shall have any further right or obligation hereunder except with respect to any obligation to have
been performed prior to such termination or with respect to any default in the performance of the
Tustin Brookfield Development Agt 15 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
provisions of this Agreement which has occurred prior to such termination or with respect to any
obligations which are specifically set forth as surviving this Agreement.
2.7. Notices, Demands and Communications between the Parties. All notices, demands,
consents, requests and other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed conclusively to have been duly given (a) when
hand delivered to the other Party; (b) three (3) Business Days after such notice has been sent by
United States mail via certified mail, return receipt requested, postage prepaid, and addressed to
the other Party as set forth below; or (c) the next Business Day after such notice has been deposited
with a national overnight delivery service reasonably approved by the Parties (Federal Express,
United Parcel Service and U.S. Postal Service are deemed approved by the Parties), postage
prepaid, addressed to the Party to whom notice is being sent as set forth with next Business -Day
delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the
delivery service provider. Unless otherwise provided in writing, all notices hereunder shall be
addressed as follows:
If to City: City of Tustin
Tustin City Hall
300 Centennial Way
Tustin, CA 92780
Attention: City Manager
Email: mwest@tustinca.org
and Attention:
Director of Community Development
Email: ebinsack@tustinca.org
With a copy to: City Attorney, City of Tustin
Woodruff Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
Attention: David E. Kendig, Esq.
Email: dkendig@wss-law.com
If to Developer: Brookfield Homes Southern California LLC
3200 Park Center Drive, Suite 1000
Costa Mesa, California 92626
Attn: Nicole Burdette, Senior Vice President
Email: Nicole.Burdette@brookfieldrp.com
With a copy to: Songstad Randall Coffee & Humphrey LLP
3200 Park Center Drive, Suite 950
Costa Mesa, California 92626
Attn: Timothy L. Randall
Email: trandall@sr-firm.com
Tustin Brookfield Development Agt 16 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
Any Party may by written notice to the other Party in the manner specified in this
Agreement change the address to which notices to such Party shall be delivered.
DEVELOPMENT OF THE PROPERTY
3.1. Public Benefits. This Agreement provides assurances that the Project identified
below will be achieved and developed in accordance with the Applicable Rules and this
Agreement, and subject to City's Reservation of Authority. The Parties believe that such orderly
development of the Project will provide the benefits to the City and additional regional public
benefits including: new housing in immediate adjacency to employment, increased tax revenues,
installation of on-site and off-site improvements, and creation and retention of jobs. In addition
Developer will provide the following additional Public Benefits which constitute specific
additional consideration for this Agreement for the benefit of City:
3.1.1 Community Facilities District.
(a) The City has previously established Community Facilities
District 18-01 with a Tax B component to pay for various essential services at Tustin Legacy
("District"). Prior to Close of Escrow, the City, by action of the City Council, intends to form a
new improvement area of the District (to be denominated CFD 18-01 Improvement Area No. 2)
with respect to the Property and Improvements (and to thereby annex the Property and
Improvements into the District) and to adopt and RMA for Improvement Area No. 2. When the
new improvement area is formed, the District shall impose a tax and lien upon the Property in
accordance with the terms of the instruments governing the District, the RMA and the requirements
of this Agreement. At the time of annexation into the District, the Property and Improvements will
be de -annexed from any other City community facilities districts.
(b) Conditioned upon the Property and Improvements being de -annexed
from any other City community facilities districts, Developer, on behalf of itself and its Successors
In Interest, agrees to the imposition of the District, as described in clause (a) of this Section 3.1.1,
the RMA and the new Tax B, the proceeds of which shall be used by City to fund a portion of City
essential services, including but not limited to police protection services, fire protection services,
ambulance and paramedic services, recreation program services, maintenance of City -owned
parks, parkways and open space, flood and storm protection and street and sidewalk maintenance
at Tustin Legacy. Unless otherwise agreed by the City and Developer, each in its sole discretion,
the following shall apply to any District formed by the City:
(i) The term of the Tax B component or any equivalent
service assessment District imposed upon the Property and the Improvements shall
be perpetual and shall not be time limited in any manner unless determined by the
City in its sole discretion.
(ii) At the Closing Date, the RMA shall establish that
the annual property tax burden on each Home including all general and special taxes
and assessments from any existing assessment district and assessments resulting
Tustin Brookfield Development Agt 17 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
J
from the District shall not exceed the amount shown on the Maximum Tax Burden
Schedule attached as Exhibit D. Thereafter, taxes and assessments imposed
pursuant to any District may be adjusted upward at a rate of not less than two
percent (2%) per year and not more than four percent (4%) per year, subject to and
as further described in the RMA.
(iii) At the sole discretion of the City, the District and
RMA may be structured such that assessments shall be due and payable with respect
to the Property without consideration for whether or not Homes have been
Completed thereon (i.e., such that all Homes shall be assessed as improved or
developed property); provided however, the District assessment on unimproved
land or undeveloped portions of the Property shall be at an undeveloped property
assessment rate of Zero Dollars until a date established by the City, but in no event
earlier than the commencement of the 2020/2021 tax year.
(iv) The City will provide Developer with the
opportunity to review and provide input on all documents and budgets relating to
the formation of the new improvement area, annexation of the Property into the
District and adoption of the RMA (including any funding and acquisition agreement
and the rate and method of allocating the District assessments) at least thirty (30)
calendar days prior to the date on which the formation, annexation and RMA
documents are expected to be submitted for the agenda package related to the
formation of the new improvement area and adoption of the RMA.
(c) The City and Developer agree that any District assessments are
imposed by the City in its Governmental Capacity as a Public Benefit and shall be a tax and lien
upon the Property and the Improvements in accordance with the terms of the instruments
governing the District and the requirements of this Agreement. The agreement of Developer to
imposition of the District on the terms set forth above and the payment of such proceeds to the
City constitutes additional and material consideration to the City under this Agreement. In addition
to the requirements in this Agreement, the establishment of the District and assessments imposed
thereby, and the proceeds of any bonds issued in connection therewith shall be payable to the City
as Public Benefits under this Agreement. In addition to the remedies imposed pursuant to this
Agreement in favor of the City the City shall have the right to withhold building permits with
respect to the Project if Developer fails to timely comply with its obligations with respect to the
District.
(d) Developer acknowledges and agrees that its development plan for
the Project will not require use of community facilities district proceeds and that neither
assessment district nor community facilities district proceeds will be used to reimburse Developer
for its Development Costs, including Project Fair Share Contribution or Project specific
infrastructure costs. Developer, on behalf of itself and its Successors In Interest, waives its right
to fund all or any portion of the development of the Project pursuant to a community facilities
district.
Tustin Brookfield Development Agi 18 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
(e) Developer will not oppose a determination by the City to form the
District, including a determination to subject all or any portion of the Property and the
Improvements thereon to such assessment, provided that the City, the District and such
assessments comply with Section 3.1.1(b).
(f) The City shall not be prohibited by the terms of this Agreement from
subjecting the Property and/or the Improvements thereon to any increase in ad valorem real
property tax pursuant to a City of Tustin -wide election, provided that nothing herein shall be
construed to constitute a waiver by Developer of its right or ability to dispute or oppose passage
of a City of Tustin -wide bond, the proposed formation of any special district or taxing authority in
connection therewith, or the imposition of any such tax, or its right to dispute any portion of the
Property's assessed value.
3.1.2 Developer shall pay the Project Fair Share Contribution to the City as
and when described in Section 3.13.3.
3.1.3 Developer shall complete the Public Benefits Improvements listed on
Exhibit C within the time periods set forth in the Schedule of Performance attached to the DDA.
3.1.4 Within the time period set forth in the Schedule of Performance,
Developer shall construct upon the Publicly Accessible Common Area the Publicly Accessible
Common Area Improvements. At the Close of Escrow or pursuant to Recording of the Developer
Final Tract Map, whichever is earlier, there shall be Recorded against the Property a non-exclusive
perpetual easement in gross for public access in, over, along, through, upon and across the Publicly
Accessible Common Area and the Publicly Accessible Common Area Improvements, and to and
from the adjoining public streets and sidewalks ("Public Access Easement") in form and substance
approved by the City in its sole discretion, binding upon Developer and its successors and assigns
owning all or any portion of the Property, including End Users, for the benefit of the City and its
successors and assigns and its permittees, including the general public, subject to reasonable rules
and regulations established in the CC&Rs. Developer shall maintain, or following formation
thereof shall cause the Homeowners' Association to maintain, the Publicly Accessible Common
Area and the Publicly Accessible Common Area Improvements at the sole cost of the Developer
or Homeowners' Association, as applicable, and such obligation shall be set forth in the CC&Rs
for the Project. Prior and as a condition to issuance of the first certificate of occupancy for the
Property, the City shall have the right to review and approve the CC&Rs. To the extent that the
Developer Final Tract Map has not been Recorded prior to the Close of Escrow for the Property
pursuant to the DDA, Developer shall Record a covenant, in the form and substance of the "Public
Access Covenant and Declaration of Easements, Dedications and Irrevocable Offer to Dedicate"
attached hereto as Exhibit K or in such other form acceptable to the City in its sole discretion, for
the benefit of the City and its successors and assigns ("Covenant"), which Covenant shall be
Recorded against the Property at the Close of Escrow. The Covenant shall include a declaration
of the public access and a grant of easements, dedications, irrevocable offer to dedicate and
releases with respect to all matters specified on Exhibit I in form and substance approved by the
City in its sole discretion. As further described in the Covenant, the Recorded easements for the
Publicly Accessible Common Area shall be memorialized on the Developer Final Tract Map in
Tustin Brookfield Development Agt 19 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
order to provide public access in, on, over, across and through the Publicly Accessible Common
Area and rights of the public to use the Publicly Accessible Common Area and the Publicly
Accessible Common Area Improvements.
3.1.5 Concurrently with construction of the Model phase of the Project,
Developer shall construct upon the Water Treatment Area the Water Treatment Improvements or
such alternative improvements as may be approved by the Director of Public Works. At the Close
of Escrow or pursuant to Recording of the Developer Final Tract Map, whichever is earlier, there
shall be Recorded against the Property an irrevocable offer of dedication in form and substance
approved by the City in its sole discretion, with respect to the Water Treatment Area binding upon
Developer and its successors and assigns owning all or any portion of the Property, including End
Users, for the benefit of the City and its successors and assigns and its permittees. Developer shall
maintain, or following formation thereof shall cause the Homeowners' Association to maintain,
the Water Treatment Area and the Water Treatment Improvements pursuant to the terms of the
Landscape and Water Treatment Installation and Maintenance Agreement, at the sole cost of the
Developer or Homeowners' Association, as applicable, and such obligation shall be set forth in
the CC&Rs for the Project. To the extent that the Developer Final Tract Map has not been
Recorded prior to the Close of Escrow for the Property pursuant to the DDA, Developer shall
Record the Covenant against the Property at the Close of Escrow thereby granting an irrevocable
offer to dedicate fee title to the City for the Water Treatment Area and Water Treatment
Improvements, as more specifically set forth in the Covenant. As further described in the
Covenant, the Recorded offer to dedicate for the Water Treatment Area shall be memorialized on
the Developer Final Tract Map.
i� 3.1.6 Developer shall assure through the provision of bonds, guarantees, cash
collateral, or other instruments the lien -free completion of (a) all landscaping and irrigation
improvements listed on Exhibit C within the time period set forth in the Schedule of Performance,
and (b) the Water Treatment Improvements upon the Water Treatment Area, prior to the earlier of
(i) opening of the Models for viewing by the public, (ii) upon final cap pave of the first (any) of
the City Streets (such that the first (any) of the City Streets is ready to open to travel) or
(iii) certificate of occupancy for the first Model. At the Close of Escrow, Developer shall enter
into a Landscape and Water Treatment Installation and Maintenance Agreement with the City of
Tustin for the construction, maintenance, repair, and replacement of (A) the Landscape
Improvements within the Boundary Landscape Area identified in Exhibit G and within the
Publicly Accessible Common Area identified on Exhibit E and (B) the Water Treatment
Improvements upon the Water Treatment Area and shall comply with the requirements of that
Agreement.
3.1.7 Notwithstanding anything to the contrary in this Agreement, if any
payment under this Section 3.1 is not made or any obligation requiring performance is not
performed by Developer, the City may withhold further issuance of building permits and other
approvals, including final maps, for the Project until such time as Developer has made the required
payment or undertaken the required performance.
3.2. Developer Objectives. In accordance with the legislative findings set forth in
Tustin Brookfield Development Agt 20 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
Government Code Section 65864, the Developer wishes to obtain reasonable assurances that the
Project may be developed in accordance with the Applicable Rules and Existing Entitlement
Approvals and with the terms of this Agreement and subject to City's Reservation of Authority.
To the extent of Project development, and as provided by Section 3.5.2, Developer anticipates
making capital expenditures or causing capital expenditures to be made in reliance upon the DDA
and this Agreement. In the absence of this Agreement, Developer would have no assurance that it
can complete the Project for the uses and to the density anal intensity of development set forth in
this Agreement and the Existing Entitlement Approvals. This Agreement, therefore, is necessary
to assure Developer that the .Project will not be (a) reduced or otherwise modified in density,
intensity or use from what is set forth in the Existing Entitlement Approvals; or (b) subjected to
new rules, regulations, ordinances or official policies or plans except for Future Rules made
applicable pursuant to the terms of this Agreement.
3.3. Mutual Objectives, Development of the Project in accordance with this
Development Agreement will provide for the orderly development of the Property in accordance
with the objectives set forth in the General Plan. Moreover, a development agreement for the
Project will eliminate uncertainty in planning for and securing orderly development of the
Property, assure installation of necessary improvements, assure attainment of maximum efficient
resource utilization within the City at the least economic cost to its citizens and otherwise achieve
the goals and purposes established by Government Code Section 65864. Additionally, although
development of the Project in accordance with this Agreement will constrain the City's land use
or other relevant police powers, this Agreement provides City with sufficient reserved powers
during the Term to remain responsible and accountable to its residents. In exchange for these and
other benefits to City, the Developer will receive assurance that the Project may be developed
during the Term in accordance with the Applicable Rules, Entitlement Approvals and Reservation
of Authority, subject to the terms and conditions of this Agreement.
3.4. Applicability of the Agreement. This Agreement does not: (a) grant density or
intensity in excess of that otherwise established in the Existing Entitlement Approvals;
(b) eliminate future discretionary actions relating to the Project that are either required by the
Applicable Rules or requested by Developer pursuant to applications initiated and submitted by
Developer after the Effective Date; (c) guarantee that Developer will receive any profits from the
Project; (d) amend the DDA, the Specific Plan or the General Plan; (e) except as specifically set
forth in Section 3.6.2 and 3. 10, protect the Developer, the Project or the Property from the
applicability of any Future Rules (i) imposed pursuant to City's Reservation of Authority or
(ii) adopted by the City and not in conflict (as defined in Section 3.6.2) with Existing Land Use
Regulations; or (f) protect the Developer, the Project or the Property from the applicability of any
increases in development fees or City Processing Fees.
3.5. Agreement and Assurance on the Part of the Developer. In consideration for City
entering into this Agreement, and as an inducement for City to obligate itself to carry out the
covenants and conditions set forth in this Agreement, and in order to effectuate the premises,
purposes and intentions set forth in this Agreement, Developer hereby agrees as follows:
3.5.1 Project Development. Developer agrees that it will use commercially
Tustin Brookfield Development Agt 21 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
reasonable efforts,'in accordance with its own business judgment and taking into account market
conditions and economic considerations, to undertake any development of the Project in
accordance with the terms and conditions of the DDA, this Agreement and the Existing Entitlement
Approvals.
3.5.2 Additional Obligations of Develoler as Consideration for this
Agreement. In addition to the obligations identified in Section 3.1, the development assurances
provided by this Agreement and the resulting construction of the Project will result in the
following:
(a) Construction of a four hundred (400) unit for -sale residential
condominium complex upon the Property, containing approximately one hundred seventeen (117)
detached and two hundred eighty-three (283) attached units, consistent with this Agreement, the
Applicable Rules, the Entitlement Approvals and the DDA, including in accordance with the
Schedule of Performance.
(b) Construction of all Improvements identified in the DDA in
accordance with the Schedule of Performance.
(c) Completion of all Public Benefits Improvements identified on
Exhibit C in accordance with the Schedule of Performance and this Agreement.
(d) Compliance with the DDA, the Applicable Rules and Entitlement
Approvals, state and federal law, all mitigation measures, including measures imposed pursuant to
CEQA, all Development Permits and all conditions of approval associated with the foregoing.
(e) Payment of all required development related fees as set forth in the
DDA and this Agreement.
3.6. Agreement and Assurances on the Part of City. In consideration for Developer
entering into this Agreement, and as an inducement for Developer to obligate itself to carry out
the covenants and conditions set forth in this Agreement, and in order to effectuate the purpose of
this Agreement, City hereby agrees as follows:
3.6.1 Applicable Regulations; Vested Right to Develop. To the maximum
extent permitted by law, Developer has the vested right for the Term to develop the Project subject
to the terms and conditions of the DDA, this Agreement, the Applicable Rules, state and federal
law, and the Existing Entitlement Approvals and any Subsequent Entitlement Approvals approved
by City, in each case subject to City's Reservation of Authority. Other than as expressly set forth
herein, during the Term, the terms and conditions of development applicable to the Property,
including the permitted uses of the Property, the density and intensity of use, maximum height and
size of proposed buildings, the design, improvement and construction standards and specifications
applicable to the development of the Property, including any changes authorized pursuant to
Section 3.6.2, and the provisions for the reservation and dedication of land as needed for public
purposes pursuant to Governmental Requirements, shall be those set forth in this Agreement, the
Tustin Brookfield Development Agt 22 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
DDA, the Applicable Rules, and the Entitlement Approvals. In connection therewith and subject
to the terms of this Agreement including the Reservation of Authority, Developer shall have the
Vested Rights to carry out and develop the Property in accordance with the Applicable Rules and
the Entitlement Approvals and the provisions of this Agreement.
3.6.2 Changes Authorized by City. To the extent any changes in the Existing
Land Use Regulations, or any provisions of future General Plans, Specific Plans, Zoning
Ordinances or other rules, regulations, ordinances or policies of City (whether adopted by means
of ordinance, initiative, referenda, resolution, policy, order, moratorium, or other means, adopted
by the City Council, Planning Commission, or any other board, commission, agency, committee,
or department of City, or any officer or employee thereof) following the Effective Date
(collectively, "Future Rules") are not in conflict with the Vested Rights, such Future Rules shall
be applicable to the Project. For purposes of this Section 3.6.2, the word "conflict" means Future
Rules that would (a) frustrate in a more than insignificant way the intent or purpose of the
Applicable Rules in relation to the Project; (b) materially increase the cost of performance of, or
preclude compliance with, any provision of the Vested Right; (c) delay in a more than insignificant
way development of the Project; (d) limit or restrict the availability of public utilities, services,
infrastructure of facilities (for example, but not by way of limitation, water rights, water connection
or sewage capacity rights, sewer connections, etc.) to the Project; or (e) impose limits or controls
in the rate, timing, phasing or sequencing of development of the Project.
Notwithstanding the foregoing, a Future Rule that conflicts with the Applicable Rules shall
nonetheless apply to the Property if, and only if one of the following apply: (i) it is consented to
in writing by Developer; (ii) it is determined by City and evidenced through findings adopted by
the City Council that the change or provision is reasonably required in order to prevent a condition
dangerous to the public health or safety as set forth in Section 3.10.3; (iii) required by changes in
State or Federal law as set forth in Section 3.10.2; (iv) it consists of revisions to, or new building
regulations permitted by Section 3.10.4; or (v) it is otherwise expressly permitted by this
Agreement.
3.6.3 Availability of Public Services. To the maximum extent permitted by
law and consistent with its authority, City shall use commercially reasonable efforts to assist
Developer in reserving such capacity for sewer and water services as may be necessary to serve.
the Project, at no cost or expense to City.
3.6.4 Allocation of Development Rights under Specific Plan. City hereby
acknowledges that it has allocated to the Property and reserved for development of the Project a
total of four hundred (400) residential units from the total Specific Plan Neighborhood D Planning
Area 8, 13 and 14 authorization; provided that the total number of residential unit development
rights actually allocated to the Property shall be equal to four hundred (400) residential units or
such lesser number of units as are described on the Recorded Condominium Plans and actually
constructed by Developer prior to issuance of the Certificate of Compliance, and, except to the
extent any of such rights were conveyed by the City to third parties prior to the Effective Date, the
City shall retain all residential units and all development rights associated with Specific Plan
Neighborhood D, Planning Areas 8, 13 and 14 above the number of units shown on the Recorded
Tustin Brookfield Development Agt 23 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
Condominium Plans and constructed prior to the issuance of the Certificate of Compliance, and
the units and development rights retained by the City shall be freely transferable by the City
throughout Tustin Legacy.
3.7. Effect of Agreement on Land Use Regulations. Except as otherwise provided under
the terms of this Agreement including the Reservation of Authority (and notwithstanding any
future action of City or its citizens, whether by ordinance, resolution, initiative or otherwise), the
rules, regulations, and official policies governing the Project, including the permitted uses of the
Property, the density and intensity of use of the Property, the maximum height and size of proposed
buildings, the design, improvement and construction standards and specifications applicable to the
Project, including any changes authorized pursuant to Section 3.6.2, the subdivision of land and
requirements for infrastructure and public improvements, and other terms and conditions of the
Project, shall be the Applicable Rules and the provisions of this Agreement. City shall accept for
processing and review and take action on all applications for Subsequent Entitlement Approvals
as provided in Section 3.9. In connection with any Subsequent Entitlement Approval, City shall
exercise discretion in the same manner as it exercises its discretion under its police powers,
including the Reservation of Authority; provided however, that such discretion shall not prevent
development of the Project as set forth in this Agreement.
3.8. Timing_of Development. The timing of development will be as set forth in the
DDA. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo
(1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development
resulted in a later adopted initiative restricting the timing of development to prevail over such
parties' agreement, it is the Parties' intent to cure that deficiency by acknowledging and providing
that Developer will adhere to the terms of the DDA regarding the timing of development.
3.9. Subsequent Entitlement Approvals, Changes and Amendments. The Parties
acknowledge that refinement and further development of the Project may require Subsequent
Entitlement Approvals and may demonstrate that changes are appropriate and desirable in the
Existing Entitlement Approvals. Entitlement Approvals (except for this Agreement, the
amendment process for which is set forth in Section 2.6) may be amended or modified from time
to time, but only at the written request of Developer or with the written consent of Developer (in
its sole and absolute discretion). All amendments to the Entitlement Approvals shall automatically
become part of the Applicable Rules. In the event Developer finds that a change in the Existing.
Entitlement Approvals is necessary or appropriate, Developer shall apply for a Subsequent
Entitlement Approval to effectuate such change and City shall process and act on such application
in accordance with the Applicable Rules, except as otherwise provided by this Agreement,
including the Reservation of Authority. If approved, any such change in the Existing Entitlement
Approvals shall thereafter be deemed to be an Existing Entitlement Approval and a Vested Right
for all purposes of this Agreement without requiring an amendment to this Agreement and may be
further changed from time to time as provided in this Section.
3.10. Reservation of Authoritv. Notwithstanding any other provision of this Agreement
to the contrary, the Future Rules described in this Section 3.10 shall apply to and govern
development of the Property and Project to the extent set forth herein.
Tustin Brookfield Development Agt 24 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL, Homes Southern California LLC
Development Agreement
3.10.1 Consistent Future City Regulations. Future Rules shall apply to and
govern development of the Property, provided that any Future Rules which reduce the density or
intensity of the Project below that permitted by the Existing Land Use Regulations or the Existing
Entitlement Approvals, alter the permitted uses of the Property, reduce the maximum height or
size of any permitted buildings, impose additional obligations in connection with the reservation
or dedication of land for public purposes beyond the requirements identified in this Agreement,
the DDA, the Covenant, the Landscape and Water Treatment Installation and Maintenance
Agreement, the Entitlement Approvals, the Applicable Rules, or limit the rate, timing, or
sequencing of development of the Property from that required in this Agreement, the DDA or in
any Entitlement Approvals, shall be deemed, inconsistent with this Agreement and shall not be
applicable to the development of the Property and Project.
3.10.2 Overriding State and Federal Laws. City shall not be precluded from
adopting and applying Future Rules to the Property and the development of the Project to the extent
that such Future Rules are required to be applied by State or Federal laws or regulations even if
such Future Rules would override Developer's Vested Rights as set forth in this Agreement,
provided however, that (a) Developer does not waive its right to challenge or contest the validity
of such State or Federal rules or regulations; and (b) such Future Rules, if in conflict with the
Vested Rights (as defined in Section 3.6.2), shall only be applied to the Project and development
of the Project to the extent necessary to comply with such new State or Federal law or regulation.
In the event that such State or Federal law or regulation (or Future Rules undertaken pursuant
thereto) prevents or precludes substantial compliance with one or more provisions of the Existing
Land Use Regulations or this Agreement, the Parties agree to consider in good faith amending or
suspending such provisions of this Agreement as may be necessary to comply with such State or
Federal laws (or Future Rules), provided that no Party shall be bound to approve any amendment
to this Agreement unless this Agreement is amended in accordance with the procedures applicable
to the adoption of development agreements as set forth in the Development Agreement Statute and
Tustin City Code and each Party retains full discretion with respect thereto.
3.10.3 Public Health and Safety. Nothing in this Agreement shall preclude the
City Council from adopting and applying Future Rules that the City Council finds are reasonably
necessary to protect persons on the Property or in the immediate community, or both, from
conditions dangerous to their health or safety notwithstanding that the applications of such Future
Rules, or other similar limitation would result in the impairment of Developer's Vested Rights
under the Agreement or the Existing Land Use Regulations. In determining whether any such
Future Rules are reasonably necessary to protect persons as set forth above, the City Council shall
make findings, based on evidence presented to and accepted by the City Council that the changes
are reasonably necessary to protect the public health or safety. The provisions of this
Section 3.10.3 do not apply to any measure adopted by initiative or referendum.
1
3.10.4 Uniform Construction Codes and Regulations. Policies and rules
governing engineering and construction standards and specifications applicable to public and
Tustin Brookfield Development Agt 25 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
private improvements, including all uniform codes adopted by City and any local amendments to
those codes adopted by City in the future shall apply to the Project and Property.
3.10.5 Police Power. In all respects not provided for in this Agreement, City
shall retain full rights to exercise its police powers to regulate development of the Project and
Property. Any uses or development requiring specific plan amendment, design review, a tentative
tract map, a conditional use permit, a variance, or other Entitlement Approvals in accordance with
Existing Land Use Regulations shall require a permit or approval pursuant to this Agreement and
notwithstanding any other provision set forth herein, this Agreement is not intended to vest
Developer's right to issuance of such permit or approval.
3.11. Processing.
3.11.1 Subdivisions. A subdivision, as defined in Government Code
Section 66473.7, shall not be approved unless a tentative map for the subdivision complies with
the provisions of said Section 66473.7. This provision is included in this Agreement to comply
with Section 65867.5 of the Government Code.
3.11.2 Subsequent Entitlement Approvals. City shall employ all lawful actions
capable of being undertaken by City to promptly (a) accept all complete applications for
Subsequent Entitlement Approvals (collectively, "Applications") and (b) process and take action
upon Applications in accordance with the Applicable Rules with a goal of completing the review
within time frames identified in the DDA; provided however, that City shall not be deemed in
default under this Agreement should such time frame(s) not be met. To the extent that Developer
desires that City plan check or process an Application on an expedited basis and to the extent that
it requires an additional expense beyond the customary expense applicable to the general public,
City shall inform Developer of such additional expense, including the cost of overtime and private
consultants and other third parties. If acceptable to Developer, Developer shall pay the additional
cost and City shall use good faith efforts to accelerate the processing time utilizing overtime and
the services of private consultants and third parties to the extent available. Upon the written
request of Developer, City shall inform Developer of the necessary application requirements for
any requested City approval or requirement relating to the Project. At such time as a Subsequent
Entitlement Approval applicable to the Property is approved by City, then such Subsequent
Entitlement Approval shall become subject to all of the terms and conditions of this Development
Agreement and shall be treated as an "Entitlement Approval" under this Development Agreement.
3.11.3 Filings. Developer shall exercise reasonable efforts to file applications
for Development Permits and Entitlement Approvals within the time frames and schedules as
generally outlined in the DDA and shall exercise reasonable efforts to attempt to obtain
Development Permits and Entitlement Approvals within the time frames identified in the DDA;
provided, however, that failure solely to comply with such time frame(s) shall not be deemed to
be a default under this Agreement.
3.11.4 Cooperation. City and Developer shall cooperate in processing all
applications for permits and approvals for the Project, provided, however, that such cooperation
Tustin Brookfield Development Agt 26 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
shall not include any obligation of City to incur any un -reimbursed expense, and City shall be
entitled, subject to the terms of this Agreement, the DDA and Developer's rights hereunder, to
exercise all discretion to which it is entitled by law in processing and issuing any permits and
approvals for the Project.
3.11.5 Approvals. Notwithstanding any administrative or judicial proceedings,
initiative or referendum concerning any of the Entitlement Approvals, City shall process
applications for permits and approvals as provided herein to the fullest extent allowed by law and
Developer may proceed at its sole risk with development of the Project pursuant to the DDA the
Applicable Rules and Entitlement Approvals to the fullest extent allowed by law.
3.12. CEQA. This Agreement does not modify, alter or change the City's obligations
pursuant to CEQA. Developer acknowledges that City is required by State law to comply with
CEQA in the consideration and approval of any Subsequent Entitlement Approval and/or any
amendment to this Agreement. The EIR, which has been certified by City as being in compliance
with CEQA, addresses the potential environmental impacts of the entire Project as it is described
in the Existing Entitlement Approvals. Nothing in this Agreement shall require or be construed to
require CEQA review of ministerial approvals. It is agreed that, in acting on any discretionary
Subsequent Entitlement Approvals for the Project, City shall rely on the EIR to satisfy the
requirements of CEQA to the extent permissible by CEQA. In the event that any additional CEQA
documentation is legally required for any discretionary Subsequent Entitlement Approval for the
Project, then the scope of such documentation shall be focused, to the extent possible consistent
with CEQA, on the specific subject matter of the Subsequent Entitlement Approval and City shall
conduct such CEQA review as expeditiously as possible, at Developer's expense. Nothing herein
shall restrict or limit the obligation of Developer to pay for and implement any additional
mitigation measures or conditions of approval imposed as a result of such CEQA and any
Subsequent Entitlement Approval process.
3.13. Fees.
3.13.1 Processing Fees and Charges.
(a) The City shall have the right to charge and Developer shall be
required to pay all City Processing Fees for the Project. Except as otherwise specifically set forth
in Section 3.13.1(b), such City Processing Fees shall be paid in accordance with the procedures
and at the generally applicable rates in effect at the time such City Processing Fees are due.
(b) With respect to Plan Check and Inspection Services only, the City
shall be entitled to charge and Developer shall reimburse the City for its costs to make available
City staff, including the City Attorney, and third -party engineers and consultants, if any, as
required to complete, process, and review plans and applications, complete plan check, perform
inspections, and monitor Developer compliance with the requirements of this Agreement and the
Applicable Rules. Not later than ten (10) Business Days following approval by the City of this
Agreement, and as a condition to the effectiveness of this Agreement, Developer shall deliver to
the City in cash or cash equivalent funds, a deposit in an amount reasonably requested by City
Tustin Brookfield Development Agt 27 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern Califomia LLC
. Development Agreement
which shall be based on the City's estimate of staff and third -party consultant time required to
complete and perform plan check and inspections (the "City Costs Deposit"). The City Costs
Deposit shall be deposited by the City in an account in a bank or trust company selected by the
City 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 latest to occur of (i) issuance of the final Certificate of Compliance for the
Property; (ii) the issuance of the final certificate of occupancy for a Building on the Property; or
(iii) termination of the DDA (the "Final Date"), the amount of funds in the City Costs Deposit
account is depleted below Ten Thousand Dollars ($10,000), then 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 Plan Check and
Inspection Fees, 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 reduce the amount
of Plan Check and Inspection Fees incurred by the City. The City Costs Deposit has been
established to fund the Plan Check and Inspection Fees incurred by the City and may be used by
the City for such purpose, and shall be depleted accordingly. Immediately upon incurring any Plan
Check and Inspection 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.
A monthly accounting of deductions documenting staff time spent to process and review plans and
applications, complete plan check, perform inspections, and monitor Developer compliance, along
with documentation evidencing any other deductions from the City Costs Deposit shall be provided
by City to Developer. The City Costs Deposit shall be retained by the City until the Final Date
specified above and the remaining amount of the City Costs Deposit then held by the City, if any,
shall be returned promptly by the City to Developer, 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 the Final Date. Developer shall pay any outstanding amounts due with respect to the 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.
3.13.2 Development Fees. City shall have the right to impose, and Developer
shall pay, all development fees adopted by City at the time of issuance of building permits for the
Project.
3.13.3 Project Fair Share Contribution. The Project Fair Share Contribution
(relating to the Tustin Legacy Backbone Infrastructure Program) to be contributed by Developer
with respect to the Project shall be Eight Million Thirteen Thousand Two Hundred Eighteen
Dollars and Forty Cents ($8,013,218.40) which is equal to Three Hundred Fourteen Thousand
Nine Hundred Eighty -Five Dollars ($314,985.00) per acre of land conveyed to Developer by the
City. Such amount shall be paid at the Close of Escrow under the DDA and shall be in addition to
the Base Purchase Price for the Property pursuant to the DDA.
3.14. Dedications and Easements. Developer acknowledges and agrees that it is required
(and will be required) (a) to make an irrevocable offer of dedication to the City of a fee interest in
Tustin Brookfield Development Agt 28 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
and to Lot A of the Developer Final Tract Map corresponding to the Water Treatment Area and
the Water Treatment Improvements as further described in Section 3.15, and (b) to dedicate to the
City and other public agencies on the approved Developer Final Tract Map (and if the Developer
Final Tract Map has not been Recorded at or prior to the Close of Escrow, in the Covenant which
shall be Recorded against the Property at the Close of Escrow), or in conjunction with Entitlement
Approvals, certain required dedications more particularly set forth on Exhibit I and such additional
dedications as may be required by this Agreement, the DDA, the Landscape and Water Treatment
Installation and Maintenance Agreement, the Entitlement Approvals, the Covenant and the
Applicable Rules, and pursuant to the EIR and as required pursuant to Developer's assumption of
City MCAS Tustin obligations under the "Agreement Between the City of Irvine and the City of
Tustin Regarding the Implementation, Timing, Funding of Transportation/ Circulation Mitigation
for the MCAS Tustin Project" and (b) to grant those easements required by the DDA, the
Landscape and Water Treatment Installation and Maintenance Agreement and/or the Applicable
Rules.
3.15. Regulation by Other Public Agencies. It is acknowledged by the Parties that other
public agencies not within the control of City, including IRWD, the Tustin Unified School District,
and the Santa Ana Unified School District, possess authority to regulate aspects of the Project and
development of the Property separately from or jointly with City and this Agreement does not limit
the authority of such other public agencies. City agrees to cooperate fully, at no out of pocket cost
to City, with Developer in obtaining any required permits or compliance with the regulations of
other public agencies provided such cooperation is not in conflict with any laws, regulations or:
policies of City.
3.16. Tentative Tract Map Extension. Any subdivision map, heretofore or hereafter
approved in connection with development of the Property, shall be eligible for extensions of time
as provided in Government Code Section 66452.6, except that any extension shall be consistent
with any applicable performance schedule as provided or established in the DDA and shall not be
deemed or considered in any way an extension of any Developer rights or obligations under the
DDA.
3.17, Certain Restrictions on Building Permit Issuance: Recording of Developer Final
Tract Man. Development of the Project will require approval by City of the Developer Final Tract
Map. Developer acknowledges and agrees that City will not issue a building permit for any
Homes, other than model Homes, until such time as (a) the Developer Final Tract Map has been
approved by City and Recorded and (b) City and Developer have entered into a Subdivision
Improvement Agreement in form approved by City in its Governmental Capacity.
3.18. No Quimby Act Fees or Park Fees. Except as set forth in this Agreement, or
required by the Entitlement Approvals, all fees and/or dedications required in connection with the
Project pursuant to the Quimby Act, California Government Code Section 66477, are included
within the Project Fair Share Contribution and Developer shall not have any additional liability on
account thereof,
Tustin Brookfield Development Agt 29 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
3.19. Compliance with Legal Requirements. Prior to the issuance of any certificate of
occupancy for any Home within a Phase, Developer shall satisfy all applicable requirements of the
Tustin Municipal Code, Specific Plan, and conditions of approval of the Entitlement Approvals
relating to or necessary for such Home prior to the issuance of a certificate of occupancy for such
Home, including compliance with the Americans with Disabilities Act and necessary Horizontal
Improvements, including Common Area Improvements, to support such Home.
3.20. Phase Improvements. The Project is currently anticipated to be implemented in
forty-eight (48) Phases as depicted on Exhibit F. Developer shall construct the Phase
Improvements in accordance with the terms of the DDA, including the Schedule of Performance
and the Scope of Development set forth in the DDA, the Approved Plans, the Specific Plan, the
Developer Tentative Tract Map, the Developer Final Tract Map, the Entitlement conditions,
Development Permits any other Governmental Requirements and this Agreement. The Phase
Improvements, generally comprising those infrastructure improvements and Common Area
Improvements, including the Publicly Accessible Common Area Improvements, to be constructed
within the Phase areas as depicted on the Phasing Map attached hereto as Exhibit F, shall be
constructed sequentially by Phase. For each Phase, Developer shall commence with the
components of the Phase Improvements. Prior to commencement of construction of the Vertical
Improvements on each Block (as defined below), Developer shall have commenced construction
of the "mainline" in -tract utilities and private roads and alleys within said Block, but may connect
to each Home or Building, as applicable, upon commencement of vertical construction of such
Home or Building. All "mainline" in -tract utilities and private roads and alleys within a given
Block shall be completed prior to issuance of the first Certificate of Occupancy for said Block. In
addition, utilities hookups for each Building may be commenced at the commencement of vertical
construction of each Building and shall in all events be completed prior and as a condition to
issuance of a certificate of occupancy for the first Home in such Building and the alleys and motor
courts will be completed prior and as a condition to issuance of the first certificate of occupancy
for a Building to which access is provided from such alley or motor court. Notwithstanding the
foregoing, the swimming pool and restrooms and pedestrian access and landscaping related to such
facilities shall be completed on or before January 31, 2022. Each Phase shall be commenced and
Completed in accordance with the Inventory Commitment/Schedule of Performance and upon
Completion thereof, each Phase shall comply with all Governmental Requirements, including all
Specific Plan requirements and Entitlement conditions of approval for development on the
Development Property, without reliance upon Improvements to be constructed in future Phases.
The term "Block" means each of Lots 2, 5, 6, 7, 8, 9, and 10 as depicted on the City Map.
4. ANNUAL REVIEW
4.1. Timing and Annual Review. The City Council shall review Developer's
performance under this Agreement at least every twelve (12) months from the Effective Date until
expiration of the Agreement. In connection with such review, both City and Developer shall have
a reasonable opportunity to assert matters which either believes have not been undertaken in
accordance with this Agreement, to explain the basis for such assertion, and to receive from the
other Party a justification of its position on such matters.
Tustin Brookfield Development Agt 30 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
4.2. Review Procedure. City shall provide notice to Developer and deliver to Developer
a copy of all public staff reports, documents and related exhibits concerning City's review of
Developer's performance hereunder at least thirty (30) calendar days prior to any date proposed
for City Council review of performance under the Agreement.
4.3. Good Faith Compliance. Developer shall demonstrate good faith compliance with
the terms of this Agreement and shall furnish evidence of good faith compliance, as City, in its
reasonable exercise of its discretion, may require. Evidence of good faith compliance may include
the following:
(a) conformance with the DDA including the Scope of Development and
Schedule of Performance;
(b) conformance with the requirements of the Specific Plan; and
(c) conformance with provisions of this Agreement identified by City.
4.3.2 Response. Developer shall have the opportunity to be heard and
respond to City's evaluation of Developer's performance, either orally or in a written statement,
at Developer's election.
4.3.3 Non -Compliance. If, as a result of its periodic review as described in
Section 4. 1, the City Council finds and determines, on the basis of substantial evidence, that the
Developer has not complied in good faith with the terms or conditions of this Agreement, the City
Council may commence proceedings to enforce, modify, or terminate this Agreement.
4.3.4 Referral. The City Council may refer the matter to the Planning
Commission for further proceedings or for a report and recommendation.
4.4. Modification or Termination. If the City Council determines to proceed with
modification or termination of this Agreement, the City Council shall give notice to Developer of
its intention to do so. The Notice shall contain all information required by Tustin City Code
Section 9618. At the time and place set for the hearing on modification or termination, the City
Council may refer the matter back to the Planning Commission for further proceedings or for a
report and recommendation. The City Council may take such action as it deems necessary to
protect the interests of City, including the receipt of additional evidence as to Developer's
compliance with the terms of this Agreement. The decision of the City Council shall be final,
subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b).
4.5. Certificate of Agreement Compliance. If, at the conclusion of a periodic review,
Developer is found to be in compliance with this Agreement, City shall, upon request of the
Developer, issue a Certificate (the "Certificate") to Developer stating that after the most recent
periodic review and based upon the information known or made known to the City Council that:
(a) this Agreement remains in effect, and (b) Developer is not in default. The Certificate shall be
in Recordable form, shall contain information necessary to communicate constructive record
Tustin Brookfield Development Agt 31 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
notice of the finding of compliance, and shall state the anticipated date of commencement of the
next periodic review. Developer may Record the Certificate with the County Recorder. If City
does not find Developer to be in compliance with this Agreement, it shall not be obligated to issue
the Certificate.
5. DEFAULT, REMEDIES. AND TERMINATION
S.I. Default Procedure. A non -defaulting Party (the "Non -Defaulting Party") at its
discretion may elect to declare a default under this Agreement in accordance with the procedures
hereinafter set forth for any failure or breach of any other Party ("Defaulting Party") to perform
any material duty or obligation of said Defaulting Party in accordance with the terms of this
Agreement. However, the Non -Defaulting Party must provide written notice to the Defaulting
Party setting forth the nature of the breach or failure and the actions, if any, required by the
Defaulting Party to cure such breach or failure. The Defaulting Party shall be deemed to be in
"default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take
action and cure the default within ten (10) calendar days after the date of such notice (for monetary
defaults) or within thirty (30) calendar days after the date of such notice (for non -monetary
defaults). If, however, a non -monetary default cannot be cured within such thirty (30) day period,
as long as the Defaulting Party does each of the following:
(a) provides the Non -Defaulting Party with a written, reasonable explanation
as to the reasons the asserted default is not curable within the thirty (30) day period;
(b) notifies the Non -Defaulting Party in writing of the Defaulting Party's
proposed course of action to cure the default;
(c) promptly commences to cure the default within the thirty (30) day period;
(d) makes periodic written reports to the Non -Defaulting Party as to the
progress of the program of cure; and
(e) diligently prosecutes such cure to completion,
then the Non -Defaulting Party shall grant in writing the Defaulting Party such additional time as
determined by the Non -Defaulting Party as reasonably necessary to cure such default.
5.2. City' Remedies. In the event of an uncured default by Developer under this
Agreement, the City, at its option, may institute legal action to cure, correct or remedy such default,
enjoining any threatened or attempted violation, enforce the terms of this Agreement by specific
performance, or pursue any other legal or equitable remedy. Furthermore, City, in addition to or
as an alternative to exercising the remedies in this Section 5.2, in the event of a material default by
Developer, may give notice of its intent to terminate or modify this Agreement pursuant to
Section 4.3, in which event the matter shall be scheduled for consideration and review by the City
Council in the manner set forth in Tustin City Code Section 9618. The decision of the City Council
Tustin Brookfield Development Agt 32 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2419 FINAL Homes Southern California LLC
Development Agreement
shall be final, subject only to judicial review pursuant to California Code of Civil Procedure
Section 1094.5(b).
5.3, Developer's Remedies. In the event of an uncured default of City under this
Agreement, Developer shall be entitled to any or all of the following remedies: (a) seeking
mandamus or special writs, injunctive relief, or specific performance of this Agreement;
(b) modification or termination of this Agreement; or (c) seeking any other remedy available at
law or in equity, provided, however, except as provided in Section 8. 10, the Developer agrees and
covenants on behalf of itself and its Successors In Interest, 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 DDA, the Applicable Rules, or any Development
Permits or Entitlement Approvals sought in connection with development or use of the Property
or Project, or any portion thereof. Developer acknowledges that 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 all Successors in Interest of the Developer.
5.4. Third Party Legal Challenges. In the event of any legal action instituted by a third
party challenging the validity or enforceability of any provision of this Agreement, the Applicable
Rules, the DDA, or Entitlement Approvals for the Project or the approval of any CEQA document
prepared in connection with the foregoing, Developer agrees, at its sole cost and expense, to defend
(with counsel reasonably acceptable to City), indemnify, and hold harmless City, its officers,
employees, agents, and consultants, from any claim, action, or proceeding against City, its officers,
agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of
the City Council, the Planning Commission, or any other decision-making body, including staff,
concerning the Project. City agrees to promptly notify Developer of any such claim or action filed
against City and to cooperate in the defense of any such action. Developer shall also indemnify
and hold harmless City and its agents, officials and employees from and against all claims, losses,
or liabilities assessed or awarded against City by way of judgment, settlement, or stipulation. City
may elect to participate in the defense of any such action under this condition.
6. INDEMNITY BY DEVELOPER
Developer agrees to indemnify, defend, and hold harmless City, City's designees, and their
respective elected and appointed officials, boards, commissions, agents, contractors, and
employees from and against any and all actions, suits, claims, liabilities, losses, damages,
penalties, obligations and expenses (including attorney's fees and costs) which may arise, directly
or indirectly, from the acts, omissions, or operations of Developer or Developer's agents,
contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any
loss resulting from the intentional or active negligence of City, City's designee, or each .of their
Tustin Brookfield Development Agt 33 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
respective elected and appointed officials, boards, commissions, officers, agents, contractors, and
employees. Developer shall select and retain counsel reasonably acceptable to City to defend any
action or actions and Developer shall pay the cost thereof. The indemnity provisions set forth in
this Agreement shall survive termination of the Agreement.
7. MORTGAGEE PROTECTION
The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any
manner, from encumbering the Property or any portion thereof or any improvement thereon by
any Mortgage securing financing with respect to the Property; provided that nothing herein shall
modify or amend the restrictions set forth in the DDA with respect to Mortgages. Any Mortgagee
holding a Mortgage that is not prohibited by the DDA shall be entitled to the following rights and
privileges:
(a) This Agreement shall be superior and senior to any lien placed upon the
Property or any portion thereof after the date of Recording of this Agreement, including the lien
of any Mortgage. Notwithstanding the foregoing, neither entering into this Agreement nor a
breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage
on the Property made in good faith and for value, unless otherwise required by law, and any
acquisition or acceptance of title or any right or interest in or with respect to the Property or any
portion thereof by a Mortgagee (whether pursuant to foreclosure, trustee's sale, deed in lieu of
foreclosure, lease termination or otherwise) shall be subject to the terms and conditions of this
Agreement and any such Mortgagee who takes title to the Property or any portion thereof shall be
entitled to benefits arising under this Agreement.
(b)' Each Mortgagee of any Mortgage encumbering the Property, or any part
thereof, and which is not securing the interest of an End User shall upon written request in writing
to City, be entitled to receive written notice from City of results of the Annual Review and of any
default by Developer in the performance of Developer's obligations under this Agreement
concurrently with delivery of same to Developer and shall have the right, but not the obligation,
to cure the default during the remaining cure period allowed such Party under this Agreement
(including any extended cure period necessary in order to allow the Mortgagee to obtain title to
the Property and cure the default). Notwithstanding the foregoing, the failure of City to deliver a
concurrent copy of such notice of default to a Mortgagee shall not affect in any way the validity
of the notice of default as it relates to the Developer, and provided, further, the giving of any notice
of default or the failure to deliver a copy to any Permitted Mortgagee shall in no event create any
liability on the part of the Person so declaring a default.
(c) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the Mortgage or deed in lieu of such foreclosure, shall take the
Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other
provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under
this Agreement to perform any of Developer's obligations or other affirmative covenants of
Developer hereunder, or to guarantee such performance; except that (i) the Mortgagee shall have
no right to develop the Property without fully complying with the terms of this Agreement, the
Tustin Brookfield Development Agt 34 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
DDA, the Applicable Rules and Entitlement Approvals and (ii) to the extent that any covenant to
be performed by Developer is a condition precedent to the performance of a covenant by City, the
performance thereof shall continue to be a condition precedent to City's performance hereunder.
Notwithstanding anything to the contrary contained above in this Section, any Mortgagee
shall be subject to all of the terms of the DDA, to the extent applicable pursuant to the DDA to
such Mortgagee.
MISCELLANEOUS PROVISIONS
8.1. Recordation of Agreement. This Agreement and any amendment or cancellation
thereof shall be Recorded by the City Clerk within ten (10) calendar days after City executes this
Agreement, as required by Section 65868.5 of the Government Code. If the Parties to this
Agreement amend or cancel this Agreement as provided for herein and in Government Code
Section 65868, or if City terminates or modifies this Agreement as provided for herein and in
Government Code Section 65865.1 for failure of Developer to comply in good faith with the terms
or conditions of this Agreement, the City Clerk shall have notice of such action Recorded.
8.2. Entire Agreement. This Agreement, the DDA and the Other Agreements set forth
and contain the entire understanding and agreement of the Parties with respect to the matters set
forth herein, and there are no oral or written representations, understandings or ancillary covenants,
undertakings or agreements which are not contained or expressly referred to herein. No testimony
or evidence of any such representations, understandings or covenants shall be admissible in any
proceeding of any kind or nature to interpret or determine the terms or conditions of this
Agreement.
8.3. Severability, If any term, provision, covenant or condition of this Agreement shall
be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected
thereby to the extent such remaining provisions are not rendered impractical to perform taking into
consideration the purposes of this Agreement.
8.4. Interpretation and Governing. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the internal laws of the State of
California without reference to choice of law or conflicts of law provisions. This Agreement shall
be construed as a whole according to its fair language and common meaning to achieve the
objectives and purposes of the Parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this
Agreement, all Parties having been represented by counsel in the negotiation and preparation
hereof. The decision of the City Council shall be final, subject only to judicial review pursuant to
California Code of Civil Procedure Section 1094.5(b).
8.5. Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
Tustin Brookfield Development Agt 35 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
8.6. Construction.
8.6.1 References to Sections, Clauses and Exhibits. Unless otherwise
indicated, references in this Agreement to sections, clauses and exhibits are to the same contained
in or attached to this Agreement and all exhibits referenced in this Agreement are incorporated in
this Agreement by this reference as though fully set forth in this Section.
8.6.2 Singular and Plural. As used herein, the singular of any word includes
the plural and vice versa.
8.6.3 Includes and Includinga. As used in this Agreement the words "include"
and "including" mean, respectively, "include, without limitation" and "including, without
limitation".
8.7. Time of Essence. Subject to the following sentence, time is of the essence in the
performance of each provision of this Agreement. Whenever action must be taken (including the
giving of notice or the delivery of documents) under this Agreement during a certain period of
time or by a particular date that ends or occurs on a non -Business Day, then such period or date
shall be extended until the immediately following Business Day.
8.8. Waiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon
the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand
strict compliance by the other Party with the terms of this Agreement thereafter.
8.9. No Third Party Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit of the City and its successors and assigns and Developer and its Successors
In Interest. No other person shall have any right of action based upon any provision of this
Agreement.
8.10. Attorneys' Fees. If any Party to this Agreement institutes any action, suit,
counterclaim or other proceeding for any relief against another Party, declaratory or otherwise
(collectively an "Action"), to enforce the terms hereof or to declare rights hereunder or with respect
to any inaccuracies or material omissions in connection with any of the covenants, representations,
warranties or obligations on the part of the other Party to this Agreement, then the Prevailing Party
in such Action shall be entitled to have and recover of and from the other Party all costs and
expenses of the Action, including (a) the Prevailing Party's reasonable attorneys' fees (which, if
the Prevailing Party is the City, shall be payable at the actual contractual hourly rate for the City's
litigation counsel at the time the fees were incurred, and which with respect to both the City and
the Developer shall in no event be more than $200 per hour), and (b) costs actually incurred in
bringing and prosecuting such Action and/or. enforcing any judgment, order, ruling or award
(collectively, a "Decision") granted therein, all of which shall be deemed to have accrued on the
commencement of such Action and shall be paid whether or not such Action is prosecuted to a
Decision. Any Decision entered in any final judgment shall contain a specific provision providing
for the recovery of all costs and expenses of suit, including reasonable attorneys' fees and expert
Tustin Brookfield Development Agt 36 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
fees and costs (collectively "Costs") incurred in enforcing, perfecting and executing such
judgment. For the purposes of this Section, Costs shall include in addition to Costs incurred in
prosecution or defense of the underlying action, reasonable attorneys' fees, costs, expenses and
expert fees and costs incurred in the following: (a) post judgment motions and collection actions;
(b) contempt proceedings; (c) garnishment, levy, debtor and third -party examinations;
(d) discovery; (e) bankruptcy litigation; and (f) appeals of any order or judgment. "Prevailing
Party' within the meaning of this Section 8.10 includes a Party who agrees to dismiss an Action
in consideration for the other Party's payment of the amounts allegedly due or performance of the
covenants allegedly breached, or obtains substantially the relief sought by such Party.
8.11. Force Majeure.
8.11.1 "Force Majeure Delay" means the occurrence of any of the following
events when such event is beyond the control of the First Party and such Party's officers, directors,
employees, contractors, consultants, agents and representatives and is not due to an act or omission
of such Party or its officers, directors, employees, contractors, consultants, agents, or
representatives or other Person for whom such Party may be contractually or legally responsible,
which directly, materially and adversely affects the ability of the First Party to meet its non -
monetary obligations under this Agreement, including the deadlines imposed by the Schedule of
Performance, or the ability of Developer to Complete the Project, and which events (or the effect
of which events) could not have been avoided by due diligence and use of commercially reasonable
efforts by the Party claiming Force Majeure Delay:
(a) Civil Unrest. An epidemic, blockade, quarantine, rebellion, war,
insurrection, act of terrorism, strike or lock -out, riot, act of sabotage, civil commotion, act of a
public enemy, freight embargo, or lack of transportation;
(b) Unforeseeable Conditions. Reasonably unforeseeable physical
condition of the Property including the presence of Hazardous Materials;
(c) Casualty. Fire, earthquake or other casualty, including liquefaction
resulting from an earthquake, in each case only if causing material physical destruction or damage
on the Property;
(d) Litigation. Any lawsuit seeking to restrain, enjoin, challenge or
delay any issuance of any Entitlement or seeking to restrain, enjoin, challenge, or delay
construction of the Project, which is defended by the First Party;
(e) Weather. Unusually severe weather conditions not reasonably
anticipatable for the City of Tustin, based upon U.S. Weather Bureau climatological reports for
the months included plus a report indicating average precipitation, temperature, etc. for the last ten
(10) years from the nearest. reporting station.
Tustin Brookfield Development Agt 37 City of Tustin/Brookfield
Parcel 2C and S 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
8.11.2 Limitation. The term "Force Majeure Delay" shall be limited to the
matters listed in Section 8.11.1 and specifically excludes from its definition the following matters
which might otherwise be considered Force Majeure Delay:
(a) Entitlements. The suspension, termination, interruption, denial or
failure to obtain or nonrenewal of any Entitlement Approval or Development Permit, license,
consent, authorization or other permit or approval which is necessary for the development of the
Project, except for any such matter resulting from a lawsuit as described in Section 8.11. Idl;
(b) Foreseeable Changes in Governmental Requirements. Any change
in Governmental Requirements which was proposed or was otherwise reasonably foreseeable at
the Effective Date;
(c) Failure to Perform Obligations. Failure of Developer or any
Successor In Interest or other Person to perform any obligation to be performed by Developer or
any Successor In Interest or such other Person under this Agreement as the result of adverse
changes in the financial condition of Developer or such Successor In Interest or other Person, as
applicable;
(d) Failure to Provide Financial Security. Failure of Developer or any
Successor In Interest to provide financial security required by this Agreement when due or to
submit evidence of financing of the Project or failure to perform any obligation to be performed
by Developer or any Successor In Interest or other Person under this Agreement as the result of
adverse changes in market conditions;
(e) Failure to Submit Required Documentation. Failure of the First
Party to submit documentation as and when required by this Agreement;
(f) Failure to Submit Entitlement Applications. Failure to timely
submit applications for any Entitlement Approval or Development Permit required for construction
of the Improvements or development of the Project on the Property when required pursuant to the
Schedule of Performance and/or this Agreement; and
(g) Failure to Execute Documents. Failure of the First Party to execute
documents; and
(h) Other Matters. All other matters not caused by the Second Party and
not listed in Section 8.11.1.
8.11.3 If any Party (the "First Party") believes that an extension of time is due
to Force Majeure Delay, it shall notify the other Party (the "Second Party") in writing within
ninety (90) calendar days from the date upon which the First Party becomes aware of such Force
Majeure Delay, generally describing the Force Majeure Delay and its date of commencement.
Upon written request from the Second Party, the First Party shall promptly provide the following
information with respect to such Force Majeure Delay: a more detailed description of the Force
Tustin Brookfield Development Agt 38 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
Majeure Delay, when and how the First Party obtained knowledge thereof, the steps the First Party
anticipates taking to respond to such Force Majeure Delay, and the estimated delay resulting from
such Force Majeure Delay and response and such other. information as the Second Party may
reasonable request. The extension for Force Majeure Delay shall be granted or denied in the
Second Party's reasonable discretion. If the First Party fails to notify the Second Party in writing
of its request fora given Force Majeure Delay within the ninety (90) calendar days specified above,
there shall be no extension for such Force Majeure Delay.
8.11.4 Extension Limitation. Time periods for performance of any obligations
under this Agreement may be extended for Force Majeure, except that in no event shall the Term
be extended by an event of Force Majeure Delay beyond that set forth in Section 2.3,
8.12. Successors. The burdens of this Agreement shall be binding upon, and the benefits
of this Agreement shall inure to, the City and its successors and assigns and Developer and its
Successors in Interest. All provisions of this Agreement shall be enforceable as equitable
servitudes and constitute covenants running with the land. Each covenant to do or refrain from
doing some act hereunder with regard to development of the Property: (a) is for the benefit of and
is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof;
and (c) is binding upon City and its successors and assigns and upon Developer and each Successor
in Interest during ownership of the Property or any portion thereof and for such longer period as
such Person may have liability hereunder. Notwithstanding the foregoing, upon acquisition of the
Property or any portion thereof by the City pursuant to exercise of the Right of Purchase or Right
of Reversion (each as defined in the DDA) or action in lieu thereof pursuant to the DDA, the City
shall have the right in its sole discretion to terminate this Agreement as to the portion of the
Property so acquired and the Agreement shall remain binding, in accordance with its terms, upon
the remainder of the Property. In the event that the City repurchases or revests all or any portion
of the Property pursuant to exercise of the Right of Purchase or Right of Reversion, such
acquisition shall include all Entitlement Approvals and other development rights, consents,
authorizations, variances, waivers, licenses, permits, certificates and approvals from any
governmental or quasi -governmental authority, and all other appurtenant rights applicable thereto,
including those units allocated to the respective Repurchased Property or the Reacquired Property
(each as defined in the DDA), as applicable, as shown in the Approved Plans or, if then Recorded,
established pursuant to any Recorded Condominium Plan.
8.13. Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the Parties had
executed the same instrument.
8.14. Jurisdiction and Venue. Any action at law or in equity arising under this Agreement
or brought by a Party hereto for the purpose of enforcing, construing or determining the validity
of any provision of this Agreement shall be 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, Santa Ana Division, and the Parties hereto waive all provisions of law providing for
the filing, removal or change of venue to any other court.
Tustin Brookfield Development Agt 39 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
8.15. Project as a Private Undertaking. It is specifically understood and agreed by and
between the Parties hereto that the development of the Project is a private development, that neither
Party is acting as the agent of the other in any respect hereunder, and that each Party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and Developer with respect to this Agreement is
that of a government entity regulating the development of private property and the developer of
such property.
8.16. Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at any time, the other Party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or Record such required instruments
and writings and take any actions as may be reasonably necessary under the terms of this
Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or
consummate the transactions contemplated by this Agreement.
8.17, Estoppel Certificate. Any Party hereunder, may at any time, deliver a written notice
to the other arty requesting such Party to certify in writing that, to the best knowledge of the
certifying Party: (a) this,Agreement is in full force and effect and a binding obligation of the Party;
(b) this Agreement has not been amended or modified either orally or in writing, or if so amended,
identifying the date and nature of the amendments to this Agreement, and, in each case, that the
Agreement remains in full force and effect (including as amended or modified if applicable), and
a continuing binding obligation of the Party; and (c) the requesting Party is not in default in
performance of its obligations set forth in the Agreement, or if the Party is in default, provide a
description of the nature of such default(s). A Party receiving a request hereunder shall execute
and return such certificate within thirty (30) calendar days following receipt thereof. The party to
whom such certificate is addressed, including any third party or Mortgagee, shall be entitled to
rely on the certificate. Developer shall pay to City all costs incurred by City in connection with
the issuance of estoppel certificates.
8,18. Authority to Execute. The person or persons executing this Agreement on behalf
of each Party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of such Party and warrants and represents that he or she/they has/have the
authority to bind such Party to the performance of its obligations hereunder.
8.19. -Non-liability of City Officials and City Employees. No elected or appointed
official, representative, employee, agent, consultant, legal counsel or employee of the City shall
be personally liable to Developer for any amount which may become due to Developer under the
terms of this Agreement.
.8.20. No Merger. As of the Effective Date, the Property is owned in fee by the City, and
portions of the Property may continue to be owned in fee by the City during the Term or may be
conveyed by the City to one or more Developers and subsequently reconveyed to the City during
Tustin Brookfield Development Agt 40 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
the Term. Except as expressly set forth below, there shall be no merger of any rights, interests or
estates created by this Agreement as a result of the ownership by the City of all or any portion of
the Property and no merger shall occur with respect to any portion of the Property unless and until
the City and all persons and entities at the time having a legal and/or equitable ownership interest
in such portion of the Property shall join in a written instrument affecting such merger and shall
duly Record the same. Notwithstanding the foregoing, if the City repurchases or revests any
portion of the Property as a result of its exercise of the Right of Purchase or Right of Reversion
under the DDA, the City shall have the right, in its sole discretion, to merge its interests under this
Agreement, to terminate this Agreement as to the Property so repurchased or revested, to modify
the provisions of this Agreement related to the Repurchased Property or the Reacquired Property,
as applicable, or to take other actions affecting this Agreement or the rights of the City in and to
such Repurchased Property or Reacquired Property, as applicable, without the approval of any
other person or entity.
[SIGNATURES ONFOLLO97NG PAGE]
1
Tustin Brookfield Development Agt 41 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
.... SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day
and year set forth below.
CITY OF TUSTIN:
Dated: By:
, Mayor
1
1
ATTEST:
L -In
Erica N. Yasuda
City Clerk
APPROVED AS TO FORM
IM
David Kendig
City Attorney
Tustin Brookfield Development Agt
Parcel 2C and 8 11-04-2019 FINAL
DEVELOPER:
Brookfield Homes Southern California LLC, a
Delaware limited liability company
By:
Name:
Title:
By:
Name:
Title:
S-1 City of Tustin/Brookfield
Homes Southern California LLC
Development Agreement
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me,
(Insert Name and Title of the Officer)
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct. a
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin Brookfield Development Agt S-2 City of Tustin/Brookfield
Parcel 2C and S 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
1
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On before me,
Date (Insert Name and Title of the Officer)
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted,'executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin Brookfield Development Agt S-2 City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On before me, ,
Date (Insert Name and Title of the Officer)
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin Brookfield Development Agt S-2 City of Tustin/Brookfield
Parcel 2C and S 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
1
EXHIBIT A
TO DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
[Attached]
Tustin Brookfield Development Agt EXHIBIT A City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
EXHIBIT A - LEGAL DESCRIPTION OF THE PROPERTY
THOSE PORTIONS OF LOTS 31 THROUGH 37, INCLUSIVE, LOTS 40 THROUGH 48, INCLUSIVE, LOTS A
THROUGH C, INCLUSIVE, LOTS E THROUGH M, INCLUSIVE, LOTS RRRR, SSSS, TTTT, UUUU, VVW, XXXX,
YYYY, AND ZZZZ, IN CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON TRACT
NO. 17404, FILED IN BOOK 907, PAGES 6 THROUGH 42, INCLUSIVE OF MISCELLANEOUS MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
LOT 2
COMMENCING AT THE CENTERLINE INTERSECTION OF ARMSTRONG AVENUE AND BARRANCA PARKWAY
AS SHOWN ON SAID TRACT NO. 17404;
THENCE ALONG SAID CENTERLINE OF BARRANCA PARKWAY SOUTH 49°19'41" EAST 25.31 FEET;
THENCE SOUTH 49°19'52" EAST 1321.41 FEET TO THE CENTERLINE INTERSECTION OF BARRANCA
PARKWAY AND TUSTIN RANCH ROAD AS SHOWN ON SAID TRACT NO. 17404;
THENCE NORTH 35° 43'46" EAST 830.45 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 73000'00" WEST 642.06 FEET;
THENCE NORTH 24040'12" WEST 369.17 FEET,
THENCE NORTH 19°42'02" EAST 27.75 FEET;
THENCE SOUTH 73°00'00" EAST 339.70 FEET;
THENCE SOUTH 17000'00" WEST 11.00 FEET;
THENCE SOUTH 73°00'00" EAST 60.00 FEET;
THENCE NORTH 17°00'00" EAST 11.00 FEET;
THENCE SOUTH 73°00'00" EAST 445.72 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE
EASTERLY, HAVING A RADIUS OF 587.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 79005'33" WEST;
THENCE SOUTHERLY ALONG SAID CURVE 22.75 FEET THROUGH A CENTRAL ANGLE OF 02013'13" TO THE
BEGINNING OF A NON -TANGENT CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 974.29 FEET, A
RADIAL LINE TO SAID POINT BEARS SOUTH 81°18'30" EAST,
THENCE SOUTHERLY ALONG SAID CURVE 21,46 FEET THROUGH A CENTRAL ANGLE OF 01015'43" TO THE
BEGINNING OF A REVERSE CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 510.00 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 800 02'47" WEST;
r 016
640 FUSCOE
12611112106
inns v.. ., wM. iao, a a.' cd". 6 t24"u r.f.474.vu , r. 94f.474,3313 0 .....w...—
TUSTIN LEGACY "D" SOUTH
PAGE 1 OF 5
fl
1
A
EXHIBIT A - LEGAL DESCRIPTION OF PROPERTY
THENCE SOUTHERLY ALONG SAID CURVE 137.76 FEET THROUGH A CENTRAL ANGLE OF 15°28'37";
THENCE SOUTH 17°00'00" WEST 126.85 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 230,402 SQUARE FEET, 5.289 ACRES MORE OR LESS.
LOT 5
COMMENCING AT THE CENTERLINE INTERSECTION OF ARMSTRONG AVENUE AND BARRANCA PARKWAY
AS SHOWN ON SAID TRACT NO. 17404;
THENCE ALONG SAID CENTERLINE OF BARRANCA PARKWAY SOUTH 49°19'41" EAST 25.31 FEET;
THENCE SOUTH 49°19'52" EAST 1321.41 FEET TO THE CENTERLINE INTERSECTION OF BARRANCA
PARKWAY AND TUSTIN RANCH ROAD AS SHOWN ON SAID TRACT N0, 17404;
THENCE NORTH 03° 17'17" EAST 1179.57 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 73000'00" WEST 332.12 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 1820.00 FEET, A RADIAL LINE TO SAID CURVE BEARS
SOUTH 60048'45" EAST,
THENCE NORTHEASTERLY ALONG SAID CURVE 387.14 FEET THROUGH A CENTRAL ANGLE OF 12°11'15";
THENCE NORTH 17°00'00" EAST 13.50 FEET;
THENCE SOUTH 73°00'00" EAST 291.10 FEET,
THENCE SOUTH 17°00'00" WEST 397.72 FEET TO THE TRUE POINT OF BEGINNING;
CONTAING 121,003 SQUARE FEET, 2.778 ACRES MORE OR LESS
LOT 6
COMMENCING AT THE CENTERLINE INTERSECTION OF ARMSTRONG AVENUE AND BARRANCA PARKWAY
AS SHOWN ON SAID TRACT NO.17404;
THENCE ALONG SAID CENTERLINE OF BARRANCA PARKWAY SOUTH 49°19'41" EAST 25.31 FEET;
THENCE SOUTH 49°19'52" EAST 1321.41 FEET TO THE CENTERLINE INTERSECTION OF BARRANCA
PARKWAY AND TUSTIN RANCH ROAD AS SHOWN ON SAID TRACT NO.17404;
THENCE NORTH 079 05'08" EAST 1623.92 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 73°00'00" WEST 291.10 FEET;
THENCE NORTH 17°00'00" EAST 394.95 FEET,
THENCE SOUTH 73°00'00" EAST 291.10 FEET;
OR FUSCOE
I141811aIa•
157f5 Ym W.w.., Wk 100, Wr C.i.n1. 92406
Y949./741 W • 1.941.4745515 • .wvl..e "
TUSTIN LEGACY "D" SOUTH
PAGE 2 OF S
F
EXHIBIT A - LEGAL DESCRIPTION OF PROPERTY
THENCE SOUTH 17°00'00" WEST 394.95 FEET TO THE TRUE POINT OF BEGINNING;
CONTAINING 114,969 SQUARE FEET, 2.639 ACRES MORE OR LESS.
LOT 7
COMMENCING AT THE CENTERLINE INTERSECTION OF ARMSTRONG AVENUE AND BARRANCA PARKWAY
AS SHOWN ON SAID TRACT NO. 17404;
THENCE ALONG SAID CENTERLINE OF BARRANCA PARKWAY SOUTH 49°19'41" EAST 25.31 FEET;
THENCE SOUTH 49°19'52" EAST 1321.41 FEET TO THE CENTERLINE INTERSECTION OF BARRANCA
PARKWAY AND TUSTIN RANCH ROAD AS SHOWN ON SAID TRACT NO. 17404;
THENCE NORTH 09° 14'08" EAST 2069.59 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 73000'00" WEST 291.10 FEET;
THENCE NORTH 17000'00" EAST 365.85 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE
SOUTHERLY, HAVING A RADIUS OF 1972.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 0C'41'11" EAST;
THENCE EASTERLY ALONG SAID CURVE 293.00 FEET THROUGH A CENTRAL ANGLE OF 08030'47" TO A
POINT OF NON -TANGENCY, A RADIAL LINE TO SAID POINT BEARS NORTH 15°11'58" EAST,
THENCE SOUTH 17°00'00" WEST 396.74 FEET TO THE TRUE POINT OF BEGINNING;
CONTAINING 112,056 SQUARE FEET, 2.572 ACRES MORE OR LESS,
LOT 8
COMMENCING AT THE CENTERLINE INTERSECTION OF ARMSTRONG AVENUE AND BARRANCA PARKWAY
AS SHOWN ON SAID TRACT NO. 17404;
THENCE ALONG SAID CENTERLINE OF BARRANCA PARKWAY SOUTH 49°19'41" EAST 25.31 FEET;
THENCE SOUTH 49°19'52" EAST 1321.41 FEET TO THE CENTERLINE INTERSECTION OF BARRANCA
PARKWAY AND TUSTIN RANCH ROAD AS SHOWN ON SAID TRACT NO, 17404;
THENCE NORTH 270 51'28" EAST 1166.84 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 73000'00" WEST 439.40 FEET;
THENCE NORTH 17°00'00" EAST 397.72 FEET;
THENCE SOUTH 73°00'00" EAST 439.40 FEET;
THENCE SOUTH 17000'00" WEST 397.72 FEET TO THE TRUE POINT OF BEGINNING;
�• 1
FUSCOE
.. Vw Kr . k,% 100. VA- C.M.m1. nut
M W.474.1 f/0 . 1. 949A74.50I5 . ww.luke�.�an
TUSTIN LEGACY "D" SOUTH
PAGE 3 OF 5
0
k
i
FL
A
A
EXHIBIT A - LEGAL DESCRIPTION OF PROPERTY
CONTAINING 174,757 SQUARE FEET, 4.012 ACRES MORE OR LESS.
LOT 9
COMMENCING AT THE CENTERLINE INTERSECTION OF ARMSTRONG AVENUE AND BARRANCA PARKWAY
AS SHOWN ON SAID TRACT NO.17404;
THENCE ALONG SAID CENTERLINE OF BARRANCA PARKWAY SOUTH 49°19'41" EAST 25.31 FEET;
THENCE SOUTH 49°19'52" EAST 1321.41 FEET TO THE CENTERLINE INTERSECTION OF BARRANCA
PARKWAY AND TUSTIN RANCH ROAD AS SHOWN ON SAID TRACT NO. 17404;
THENCE NORTH 24' 4925" EAST 1614.70 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 73°00'00" WEST 439.40 FEET,
THENCE NORTH 17000'00" EAST 394.95 FEET;
THENCE SOUTH 73°00'00" EAST 439.40 FEET,
THENCE SOUTH 17000'00" WEST 394.95 FEET TO THE TRUE POINT OF BEGINNING;
CONTAINING 173,542 SQAURE FEET, 3.984 ACRES MORE OR LESS
LOT 10
COMMENCING AT THE CENTERLINE INTERSECTION OF ARMSTRONG AVENUE AND BARRANCA PARKWAY
AS SHOWN ON SAID TRACT NO. 17404;
THENCE ALONG SAID CENTERLINE OF BARRANCA PARKWAY SOUTH 49019'41" EAST 25.31 FEET;
THENCE SOUTH 49°19'52" EAST 1321.41 FEET TO THE CENTERLINE INTERSECTION OF BARRANCA
PARKWAY AND TUSTIN RANCH ROAD AS SHOWN ON SAID TRACT NO. 17404;
THENCE NORTH 23' 07'05" EAST 2062.36 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 73000'00" WEST 439.40 FEET,
THENCE NORTH 17°00'00" EAST 397.71 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE
SOUTHERLY HAVING A RADIUS OF 1972.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 16°56'34"
EAST;
THENCE EASTERLY ALONG SAID CURVE 1.97 FEET THROUGH A CENTRAL ANGLE OF 00003'26";
THENCE SOUTH 73°00'00" EAST 409.98 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 222.00 FEET,
THENCE EASTERLY ALONG SAID CURVE 91.71 FEET THROUGH A CENTRAL ANGLE OF 23'40'07";
THENCE SOUTH 49°19'53" EAST 8.49 FEET;
TUSTIN LEGACY "D" SOUTH
PAGE 4 OF 5
EXHIBIT A - LEGAL DESCRIPTION OF PROPERTY
THENCE SOUTH 40*40'07" WEST 112.20 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE
SOUTHEASTERLY HAVING A RADIUS OF 290.00 FEET;
THENCE SOUTHERLY ALONG SAID CURVE 119.80 FEET THROUGH A CENTRAL ANGLE OF 23*40'07";
THENCE SOUTH 17000'00" WEST 156.45 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 181,338 SQUARE FEET, 4.163 ACRES MORE OR LESS.
THE ABOVE DESCRIBED LOTS BEING LOTS 2, AND 5 THROUGH 10, INCLUSIVE, OF TRACT NO. 18197.
DATED THIS 29TH DAY OF OCTOBER
KURT R. TROXELL, L.S. 7854
2019
PAGE 5 OF 5
TUSTIN LEGACY "D" SOUTH
i
EXHIBIT B
TO DEVELOPMENT AGREEMENT
MAP SHOWING PROPERTY AND ITS LOCATION
[Attached]
Tustin Brookfield Development Agt EXHIBIT B
Parcel 2C and 8 11-04-2019 FINAL
City of Tustin/Brookfield
Homes Southern California LLC
Development Agreement
EXHIBIT B - MAP SHOWING PROPERTY AND ITS LOCATION
EDINGER AVE
�P
MOFFET DR
Z
D
y Q w
VICTORY RD �a o
co
w
TTM 17404 a
of WR �
Rq�
LOCATION OF
THE
Z
0
PROPERTY
as
BARRANCA PKWY
!� FUSCOE NTS
"" """•PAGE 1 OF
neol
w 149.471.1110 • ba 619.1765713 • ....b•m..,•.•
TUSTIN LEGACY "D" SOUTH
F:\PROJECTS\308\081\E)(HIBRS\DDUWMENT AGREEMENT D(HIBTTS\308—OBI—XH—MI8IT D — MAP SHOVING PROPERTY AND ITS LOCATION.DWG (10-29-2019 9:08:56AM) Plotted by,. Matthew Mantorg
EXHIBIT C
TO DEVELOPMENT AGREEMENT
PUBLIC BENEFITS IMPROVEMENTS
Developer shall construct the following Public Benefits Improvements, which shall be completed
within the time periods set forth in the Schedule of Performance attached to and forming part of
the DDA, and in accordance with the Entitlement Approvals and Approved Plans:
1. The Developer shall design and construct sidewalk, parkway landscape and irrigation system
adjacent to the Project along Airship Avenue, Flight Way, Street "B", "C", "D", "E", and "H".
The Street "D" sidewalk adjacent to the Project shall extend to the corner of Tustin Ranch
Road. Developer shall also design and construct landscape and irrigation improvements within
the street bulb -out planters adjacent to the Project along the aforementioned streets as depicted
on Exhibit G.
2. Developer shall design and construct public sidewalks along both sides of Flight Way from
Armstrong Avenue to Street `B;" and, the southside of Airship Avenue from Armstrong
Avenue to Street `B."
3. Developer shall, pursuant to the Landscape and Water Treatment Installation and Maintenance
Agreement entered into with the City of Tustin, perform the maintenance, repair, and
replacement of the landscaping described therein within the Boundary Landscape Area
depicted on Exhibit G and the Publicly Accessible Common Area depicted on Exhibit E. A
detailed landscape improvement exhibit shall be provided in the Landscape and Water
Treatment Installation and Maintenance Agreement.
4. Developer shall construct the Publicly Accessible Common Area Improvements.
5. Developer shall design and construct the Water Treatment Improvements along Flight Way on
the Water Treatment Area as depicted on Exhibit H to accept and treat stormwater runoff from
the public City Streets identified within the BMP Drainage Management Area Boundary, as
depicted in the Approved Water Quality Management Plan (WQMP).
6. Developer shall rough grade the City Streets Grading Area as depicted on Exhibit J.
7. Developer shall rough grade the Promenade (Alley Grove) located on Lot 1 of the City Map
(TTM No. 18197) and depicted on Exhibit J.
Tustin Brookfield Development Agt EXHIBIT C City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL 1 Homes Southern California LLC
Development Agreement
�,r
1
is
EXHIBIT D
TO DEVELOPMENT AGREEMENT
MAXIMUM TAX BURDEN SCHEDULE
(BASE YEAR)
[Attached]
Tustin Brookfield Development Agt EXHIBIT D
Parcel 2C and 8 11-04-2019 FINAL
City of Tustin/Brookfield
Homes Southern California LLC
Development Agreement
EXHIBIT D
MAXIMUM SPECIAL TAXES FOR DEVELOPED PROPERTY
FOR FISCAL YEAR 2020-2021
COMMUNITY FACILITIES DISTRICT NO. 2018-01 IMPROVEMENT AREA NO.2
Land Use
Land Use
Fiscal Year 2020-2021
Class
Maximum Special Tax
$2,465
1
FLATS >= 2,100 SF
PER DWELLING UNIT
$2,264
2
FLATS 1,800 - 2,099 SF
PER DWELLING UNIT
$1,762
3
FLATS 1,500 - 1,799 SF
PER DWELLING UNIT
$1,387
4
FLATS <1,500 SF
PER DWELLING UNIT
$3,404
5
SFD >= 3 100 SF
PER DWELLING UNIT
$3,275
6
SFD 2,700 — 3,099 SF
PER DWELLING UNIT
$2,922
7
SFD <2,700 SF
PER DWELLING UNIT
$2,662
8
TOWNHOMES >= 2,250 SF
PER DWELLING UNIT
$2,522
9
TOWNHOMES 2,000 - 2,249 SF
PER DWELLING UNIT
$2,279
10
TOWNHOMES <2,000 SF
PER DWELLING UNIT
Increase in the Maximum Special Tax
On each July 1, commencing on July 1, 2021, the Maximum Special Tax for Developed Property
shall be increased annually by the greater of the change in the Consumer Price Index during the
twelve (12) months prior to December of the previous Fiscal Year and two percent (2.00%), not
to exceed four percent (4.00%). Any incremental adjustment that exceeds 2.00% shall be rounded
to the nearest one-tenth of a percent.
"Consumer Price Index" means, for each Fiscal Year, the "All items in Los Angeles -Riverside -
Orange County, CA, all urban consumers, not seasonally adjusted" index published by the U.S.
Bureau of Labor Statistics (Series ID: CUURA421 SAO), measured as of the month of December
in the calendar year that ends in the previous Fiscal Year. In the event this index ceases to be
published, the Consumer Price Index shall be another index as determined by the CFD
Administrator that is reasonably comparable to the Consumer Price Index.
"Fiscal Year" means the period starting July 1 and ending on the following June 30.
Tustin Brookfield Development Agt EXHIBIT D City ofTustin/BrookfieldParcel 2C andTustin/Brookfield-21-2019 FINAL 2 Homes Southern California LLC
Development Agreement
EXHIBIT E
TO DEVELOPMENT AGREEMENT
DEPICTION OF PUBLICLY ACCESSIBLE COMMON AREA
[Attached]
Tustin Brookfield Development Agt EXHIBIT E
Parcel 2C and 8 11-04-2019 FINAL I
City of Tustin/Brookfield
Homes Southern California LLC
Development Agreement
1
1
EXHIBIT F
TO DEVELOPMENT AGREEMENT
CONSTRUCTION PHASING MAP
[Attached]
Tustin Brookfield Development Agt EXHIBIT F City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
Ews
FUSCOE
W 14VA142910 • w 149.4716110 • wr.Jr�a.tw�
EXHIBIT F - CONSTRUCTION PHASING MAP
HMAY 1-
LEGEND
iMom
— — — —PROPERTY
LINE
O
SINGLE FAMILY
DETACHED
Q
MOTOR COURT FLAT
O
TOWNHOME
I
PUBLICLY ACCESSIBLE
��
COMMON AREA
O
TO
PHASE LINE
M
MODEL
BO
BUILDOUT
�Q
G�
�
�
P—
1"= 200,
LEGEND
— — — —PROPERTY
LINE
O
SINGLE FAMILY
DETACHED
Q
MOTOR COURT FLAT
O
TOWNHOME
0
PUBLICLY ACCESSIBLE
COMMON AREA
O
PRIVATE COMMON AREA
PHASE LINE
M
MODEL
BO
BUILDOUT
�Q
G�
SCALE:
1"= 200,
TUSTIN LEGACY "D" SOUTH
8�
co
n�
Ems'
8
M
x
1
il
EXHIBIT G
TO DEVELOPMENT AGREEMENT
BOUNDARY LANDSCAPE AREA
[Attached]
Tustin Brookfield Development Agt EXHIBIT G City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
EXHIBIT G - BOUNDARY LANDSCAPE AREA
SEE PAGE 3
FLIGHT WAY
r _xt
fY,
LOT 204
ul
S
1 - 1 1 « « ......rte ry +� w
ul
If
f
I
►
poo
LEGEND
PROPERTY
LINE
•m BOUNDARY
I . LANDSCAPE AREA
l
f ,1 SCALE:
sJ FUSCOE 1"= 80'
"•"""'•
1910Ya IIV--ImM100,M3., cin«M PAGE 1OF8
Y949.474.196QIs .�.11f0 • /tlA74—7717 • f•rs—
TUSTIN LEGACY "D" SOUTH
C
s
z
s
a
I0;R
N
ro
N
a
1
EXHIBIT G - BOUNDARY LANDSCAPE AREA
SEE PAGE 6
FLIGHT WAY
t..f
LEGEND
PROPERTY
LINE
BOUNDARY
LANDSCAPE AREA
1
FUSCOE
11110111111
117" *' K. M.1 W, W-1 1'.
3,u
M f11A71.11b • 1. 114IA74 I5 • rw.F--
TUSTIN LEGACY "D" SOUTH
SCALE:
1"=80'
PAGE 2OF8
EXHIBIT G - BOUNDARY LANDSCAPE AREA
FLIGHTWAYt.�"� 1�-„�:+�?L' !, �>o n..r.' fk 1¢ .4I ''!3lm�5k�i��,�'fnr:N•; Q0.; (�'&/ �,7 �.:ClliSd;i`iC 1,1':$A ?” ti..:�:` '�. �tw �+t 5
i. ."Cr r � ��r�i.�S'iY:MicaAzPSt ' �i3� .�lzki'�- 3x_Ss.:riu .�i.adr• >h'�1L.'. �c+3i aL' � �. i(� Ks'''
LEGEND
PROPERTY
LINE
BOUNDARY
f LANDSCAPE AREA
FUSCOE
l..1.lialle
I'M Vw Ibm 's.,
100, kms, CdlwN 924%
Y 949/71.1 M0 • fm 9N.t7LS71! • —f—
TUSTIN LEGACY "D" SOUTH
SCALE:
1"=80'
PAGE 3 OF 8
1�
"r1Sf } it .1Y7,..vu
��e,7.4,.'':,1� , ��... j l:��%�L i S> .t l.r�.,;'.:,�r.Yl.
.pai.:. ' i*u:• J F
•r ^:i�4 �'j
r
,+S
�7Y�,� }�
6cL+.�'f�•,S_Y'iE s��+ TEl7TF� .
� 9,llrt��
i:' �r
r��A
15"
'�'
$<
9,
Ti
•
•I
M1,t�
y'
nl4
..fffFFill
/'�
�
' 1MI tiA�l
�C'� 111;,.�13�
■
�
� �
l
Y
'��
FLIGHTWAYt.�"� 1�-„�:+�?L' !, �>o n..r.' fk 1¢ .4I ''!3lm�5k�i��,�'fnr:N•; Q0.; (�'&/ �,7 �.:ClliSd;i`iC 1,1':$A ?” ti..:�:` '�. �tw �+t 5
i. ."Cr r � ��r�i.�S'iY:MicaAzPSt ' �i3� .�lzki'�- 3x_Ss.:riu .�i.adr• >h'�1L.'. �c+3i aL' � �. i(� Ks'''
LEGEND
PROPERTY
LINE
BOUNDARY
f LANDSCAPE AREA
FUSCOE
l..1.lialle
I'M Vw Ibm 's.,
100, kms, CdlwN 924%
Y 949/71.1 M0 • fm 9N.t7LS71! • —f—
TUSTIN LEGACY "D" SOUTH
SCALE:
1"=80'
PAGE 3 OF 8
1�
i
F
F-
LU
w
w
F-
cn
J)
EXHIBIT G -BOUNDARY LANDSCAPE AREA
LEGEND
—PROPERTY
LINE
BOUNDARY
LANDSCAPE AREA
1.10IFUSCOE
I.A.1 JAC 0 im 94J14? n53 '=Aotr
SEE PAGE 5
STREET "H"
STREET "Ell
SEE PAGE 3
TUSTIN LEGACY M" SOUTH
SCALE:
V=80'
PAGE 4 OF 8
EXHIBIT G — BOUNDARY LANDSCAPE AREA
_ ....__._ AIRSHIP AVENUE
�lj _tv
t _
-Lu
V1.1 CD
III
�, a
-
W ,
_.i y
W f t y=
d
k 1
^
1
1.
STREET "H"
SEE PAGE 4
LEGEND
PROPERTY
LINE
BOUNDARY
= LANDSCAPE AREA
s 1 SCALE:
FUSCOE 1" = 80'
"" """•m ..v.,l�0im,rr",crl.w.fila PAGE 5OF8
4 f/1/.IffO 0 YfH.471.831! • wW./:
TUSTIN LEGACY "D" SOUTH
PI
EXHIBIT G - BOUNDARY LANDSCAPE AREA
TUSTIN LEGACY "D" SOUTH
EXHIBIT G - BOUNDARY LANDSCAPE AREA
am
a' `fi��'��"SS:"'�.1V•k� ��s''.;�'a6 �i:a;'� r� �r r;,Fwi:� xT�t�*ii�vd` h'.,�ars,r,�.�„�:;J �": ),u =,�`�,'.n;��s
QyJ 4 h;.!y.•d�
iz
f rf �nn ro
z)
i
TUSTIN LEGACY "D" SOUTH
�II
9
1
L
U
[1
EXHIBIT G - BOUNDARY LANDSCAPE AREA
1041- 11 :F_-Ivj :11 01
Elmk
'rye
5
Y-cl {i417
1 r s
�w��yn 9'��a � sr•�` �Fcs�r� � t� rs..{. � iY'4�'"�`�'v�, d`' �?�rt� � � Y���.#aa�,z;�. & uY�b. �'i�� F 3
+',�, ,r. ,.L+ 7' � r y��•.m a � .�:,-z �^k. a ..,.o--� �F�f'i„ =_F;,� t�. >P a .;g'�,caa"�,,,��� xrsr��., ir#17r x�;,`'a�9.
•
TUSTIN LEGACY "D" SOUTH
:l
EXHIBIT H
TO DEVELOPMENT AGREEMENT
WATER TREATMENT AREA
[Attached]
Tustin Brookfield Development Agt EXHIBIT H
Parcel 2C and 8 11-04-2019 FINAL
City of Tustin/Brookfield
Homes Southern California LLC
Development Agreement
Ll
i
EXHIBIT. I
TO DEVELOPMENT AGREEMENT
DEDICATIONS
1. Developer shall dedicate the following easements to the City of Tustin, in the
locations and in accordance with the terms set forth in the Entitlement Approvals and
the Developer Tentative Tract Map (TTM) 19103 at no cost to the City:
a. Easements for emergency vehicle access and public services ingress and
egress purposes over the private drives and driveways, at no cost to the City,
on the Developer Final Tract Map.
b. A perpetual easement at no cost to the City for the benefit of the City and the
public providing public access in, on, over, and across the Publicly Accessible
Common Area in the locations depicted on Exhibit E in order that the Publicly
Accessible Common Area and the Publicly Accessible Common Area
Improvements are made available to the public.
2. Developer shall release and relinquish to the City of Tustin all vehicular access rights
along Airship Avenue, Flight Way, Street `B", "C", "D", `B", and "H", except at
approved access locations and street intersections, at no cost to the City.
3. Developer shall satisfy dedication and/or reservation requirements as applicable,
including, but not limited to, dedication in fee of all required street rights-of-way;
dedication of all required flood control right-of-way easements; and dedication of
vehicular access rights, sewer easements, and water easements defined and approved
as to specific locations by the City Engineer (at no cost to the City) and/or other
agencies.
4. Developer shall make an irrevocable offer of dedication in fee over the Water
Treatment Area to the City on the Developer Final Tract Map or other instrument
approved by the City at no cost to the City.
Tustin Brookfield Development Agt EXHIBIT I City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
1
1
EXHIBIT J
TO DEVELOPMENT AGREEMENT
GRADING AREA PLAN
[Attached]
Tustin Brookfield Development Agt EXHIBIT J City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
EXHIBIT K '
TO DEVELOPMENT AGREEMENT
PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENT AND
IRREVOCABLE OFFER TO DEDICATE FEE INTEREST IN WATER TREATMENT
AREA
[Attached]
Tustin Brookfield Development Agt EXHIBIT K City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL Homes Southern California LLC
Development Agreement
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT FROM
RECORDING FEES PER GOVERNMENT
CODE §6103 AND §27383.
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
City Manager
The City of Tustin
300 Centennial Way
Tustin, California 92780
Space Above This Line Reserved for Recorder's Use
PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENTS
AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE
This PUBLIC ACCESS COVENANT AND DECLARATION OF EASEMENTS
AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE
("Covenant") is made this day of , 20—, by
("Developer"), in favor of the City of Tustin ("City") and for the
benefit of its successors and assigns, and where specified, its residents and the public at
large.
A. Concurrently with the recording of this Covenant in office of the County
Clerk Recorder for Orange County, California ("Official Records"), City has conveyed to
Developer that certain real property legally described on Schedule "1" attached hereto and
made a part hereof (the "Property") and Developer intends to develop the Property with
four hundred (400) residential housing units (the "Project") together and certain additional
amenities and improvements as further described in (1) that certain statutory Development
Agreement between City and Developer dated as of and recorded in
the Official Records on as Instrument No.
("Development Agreement") and (2) that certain Disposition and Development
Agreement (Tustin Legacy) for Portions of Disposition Parcels 2C and 8 between
Developer and City dated as of , a Memorandum of which was recorded in
the Official Records immediately prior to recording of this Covenant. Initially capitalized
terms used and not defined in this Covenant shall have the meanings set forth in the
Development Agreement.
B. The Project will be developed pursuant to that certain Final Tract Map
No. 19103 ("Developer Final Tract Map") which unless otherwise approved by the City
in its sole discretion shall be in the form and substance of Tentative Tract Map No. 19103
approved by the City pursuant to the California Subdivision Map Act on , 20_
and which is proposed to be recorded in the Official Records upon approval thereof by
Orange County,
Tustin Brookfield Development Agt EXHIBIT K City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL 1 Homes Southern California LLC
Development Agreement
1
C. As partial consideration for the conveyance of the Property by the City to
Developer, Developer has agreed to make the following dedications and grant the
following easements and releases in favor of the City of Tustin on the Developer Final
Tract Map, at no cost to the City, in the locations and in accordance with the terms as set
forth in the Entitlement Approvals and the Developer Final Tract Map, a copy of which is
attached to this Covenant for reference as Schedule "2" and incorporated herein by this
reference:
1. Perpetual easements in gross for emergency vehicle access and public
services ingress and egress purposes over all of the private drives and
driveways.
A perpetual easement in gross for the benefit of the City, its residents and the
public providing public access in, on, over, and across the Publicly Accessible
Common Area depicted upon Schedule "3" attached hereto and incorporated
herein by this reference in order that the Publicly Accessible Common Area
and the Publicly Accessible Common Area Improvements are made available
to the public.
3. Release and relinquishment to the City of all vehicular access rights along
Airship Avenue, Flight Way, Street `B", "C", "D", "E", and "H" as depicted
on the Developer Final Tract Map.
4. Developer shall satisfy dedication and/or reservation requirements as
applicable, including, but not limited to, dedication in fee of all required street
rights-of-way; dedication of all required flood control right-of-way
easements; and dedication of vehicular access rights, sewer easements, and
water easements defined and approved as to specific locations by the City
Engineer (at no cost to the City) and/or other agencies.
5. Developer shall make an irrevocable offer of dedication to the City in fee of
the Water Treatment Area in the location generally depicted on Schedule "4"
and legally described as Lot A on the Developer Final Tract Map and all
Water Treatment Improvements thereon.
D. This Covenant is intended to preserve and maintain the obligation of
Developer to grant each of the foregoing easements and dedications, including without
limitation, the right to public access in, over, along, though, upon and across the Publicly
Accessible Common Area depicted upon Schedule "3" and the Water Treatment Area
depicted upon Schedule "4", subject to the terms and conditions herein, until the Developer
Final Tract Map dedicating and memorializing the easements, releases and dedications
described herein is recorded in the Official Records against the Property.
NOW THEREFORE, Developer hereby covenants, and Developer and City
hereby agree, as follows:
Tustin Brookfield Development Agt EXHIBIT K City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL 2 Homes Southern California LLC
Development Agreement
I . Developer hereby grants and conveys to the City, for the benefit of the City,
its successors and assigns, City residents and the public at large, at no cost to the City, a
non-exclusive, perpetual easement in gross and right-of-way for public access in, over,
along, through, upon and across that certain real property situated in the County of Orange,
State of California, generally described on Schedule "1" and depicted on Schedule "2" and
as specifically depicted on Schedule "3", each of which are attached hereto and by this
reference incorporated herein ("Public Access Easement"); provided, however, that
public access to the Public Access Easement may be prohibited by Developer in areas
under construction on the Property during the course of such construction.
2. Developer hereby grants to the City, for the benefit of the City, its
successors and assigns, at no cost to the City, an irrevocable offer of dedication in fee of
the Water Treatment Area comprising the property legally described in Schedule "4" and
all Water Treatment Improvements thereon.
3. Developer hereby grants and conveys to the City, for the benefit of the City,
its successors and assigns, at no cost to the City, a perpetual, non-exclusive easement in
gross for emergency vehicle access and public services ingress and egress purposes over
the private drives and driveways to be created upon the Property.
4. Developer hereby grants and provides to the City, for the benefit of the City,
its successors and assigns, at no cost to the City, a release and relinquishment to the City
of Tustin of all vehicular access rights along Airship Avenue, Flight Way, Street `B", "C",
"D", "E", and "H" as depicted on the Developer Final Tract Map, except at approved access
locations and street intersections, at no cost to the City.
5. Developer hereby grants to the City, for the benefit of the City, its
successors and assigns, at no cost to the City such other dedications in fee of required street
rights-of-way; dedication of required flood control right-of-way easements; and dedication
of vehicular access rights, sewer easements, and water easements defined and approved as
to specific locations by the City Engineer and/or other agencies, as depicted on the
Developer Final Tract Map attached as Schedule "2".
6. Upon recording of the Developer Final Tract Map in the Official Records,
the City Manager, or his or her designee, shall execute the Termination form attached
hereto as Schedule "5" ("Termination"), which shall be recorded concurrently With the
recordation of the Developer Final Tract Map, terminating this Covenant with respect to
the Property and upon recordation of such Termination, this Covenant shall automatically
terminate.
7. Each of the foregoing easements, releases and dedications granted hereby
shall exist until such time as terminated by recording of a Termination, as the case may be,
with respect thereto pursuant to the express terms herein provided.
8. This Covenant is an equitable servitude and shall be binding upon the
Developer and its successors and assigns and shall run with the Property for the benefit of
the City and its successors and assigns unless and until terminated as set forth herein.
Tustin Brookfield Development Agt EXHIBIT K City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL 3 Homes Southern California LLC
Development Agreement
1
1
9. This Covenant shall be recorded in the Official Records against the
Property, and is binding on and inures to the benefit of City and Developer, and their
respective successors and permitted assigns.
10. This Covenant may be signed in counterparts, each of which shall be
deemed an original and all of which when taken together shall constitute one instrument.
{signatures on following page}
Tustin Brookfield Development Agt EXHIBIT K City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL 4 Homes Southern California LLC
Development Agreement
IN WITNESS WHEREOF, the Developer and City have executed this Public
Access Covenant and Declaration of Easement on the date first above written.
CITY OF TUSTIN:
Dated:
ATTEST:
By:
Erica N. Yasuda
City Clerk
APPROVED AS TO FORM
David Kendig
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
LIM
Amy E. Freilich
Name:
Title:
DEVELOPER:
Brookfield Homes Southern California LLC, a
Delaware limited liability company
By:
Name:
Title:
By:
Name:
Title:
II
Tustin Brookfield Development Agt EXHIBIT K City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL 5 Homes Southern California LLC
Development Agreement
n
n
CERTIFICATE OF ACCEPTANCE OF DEED
(City of Tustin)
This is to certify that the interest in real property conveyed by the PUBLIC
ACCESS COVENANT AND DECLARATION OF EASEMENTS AND
DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE dated
from
to the
CITY OF TUSTIN, a governmental agency, is hereby accepted by the undersigned officer
on behalf of the CITY OF TUSTIN pursuant to authority conferred by Resolution
No. 95- 39 of the CITY OF TUSTIN adopted on April 3, 1995, and the grantee consents
to recordation thereof by its duly authorized officer; provided that this Certificate of
Acceptance is not an acceptance of the Irrevocable Offer to Dedicate the Water Treatment
Area and Water Treatment Improvements but merely an acceptance of the fact that the
Irrevocable Offer to Dedicate has been made.
Dated:
Tustin Brookfield Development Agt
Parcel 2C and 8 11-04-2019 FINAL
Erica N. Yasuda, City Clerk
EXHIBIT K City of Tustin/Brookfield
6 Homes Southern California LLC
Development Agreement
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me,
(Insert Name and Title of the Officer)
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin Brookfield Development Agt EXHIBIT K City of TustinBroolcfield
Parcel 2C and 8 11-04-2019 FINAL 7 Homes Southern California LLC
Development Agreement
i
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me, ,
(Insert Name and Title of the Officer)
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin Brookfield Development Agt EXHIBIT K City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL 7 Homes Southern California LLC
Development Agreement
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On before me, ,
Date (Insert Name and Title of the Officer)
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary,Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin Brookfield Development Agt EXHIBIT K City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL 7 Homes Southern California LLC
Development Agreement
1
19
1
A
SCHEDULE "1"
Legal Description of Property
(to be attached)
[To be replaced prior to execution with legal description of Lot 2 and Lots 5 through 10
inclusive based on final recorded City Map or if not then. recorded, with a metes and bounds
description of the Property]
Tustin Brookfield Development Agt Schedule "1" to City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL EXHIBIT K Homes Southern California LLC
Development Agreement
SCHEDULE "2"
Developer Final Tract Map
[To be attached inform approved by the City]
Tustin Brookfield Development Agt Schedule "2" to City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL EXHIBIT K Homes Southern California LLC
Development Agreement
1
1
SCHEDULE 'T'
Description and Depiction of Publicly Accessible Common Area
[Depiction Attached]
[Prior to closing attach metes and bounds legal description of portions of Lot 2 and Lot 10
upon which the Publicly Accessible Common Area is located]
Tustin Brookfield Development Agt Schedule "Y to City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL EXHIBIT K Homes Southern California LLC
Development Agreement
SCHEDULE "4"
Legal Description of Water Treatment Area
(add metes and bounds description of the area comprising
Lot A on Developer Tentative Tract Map)
Tustin Brookfield Development Agt Schedule "4" to City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL EXHIBIT K Homes Southern California LLC
Development Agreement
SCHEDULE "5"
Form of Termination of Public Access Covenant and Declaration of Easements and Dedications
and Irrevocable Offer to Dedicate
[Attached]
Tustin Brookfield Development Agt Schedule "Y' to City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL EXHIBIT K Homes Southern California LLC
Development Agreement
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT FROM
RECORDING FEES PER GOVERNMENT
CODE §6103 AND §27383.
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
City Manager
The City of Tustin
300 Centennial Way
Tustin, California 92780
Space Above This Line Reserved for Recorder's Use
TERMINATION OF PUBLIC ACCESS COVENANT AND DECLARATION OF
EASEMENTS AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE
THIS TERMINATION OF PUBLIC ACCESS COVENANT AND DECLARATION OF
EASEMENTS AND DEDICATIONS AND IRREVOCABLE OFFER TO DEDICATE
("Termination") is made this day of , 20_, by the City of Tustin
("City"), in favor of ("Developer").
A. On Developer, or its predecessor -in -interest, recorded as
Instrument No. that certain Public Access Covenant and Declaration of
Easements and Dedications and Irrevocable Offer to Dedicate ("Covenant") in the Official
Records of Orange County, California ("Official Records").
B. Final Tract Map No. 19103 ("Developer Final Tract Map") has now been
recorded in the Official Records [add recording information] and accordingly, pursuant to the
terms of the Covenant, the City has agreed to release the Covenant.
C. All capitalized terms not otherwise defined herein shall have the meaning given to
them in the Covenant.
NOW THEREFORE, the City hereby agrees as follows:
1. Termination. The Covenant is hereby terminated and shall be of no further force or
effect. All easements, dedications, irrevocable offer to dedicate, and releases including without
limitation, the Public Access Easement and the irrevocable offer to dedicate the Water Treatment
Area granted by Developer to the City pursuant to the Covenant are therefore also released,
provided that each of the foregoing remain in full and force and effect to the extent set forth upon
and granted pursuant to the Developer Final Tract Map. Nothing in this Termination shall modify,
Tustin Brookfield Development Agt Schedule "S" to City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL EXHIBIT K Homes Southern California LLC
1 Development Agreement
M
1
affect; terminate or void the dedication of easements or the provision of offers to dedicate
established by the Developer Final Tract Map.
2. Recordation; Successors and Assigns. This Termination shall be recorded in the
Official Records against the Property, and is binding on and inures to the benefit of City and
Developer, and their respective successors and permitted assigns.
3. Counterparts. This Termination may be signed in counterparts, each of which shall
be deemed an original and all of which when taken together shall constitute one instrument.
[Signature Page Follows]
Tustin Brookfield Development Agt Schedule "Y' to City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL EXHIBIT K Homes Southern California LLC
2 Development Agreement
IN WITNESS WHEREOF, the City and Developer have executed this Termination of Public
Access Covenant and Declaration of Easements and Dedications and Irrevocable Offer to
Dedicate on the date first above written.
Dated:
ATTEST:
By:
Erica N. Yasuda
City Clerk
APPROVED AS TO FORM
By:
David Kendig
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
Amy E. Freilich
CITY OF TUSTIN:
By:
Name:
Title:
DEVELOPER:
Brookfield Homes Southern California LLC, a
Delaware limited liability company
By:
Name:
Title:
Name:
Title:
Tustin Brookfield Development Agt Schedule "5" to City of Tustin/Brookfield
Parcel 2C and 8 11-04-2019 FINAL EXHIBIT K Homes Southern Califomia LLC
4 Development Agreement
1
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me,
(Insert Name and Title of the Officer)
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above
Tustin Brookfield Development Agt
Parcel 2C and S 11-04-2019 FINAL
Signature:
Signature of Notary Public
Schedule "5" to City of Tustin/Brookfield
EXHIBIT K Homes Southern California LLC
4 Development Agreement
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On before me,
Date (Insert Name and Title of the Officer)
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above
Tustin Brookfield Development Agt
Parcel 2C and 8 11-04-2019 FINAL
Signature:
Signature of Notary Public
Schedule "5" to City of Tustin/Brookfield
EXHIBIT K Homes Southern California LLC
4 Development Agreement
1
1
j1L
i
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me,
(Insert Name and Title of the Officer)
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), br the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above
Tustin Brookfield Development Agt
Parcel 2C and 8 11-04-2019 FINAL
Signature:
Signature of Notary Public
Schedule "S" to City of Tustin/Brookfield
EXHIBIT K Homes Southern California LLC
4 Development Agreement