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Home My WebLink AboutORD 1515 (2021) DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 ORDINANCE NO. 1515 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING DEVELOPMENT AGREEMENT (DA) 2021-0001 BETWEEN THE CITY OF TUSTIN AND IRVINE ASSET GROUP, LLC TO FACILITATE THE DEVELOPMENT OF A MIXED-USE DEVELOPMENT CONSISTING OF 137 RESIDENTIAL APARTMENT UNITS AND 7,000 SQUARE FEET OF COMMERCIAL SPACE ON AN APPROXIMATE 3.38 ACRE SITE LOCATED WITHIN THE RED HILL AVENUE SPECIFIC PLAN (RHASP) AT 13751 AND 13841 RED HILL AVENUE (APN 500-141-09 and 500-141-10) The City Council of the City of Tustin does hereby ordain as follows: SECTION 1 . The City Council finds and determines as follows: A. The Red Hill Avenue Specific Plan (RHASP) provides for the allocation of 500 additional residential units within the Specific Plan area. Of this total, 395 dwelling units are eligible for development within the Specific Plan area north of the 1-5. B. In July 2020, Craig Swanson, on behalf of Irvine Asset Group, LLC ("Applicant"), submitted a Residential Allocation Reservation (RAR) application to the City, requesting an allocation of 114 base residential units (does not include density bonus units) for the development of a mixed-use project containing 137 residential units, including a twenty (20) percent density bonus based upon the provision of six (6) very-low income rental units, and 7,000 square feet of retail commercial space at 13751 and 13841 Red Hill Avenue, consisting of two lots containing approximately 3.38 acres ("Project"). C. On November 12, 2020, the Community Development Director conducted a preliminary review and, in accordance with the RHASP, approved the 114 RAR, pending the timely submittal of an application for the Project Entitlements. D. That the proper application has been submitted by Applicant for the development of the Project. E. That Development Agreement (DA) 2021-0001 serves to strengthen the public planning process and provide for the orderly implementation of the General Plan and the RHASP, and certain assurances to the Developer and the City. F. That Section 65864 et seq. of the Government Code and Sections 9600 to 9619 of the Tustin City Code authorize the Tustin City Council to enter into a Ordinance No. 1515 Page 1 of 4 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 Development Agreement. 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. G. That a public hearing was duly called, noticed, and held on said application on July 27, 2021 , by the Planning Commission. The Planning Commission adopted Resolution Nos. 4435 and 4436 recommending that the City Council adopt Ordinance 1515 and approve the Project. H. That a public hearing was duly called, noticed, and held on said application on August 17, 2021 , by the City Council. I. That on October 16, 2018, the City Council certified the Final Program Environmental Impact Report SCH No. 2017041031 (FPEIR), including a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program for the RHASP in accordance with the requirements of the California Environmental Quality Act. The Project proposes the development of a site with uses that are consistent with the uses approved in the RHASP, General Plan, and zoning designations for the site and are also within the density and development assumptions that were evaluated in the RHASP FEIR for the site. As a result, the City of Tustin, as the Lead Agency, has prepared an Addendum to the RHASP Program EIR pursuant to the requirements of the California Environmental Quality Act (CEQA, Public Resources Code §§ 2100, et seq.) the regulations promulgated thereunder (14 California Code of Regulations §§ 15000, et seq., CEQA Guidelines). J. That the DA is supported by the following findings: 1. The Project is consistent with the objectives, policies, land uses and programs specified in the General Plan and the RHASP in that mixed- use developments that include a combination of commercial retail and/or office on the ground floor and residential uses on the upper floors in a vertical mixed-use format are permitted uses within the RHASP area and promotes citywide goals of encouraging economic development, business attraction and development within the RHASP. 2. That the Project is compatible with the uses authorized in the RHASP 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 development Ordinance No. 1515 Page 2 of 4 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 agreement incorporates public benefits in the form of two (2) pedestrian plazas, off-site parking on Red Hill Avenue, gateway signage at the southwest corner of San Juan Street and Red Hill Avenue, public art, and payment of park impact fees to fund park improvements within the RHASP and will provide options for housing to the City's housing stock. 4. That the project will not be detrimental to the health, safety, and general welfare. The project will comply with the RHASP, TCC and other regulations to ensure that the project will not be detrimental in any way. 5. That the project will have a positive fiscal impact on the City in that the provisions of the proposed DA and conditions of approval will ensure that the project will have a positive fiscal impact on the City 6. That the project will not adversely affect the orderly development of property in that the proposed project is orderly, well designed, and equipped with the necessary infrastructure and amenities to support future residents and businesses in the RHASP. SECTION 2. The City Council hereby approves Development Agreement 2021-0001 attached hereto as Exhibit A and subject to final approval of the City Attorney. SECTION 3. The City Manager is hereby authorized to take such actions, and execute such documents and instruments as deemed necessary or desirable to implement the terms of the DA and other documents as necessary. SECTION 4. Severability. 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 7th day of September, 2021 . DocuSigned by: AUS INTUMIYAkD, Mayor Pro Tem Ordinance No. 1515 Page 3 of 4 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 DocuSigned by: ERICKVAYX9MA, City Clerk APPROVED AS TO FORM: DocuSigned by: DAVID CR City Attorney STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1515 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the 17th day of August, 2021 , and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the 7th day of September, 2021, by the following vote: COUNCILMEMBER AYES: Lumbard, Cooper, Gallagher, Gomez (4) COUNCILMEMBER NOES: (0) COUNCILMEMBER ABSTAINED: (0) COUNCILMEMBER ABSENT: Clark (1) 5 DocuSigned by: , qxw, ERICA .' A, City Clerk Ordinance No. 1515 Page 4 of 4 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Clerk (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Tustin and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT (2021-_) between CITY OF TUSTIN and Irvine Asset Group, LLC 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 TABLE OF CONTENTS Page 1. Definitions.......................................................................................................................3 2. General Provisions...........................................................................................................6 2.1 Binding Effect of Agreement; Authorized Use of Property...................................6 2.2 Developer Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement..................................6 2.3 Term. ...................................................................................................................7 3. Development of Project. ..................................................................................................8 3.1 Utilization of Residential Allocation Reservation: Pulling Permits and Commencement of Construction..........................................................8 3.2 Development Regulations; Developer's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals. ...........................................................................................................8 3.3 Other Governmental or Quasi-Governmental Permits...........................................9 3.4 No Conflicting Enactments. .................................................................................9 3.5 Reservations of Authority. .................................................................................10 4. Public Benefits. .............................................................................................................12 4.1 Provision of Public Benefits...............................................................................12 4.2 Effect of Public Benefits Default........................................................................12 5. Enforcement..................................................................................................................13 6. Annual Review of Developer's Compliance With Agreement........................................13 6.1 General. .............................................................................................................13 6.2 Developer Obligation to Demonstrate Good Faith Compliance...........................13 6.3 Procedure...........................................................................................................13 6.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of Developer's Default...............................................................................13 7. Events of Default...........................................................................................................13 7.1 General Provisions.............................................................................................13 7.2 City's Remedies. ................................................................................................14 7.3 Developer's Remedies. .......................................................................................14 7.4 Waiver. ..............................................................................................................15 7.5 Additional City Remedy for Developer's Default...............................................15 7.6 No Personal Liability of City Officials, Employees, or Agents. ..........................15 7.7 Recovery of Legal Expenses by Prevailing Party in Any Action.........................15 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 TABLE OF CONTENTS Page 8. Force Majeure. ..............................................................................................................15 9. Indemnity Obligations of Developer. .............................................................................16 9.1 Indemnity Arising From Acts or Omissions of Developer. .................................16 9.2 Third Party Litigation.........................................................................................16 9.3 Environmental Indemnity...................................................................................17 9.4 Labor Laws........................................................................................................17 10. Assignment....................................................................................................................17 10.1 Permitted Transfers............................................................................................17 10.2 City Approval of Transferee...............................................................................18 10.3 Ongoing Liability of Transferor. ........................................................................18 11. Mortgagee Rights. .........................................................................................................19 11.1 Encumbrances on Property.................................................................................19 11.2 Mortgagee Protection.........................................................................................19 11.3 Mortgagee Not Obligated...................................................................................19 11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. ............................19 12. Miscellaneous Terms.....................................................................................................20 12.1 Notices...............................................................................................................20 12.2 Project as Private Undertaking. ..........................................................................20 12.3 Cooperation. ......................................................................................................21 12.4 Estoppel Certificates. .........................................................................................21 12.5 Rules of Construction.........................................................................................21 12.6 Time Is of the Essence. ......................................................................................21 12.7 Waiver. ..............................................................................................................21 12.8 Counterparts.......................................................................................................21 12.9 Entire Agreement...............................................................................................22 12.10 Severability........................................................................................................22 12.11 Developer Deposit. ............................................................................................22 12.12 Construction.......................................................................................................23 12.13 Successors and Assigns; Constructive Notice and Acceptance............................23 12.14 No Third Party Beneficiaries..............................................................................23 12.15 Applicable Law and Venue. ...............................................................................23 12.16 Section Headings. ..............................................................................................24 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 TABLE OF CONTENTS Page 12.17 Incorporation of Recitals and Exhibits................................................................24 12.18 Recordation........................................................................................................24 12.19 Authority to Execute. .........................................................................................24 EXHIBITS Exhibit A Legal Description of Property Exhibit B Site Plan Exhibit C On Street Parking Plan Exhibit D Gateway Sign 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 DEVELOPMENT AGREEMENT (2021-_) (Pursuant to California Government Code sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference purposes as of the day of ,2021, and is being entered into by and between the CITY OF TUSTIN ("City") Irvine Asset Group, LLC, a California limited liability company ("Developer'). City and Developer are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." All terms defined in the Agreement shall have the same meaning when used herein. RECITALS A. Developer has an equitable interest in real property constituting 3.389 aces located in the City of Tustin, County of Orange, State of California, located at 13751/13841 Red Hill Avenue in the Red Hill Avenue Specific Plan (RHASP) (APN 9 500-141-09 & 500-141-10 ) as legally described on Exhibit A and depicted on Exhibit B attached to this Agreement (the "Property"). The Property is owned by WASL Tustin Investors, LLC ("WASL"), and Developer is in escrow to acquire the Property from WASL. B. Developer is proposing to develop the Property as a mixed-used development with 137 residential units (including density bonus units) and 7,000 square feet of commercial uses (as further defined in Section I below, the "Project"). C. In order to encourage investment in, and commitment to, comprehensive planning and strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864- 65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. D. On December 3, 1984, the City Council adopted Ordinance No. 923, codified at Section 9600 et seq. of the Tustin Code Regarding Development Agreements (the "Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance. E. Developer shall provide public benefits as provided in this Agreement as consideration for this Agreement. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 F. The following land use entitlements and agreements for the Project are being adopted and approved by the City Council concurrently with its approval of this Agreement ("Applicable Approvals"): (1) Final Approval of Residential Allocation Reservation (RAR) 2020- 0001, (114 base residential units). (2) Design Review (DR) 2021-0002_. (3) Development Agreement 2021-0001_. (4) Subdivision (SUB)2021-0001_/Vesting Tentative Tract Map (TTM) No._17822_ (5) Density Bonus and Voluntary Workforce Housing Incentive Agreement. G. City has determined that this Agreement and the Project are consistent with the City's General Plan and that the Development Agreement complies with the findings established by the Development Agreement Ordinance, in that the Agreement: I. Is consistent with the objectives, policies, general land uses and programs specified in the General Plan. 2. Is compatible with the uses authorized in the district in which the real property is located. 3. Is in conformity with the public necessity, public convenience, general welfare, and good land use practices. 4. Will not be detrimental to the health, safety, and general welfare. 5. Will not adversely affect the orderly development of Property. 6. Will have a positive fiscal impact on the City. H. On , 2021 City's Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. I. On , 2021, the City Council held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff,Developer, and members of the public. On , 2021, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. (the "Adopting Ordinance"), finding this Agreement to be consistent with the City of Tustin General Plan and approving this Agreement. and authorizing its execution. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 AGREEMENT NOW, THEREFORE, City and Developer agree as follows: 1. Definitions. In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 7.7 of this Agreement. "Adopting Ordinance" shall have the meaning ascribed in Recital I of this Agreement. "Agreement" shall mean this Development Agreement. "Agreement Date" shall mean the date this Agreement is recorded in the Office of the Orange County Recorder. "Applicable Approvals" shall have the meaning ascribed in Recital F of this Agreement. "CEQA" shall mean the California Environmental Quality Act (California Public Resources Code sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 et seq.), as the same may be amended from time to time. "City" shall mean the City of Tustin, a California city, and any successor or assignee of the rights and obligations of the City of Tustin hereunder. "City Council" shall mean the governing body of the City of Tustin. "City's Affiliated Parties" shall have the meaning ascribed in Section 9.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 9.1 of this Agreement. "Cure Period" shall have the meaning ascribed in Section 7.1 of this Agreement. "Damages" shall have the meaning ascribed in Section 7.3 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 7.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading;the construction of infrastructure and public facilities related to the Project,whether located within or outside the Property;the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Developer" shall mean Irvine Asset Group, LLC, a California limited liability company, and any successor or assignee to all or any portion of the right, title, and interest of the Project in and to ownership of all or a portion of the Property. "Development Agreement Ordinance" shall mean the Chapter 6, Part 1, Section 9600 et seq. of the Tustin City Code. "Development Agreement Statute" shall mean California Government Code sections 65864-65869.5, inclusive, as the same may be amended from time to time. "Development Exactions" shall mean the requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of development of the Project on the environment or other public interests, except as specifically excluded from such definition pursuant to Section 3.5.4. "Development Limitation" shall have the meaning ascribed in Section 2.3.3. "Development Plan" shall mean all of the land use entitlements, approvals and permits approved by the City for the Project on or before the Agreement Date,as the same may be amended from time to time consistent with this Agreement. Such land use entitlements, approvals and permits include, without limitation, the Development Regulations, to the extent provided under this Agreement, the Applicable Approvals and all conditions of approval and all mitigation measures approved for the Project on or before the Agreement Date. "Development Regulations" shall mean the following regulations as they are in effect as of the Effective Date and to the extent they govern or regulate the development of the Property: the General Plan; the Development Plan; and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications,procedures for obtaining required City permits and approvals for development, and similar matters that may apply to development of the Project on the Property during the Term of this Agreement that are set forth in the Red Hill Avenue Specific Plan and the Tustin City Code dealing with buildings and construction, subdivisions and inclusionary housing, and planning, zoning and density bonus. Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i)the conduct of businesses,professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or(v)the exercise of the power of eminent domain. "Effective Date" shall mean the date that is thirty (30) days after the date the Adopting Ordinance is approved by the City Council. Promptly after the Effective Date occurs,the Parties 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws"means all federal,state,regional,county,municipal,and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Effective Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use,generation,storage,disposal,release,treatment,or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et se., as amended ("CERCLA'); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., as amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended;the Federal Safe Drinking Water Act,42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et sea., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et seq. "General Plan" shall mean City's General Plan in effect on the Effective Date. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum-derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 7.1 of this Agreement. "Party" or "Parties" shall mean either City or Developer or both, as determined by the context. ,,Project" shall mean all on-site and off-site improvements that Developer is authorized and/or required to construct with respect to the Property, as provided in this Agreement, the Applicable Approvals, and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law in order to carry out the Development Plan. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 "Property" shall have the meaning ascribed in Recital A of this Agreement. "Public Benefits" means those public benefits to be provided by the Developer and the Project as described in Section 4 of this Agreement that comprise enforceable additional consideration to City for this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Developer is required to obtain to Develop the Project on and with respect to the Property after the Effective Date consistent with the Development Regulations and this Agreement, with the understanding that except as expressly set forth herein City shall not have the right subsequent to the Agreement Date and during the Term of this Agreement to adopt or impose requirements for any such Subsequent Development Approvals that do not exist as of the Agreement Date. "Term" shall have the meaning ascribed in Section 2.3.1 of this Agreement. "Termination Date" shall have the meaning ascribed in Section 2.3.2 of this Agreement. "Transfer" shall have the meaning ascribed in Section 10.1 of this Agreement. 2. General Provisions. 2.1 Binding Effect of Agreement; Authorized Use of Property. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement and the Development Regulations and the Applicable Approvals,which establish the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings on the Property and provisions for reservation and dedication of land for public purposes. For avoidance of doubt, the permitted uses on the Property are mixed use commercial and residential development in connection with such uses as described by the Applicable Approvals. 2.2 Developer Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. Developer and each person executing this Agreement on behalf of Developer hereby represents and warrants to City as follows: (i) that Developer has an equitable interest to acquire fee simple title to the Property as of the Effective Date; (ii) if Developer or any co-owner comprising Developer is a legal entity that such entity is duly formed and existing and is authorized to do business in the State of California; (iii) if Developer or any co-owner comprising Developer is a natural person that such natural person has the legal right and capacity to execute this Agreement; (iv) that all actions required to be taken by all persons and entities comprising Developer to enter into this Agreement have been taken and that Developer has the legal authority to enter into this Agreement; (v) that Developer's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Developer or any person or entity comprising Developer has to any third party;(vi)that neither Developer nor any co-owner comprising Developer is the subject of any voluntary or involuntary bankruptcy or insolvency petition; and (vii) that Developer has no actual knowledge of any 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 pending or threatened claims of any person or entity affecting the validity of any of the representations and warranties set forth in clauses (i)-(vi), inclusive, or affecting Developer's authority or ability to enter into or perform any of its obligations set forth in this Agreement. 2.3 Term. 2.3.1 The term of this Agreement (the "Term") shall commence on the Effective Date and shall extend until the Termination Date (as defined below). Following the Termination Date, this Agreement shall be deemed terminated and of no further force and effect; provided however, that said termination of the Agreement shall not affect any right or duty emanating from the Applicable Approvals or any Subsequent Development Approvals. 2.3.2 The "Termination Date" shall be the earliest of the following dates: (i) the fifth (5th) anniversary of the Effective Date,which may be extended pursuant to Sections 2.3.3 or 2.3.4 (ii); (ii) the date of termination of this Agreement by the City in accordance with any of Articles 6, 7 and/or 8 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; (iii) the date upon which Developer completes the Project and the Public Benefits in accordance with the terms of this Agreement, the Applicable Approvals and the Development Regulations, including Developer's complete satisfaction, performance, and payment, as applicable, of all Development Exactions,the issuance of all required final occupancy permits for residential units on the Property, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required public improvements; (iv) the date of entry of a final court judgment not subject to further appeal setting aside, voiding or annulling the adoption of the Adopting Ordinance or any of the Applicable Approvals; or (v) the date of adoption of a referendum measure overriding or repealing the City ordinance approving this Agreement. 2.3.3 Notwithstanding the Parties' expectation that there will be no limit or moratorium upon the Project's development or the issuance of building or other development related permits("Development Limitation")during the Term,the Parties understand and agree that various third parties may take action causing a de facto Development Limitation. Consequently, the Term and the obligations imposed pursuant to this Agreement and the expiration date of all Applicable Approvals shall be extended day for day for any delay arising from or related to a timely filed lawsuit challenging the validity or legality of the Adopting Ordinance,this Agreement, and/or any of the Applicable Approvals, until the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, and/or the Applicable Approvals, whether such finality is achieved by a final non-appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement. Each Party shall promptly notify the other Party to this Agreement upon learning of any Development Limitation. 2.3.4 Unless otherwise agreed by the City Council in its sole discretion, the maximum Term of this Agreement shall be five (5) years from the Effective Date, subject to (i) any tolling(s) of the Term, pursuant to Section 2.3.3 of the Agreement; or(ii) the issuance of one two (2)year mandatory automatic extension of the Term, if Developer has pulled the fiftieth(50th) building permit for the Project prior to the expiration of the Term. 2.3.5 Notwithstanding any provision to the contrary herein, in the event that, for any reason whatsoever, Developer fails to acquire fee simple title to the Property ("Fee Title") 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 within 180 days following the Effective Date ("Fee Title Deadline"), Developer or City may elect, in each Party's sole and absolute discretion, and upon written notice to the other Party within sixty (60) days following the Fee Title Deadline, to terminate this Agreement and the Applicable Approvals. Effective upon such termination by either Party, this Agreement and the Applicable Approvals shall be of no further force or effect. 3. Development of Project. 3.1 Utilization of Residential Allocation Reservation: Pulling Permits and Commencement of Construction. Following final approval of RAR 2020-0001 and the Applicable Approvals, i.e., Effective Date, all construction related permits for the Project, including demolition, grading, and building permits, must be obtained within 180 days ("First Post Entitlement Period"). Following building permit issuance, construction must commence within 180 days. Time extensions may be considered at the discretion of the City of Tustin Community Development Director("Director"). Notwithstanding the foregoing, the Director hereby agrees to automatically extend the time frame of the First Post Entitlement Period an additional 360 days if Developer pulls a demolition and precise grading permit prior to the expiration of the First Post Entitlement Period. Developer's precise grading permit application shall comply with all requirements specified in Tustin Municipal Code section 8909. City shall act in good faith to issue the precise grading permit within 90 days of Developer's precise grading application, provided Developer submits a complete application and is responsive to corrections. If the application is incomplete and requires corrections,the Director will notify Developer in writing of the remaining items or corrections and specify a timeline for Developer to respond to outstanding corrections ("Correction Notice"). Concurrently with the Correction Notice, and any subsequent Correction Notice(s), the First Post Entitlement Period deadline shall be automatically extended by thirty(30) days. The allocation of the 114 base residential units to the Project shall expire and the units redeposited into the Residential Allocation Bank for use by other projects if the construction related permits are not obtained within the required time limits or approved for extension; or the permits are not utilized, as evidenced by the commencement of construction, within 180 days following issuance of the permits. 3.2 Development Regulations; Developer's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals. 3.2.1 Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Developer shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations, the Applicable Approvals, the Workforce Plan and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals that are required for Development of the Project as of the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 the Project, and in this regard, as to future actions referred to in clauses (i)-(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Developer's rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the date on which the City Council approves the Adopting Ordinance. Concerning any denials of any Subsequent Development Approvals, the City shall base such denials solely upon an application of the Development Regulations, the Applicable Approvals or this Agreement. 3.2.2 Developer has expended and will continue to expend substantial amounts of time and money planning and preparing for Development of the Project. Developer represents and City acknowledges that Developer would not make these expenditures without this Agreement, and that Developer is and will be making these expenditures in reasonable reliance upon its vested rights to Develop the Project as set forth in this Agreement. 3.2.3 Developer may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, provided that the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic and, in addition, Developer may apply to City for approval of minor amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with the Tustin City Code. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 3.3 Other Governmental or Quasi-Governmental Permits. Developer shall apply for such other permits and approvals as may be required by non-City governmental or quasi-governmental agencies having regulatory jurisdiction over the Project(such as public utilities or special districts, or other federal or state resource agencies) to the extent required for the development of, or provision of, services and facilities to the Project as set forth in the Development Plan. The City shall cooperate with and assist Developer in obtaining such permits and approvals, and, where necessary in making application for such approvals or permits. Developer shall be solely responsible for all costs and shall be responsible for the processing of all such permits. 3.4 No Conflicting Enactments. Except to the extent City reserves its discretion as expressly set forth in this Agreement (including, without limitation, as set forth in Section 3.5 and Article 4 of this Agreement), during the Term of this Agreement, the City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Agreement Date to the extent it conflicts with this Agreement. In 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 Pardee Construction Co. v. City of Camarillo(1984) 37 Cal.3d 465,the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Developer shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Developer deems appropriate within the exercise of Developer's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement, the Applicable Approvals and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Agreement Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Developer's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 3.5 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 3.5 shall apply to and govern the Development of the Project on and with respect to the Property. 3.5.1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions,applications,notices,findings,records,hearings,reports,recommendations,appeals, and any other matter of procedure shall apply to the Property,provided that such procedural regulations are adopted and applied City-wide or to all other properties similarly situated in City. 3.5.2 Processing and Permit Fees. City shall have the right to charge and Developer shall be required to pay (a) all applicable processing and permit fees to cover the reasonable cost to City of(i) processing and reviewing applications and plans for any Applicable Approvals, Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, plan checking, site review and approval, administrative review, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting Project applications, plans and specifications, (ii) inspecting the work constructed or installed by or on behalf of Developer, and (iii) monitoring compliance with any requirements applicable to Development of the Project, in each case at the rates in effect at the time fees are due and (b) all costs incurred by the City performance of necessary studies and reports in connection with the foregoing and its obligations under this Agreement (collectively, the "City Processing Fees"). 3.5.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Developer has consented in writing to the regulations, shall apply to the Property. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 3.5.4 Development Exactions Applicable to Property. During the Term of this Agreement, unless otherwise prohibited or limited under state law, Developer shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s)that would apply to Developer and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction for the Project has been established and fixed by City in this Agreement or the conditions of approval for any of the Applicable Approvals or Development Regulations approved on or before the Effective Date, the City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Developer's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 3.5.5 hereinbelow). Notwithstanding any other provision of this Agreement, nothing in this Agreement is intended or shall be deemed to vest Developer against the obligation to pay any of the following(which are specifically excluded from the definition of"Development Exactions") in the full amount that would apply in the absence of this Agreement: (i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments,business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes,property taxes, sewer lateral connection fees,water service connection fees,new water meter fees, park fees and the New Construction Tax (as described in Section 2601 of the Tustin City Code.) 3.5.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Developer's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Developer does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Developer shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Developer shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state,or City law or regulation. In such negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of Developer as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Developer. City also agrees to process in a prompt manner Developer's proposed changes to the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation;provided, however,that the approval 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 of such changes by City shall be subject to the sole discretion of City, consistent with this Agreement. 3.5.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation,program, or official policy would result in the impairment of Developer's vested rights under this Agreement. 3.5.7 Uniform Building Standards. Existing and future building and building- related standards set forth in the uniform codes adopted by City and any local amendments to those codes adopted by the City,including without limitation building,plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 3.5.8 Public Works Improvements. To the extent Developer constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 3.5.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that City undertakes to provide such services to other similarly situated new developments in the City of Tustin as and when service connections are provided and service commences). 4. Public Benefits. 4.1 Provision of Public Benefits. Developer shall provide the following public benefits which shall constitute additional consideration for this Agreement for the benefit of the City ("Public Benefits"): 4.1.1 Public Amenities. Installation of two pedestrian plazas; one at the main entryway/drive aisle that flanks either side of the main drive aisle and a secondary plaza at the southwest corner of San Juan Avenue and Red Hill Avenue. 4.1.2 Off-site Parking. Provision of twelve (12) on-street vehicular parking spaces immediately adjacent to Red Hill Avenue in front of the proposed project. If the City opts 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 to widen the Red Hill Avenue roadway at a future date,Developer will be required to remove these twelve (12) parking spaces at its sole cost and expense and to the reasonable satisfaction of the City. 4.1.3 Gateway Signage. Construction and installation of gateway signage designating the corridor as the beginning of the Red Hill Avenue Specific Plan area at the southwest corner of San Juan Street and Red Hill Avenue. Said signage shall be subject to the review and approval by the Community Development Department. 4.1.4 Public Art. As addressed in Section 5.6.3 of the RHASP, Developer shall agree to provide an art program that may consist of a wall mural located on the south elevation of the Red Hill architectural tower of the Project facing the 55 Freeway("Mural"), or other public art, as described herein. The Mural and other public art is collectively the "Public Art". An art consultant, shall be responsible for selecting the Public Art for the Project ("Art Program Consultant"). The Art Program Consultant may use other consultants to perform portions of the Mural or other Public Art. Developer and the Art Program Consultant shall use reasonable efforts to solicit input from the City regarding the selection of the Public Art. Per Tustin City Code section 9404(b)(4),if a Mural is chosen as the Public Art,the Mural will require approval of a Conditional Use Permit. Other Public Art shall be subject to review and approval by the Director. Developer shall provide the Public Art application/submission to the City within 270 days of the issuance of the Project's first building permit, The Parties agree to act in good faith to agree upon the Public Art. If the Director does not approve the Public Art within 90 days of submission by Developer, then Developer, at its sole option, may choose to pay the City $100,000 to be used by the City to provide public art outside the Project site. Such payment shall constitute complete compliance with this Section 4.14. If the Parties agree upon the Public Art,the Public Art shall be completed prior to issuance of the Project's final certificate of occupancy. 4.1.5 Park Impact Fees. Pursuant to the provisions of the Tustin Municipal Code, Developer is obligated to pay park impact fees. City agrees that it shall use good faith efforts to invest the park fees paid by Developer to fund improvements to Pine Tree Park, Frontier Park and/or other park improvements within the Red Hill Avenue Specific Plan area. In addition, as specified in the Density Bonus and Voluntary Workforce Housing Incentive Agreement between the Parties,City agrees that it shall not collect park fees from Developer for the 6 Very Low income housing units of the Project. 4.2 Effect of Public Benefits Default. Notwithstanding any other provision of this Agreement to the contrary, if any payment under this Article 4 is not made or any obligation requiring performance is not timely performed by Developer. Subject to the provisions of Section 7.1 of this Agreement, the City may withhold further issuance of building permits or other approvals, including final maps, for the Project and the Property, until such time as Developer has made the required payment or undertaken the required performance. 5. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code Section 65869.5,this Agreement shall be enforceable 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate)that purports to apply to any or all of the Property. 6. Annual Review of Developer's Compliance With Agreement. 6.1 General. City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code Section 65865.1 and Tustin City Code Section 9617, as the same may be amended from time to time. Developer (including any successor to the owner executing this Agreement on or before the date the Effective Date) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 6.2 Developer Obligation to Demonstrate Good Faith Compliance. During each annual review by City, Developer is required to demonstrate good faith compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term. 6.3 Procedure. The City shall conduct its annual review of the Agreement in accordance with Tustin City Code Section 9617, as the same may be amended from time to time. 6.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of Developer's Default. The annual review procedures set forth in this Article 6 shall not be the exclusive means for City to identify a Default by Developer or limit City's rights or remedies for any such Default. 7. Events of Default. 7.1 General Provisions. In the event of any default, breach, or violation of the terms of this Agreement("Default'), the Party alleging a Default shall have the right to deliver a written notice (each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the Default relates to the failure to timely make a monetary payment due hereunder and thirty(30) days in the event of non-monetary Defaults) in which the Default must be cured(the "Cure Period"). Developer or City, as applicable, shall have the ability to contest the validity of the Default for a period of five (5) days after Developer or City receives the written Notice of Default. The Parties shall meet and confer in good faith for fifteen(15) days to attempt to resolve the validity of the Notice of Default. If the Parties are unable to resolve the validity of the Notice of Default after this meet and confer 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 period,the Cure Period timeframes specified in this Section 7.1 shall apply During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If however, a non-monetary Default cannot be cured within such thirty (30) day period, as long as the defaulting Party does each of the following: i. notifies the non-defaulting Party in writing with a reasonable explanation as to the reasons the asserted Default is not curable within the thirty(30) day period; ii. notifies the non-defaulting Party in writing of the defaulting Party's proposed course of action to cure the Default; iii. promptly commences to cure the Default within the thirty (30) day period; iv. makes periodic written reports to the non-defaulting Party as to the progress of the program of cure; and V. diligently prosecutes such cure to completion, then the non-defaulting Party shall grant in writing the defaulting Party such additional time as determined by the non-defaulting party as reasonably necessary to cure such Default. 7.2 City's Remedies. In the event of a Default by Developer under this Agreement that is not cured during the Cure Period, City shall be entitled to any or all of the following remedies: (1) Seeking mandamus or special writs, injunctive relief, or specific performance of this Agreement; (2) Modifications or termination of this Agreement; or (3) Seeking any other remedy available at law or in equity, provided, however, except as provided in Section 7.7 below with respect to recovery of legal expenses, City agrees and covenants on behalf of itself and it successors and assigns, not to sue Developer for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application or effect of this Agreement, or for general, special, compensatory, expectation, anticipation, indirect, consequential, exemplary or punitive damages ("Damages") arising out of or connected with any dispute,controversy,or issues regarding the application or effect of this Agreement,the Applicable Approvals, the Development Plan, the Development Regulations, any Subsequent Development Approvals, or any permits or entitlements sought in connection with development or use of the Property or Project, or any portion thereof. City acknowledges that Developer would not have entered into this Agreement if Developer could be held liable for Damages for any default or breach arising out of this Agreement and that City has adequate remedies other than Damages, to secure Developer's compliance with its obligations under this Agreement. Therefore, City agrees that Developer, its officers, employees and agents shall not be liable for any Damages and that this Section shall apply to any successor, assignee or transferee of the Developer. The limitation of Damages specified in this Section 7.3 does not preclude City from recovering from Developer all costs and expenses, including attorneys' fees, specified in Section 7.7 of this Agreement. Furthermore, City, in addition to or as an alternative to exercising the remedies in this Section 7.2, 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 in the event of a material default by Developer, may give notice of its intent to terminate or modify this Agreement pursuant to Tustin City Code Section 9618, in which event the matter shall be scheduled for consideration and review by the City Council. The decision of the City Council shall be final, subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b). 7.3 Developer's Remedies. In the event of a Default by that City under this Agreement that is not cured during the Cure Period, Developer shall be entitled to any or all of the following remedies: (1) Seeking mandamus or special writs, injunctive relief, or specific performance of this Agreement; (2) Modifications or termination of this Agreement; or(3) Seeking any other remedy available at law or in equity, provided, however, except as provided in Section 7.7 below with respect to recovery of legal expenses, Developer agrees and covenants on behalf of itself and it successors and assigns, not to sue City for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application or effect of this Agreement, or for general, special, compensatory, expectation, anticipation, indirect, consequential, exemplary or punitive damages ("Damages") arising out of or connected with any dispute,controversy,or issues regarding the application or effect of this Agreement,the Applicable Approvals, the Development Plan, the Development Regulations, any Subsequent Development Approvals, or any permits or entitlements sought in connection with development or use of the Property or Project, or any portion thereof. Developer acknowledges that City would not have entered into this Agreement if City could be held liable for Damages for any default or breach arising out of this Agreement and that Developer has adequate remedies other than Damages, to secure City's compliance with its obligations under this Agreement. Therefore, Developer agrees that City, its officers, employees and agents shall not be liable for any Damages and that this Section shall apply to any successor, assignee or transferee of the Developer. The limitation of Damages specified in this Section 7.3 does not preclude Developer from City all costs and expenses, including attorneys' fees, specified in Section 7.7 of this Agreement. 7.4 Waiver. Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default. 7.5 Additional City Remedy for Developer's Default. In the event of any Default by Developer, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Developer's Default without recourse from Developer or its successors or assigns. 7.6 No Personal Liability of City or Developer Officials; Employees, or Agents. No City or Developer official, employee, or agent shall have any personal liability hereunder for a Default by City or Developer of any of its obligations set forth in this Agreement. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 7.7 Recovery of Legal Expenses by Prevailing Party in Any Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure Section 1033.5 or California Civil Code Section 1717 in the absence of this Agreement. These costs and expenses include court costs, expert witness fees, attorneys' fees, and costs of investigation and preparation before initiation of the Action. The right to recover these costs and expenses shall accrue upon initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. The maximum hourly rate for attorneys which are recoverable under this Section 7.7 is $200/hour. 8. Force Majeure. Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. Performance by any Party of its obligations hereunder shall be excused and the required date for performance thereof shall be extended day for day during any period of "Permitted Delay" as hereinafter defined. For purposes hereof, Permitted Delay shall mean delay beyond the reasonable control and without the fault of the Party claiming the delay (and despite the good faith efforts of such Party). Any Party claiming a Permitted Delay shall notify the other Party (or Parties) in writing of such delay within 30 days after the commencement of the delay, which notice shall specify the nature and estimated length of the Permitted Delay ("Permitted Delay Notice"). An extension of time hereunder for any Permitted Delay shall be for the period of the Permitted Delay and shall be deemed granted if the Party receiving the Permitted Delay Notice does not object to such extension in writing, as not complying with the provisions of this Section, within 15 days after receiving the Permitted Delay Notice. Upon such an objection, the Parties shall meet and confer within 30 days after the date of the objection in a good faith effort to resolve their disagreement as to the existence and length of the Permitted Delay. 9. Indemnity Obligations of Developer. 9.1 Indemnity Arising From Acts or Omissions of Developer. Except to the extent caused by the intentional misconduct or actively negligent acts, errors or omissions of City or one or more of City's officials, employees, agents, attorneys and contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorneys' fees, expert witness fees and court costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts,omissions, or operations of Developer or Developer's officers, agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Developer relating to the Property or pursuant to this Agreement. City shall have the right to select and retain counsel to defend any Claim filed against City and/or 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 any of City's Affiliated Parties, and Developer shall pay the reasonable cost for defense of any Claim. The indemnity provisions in this Section 9.1 shall be effective on the date on which the Adopting Ordinance is approved by the City Council and shall survive the Termination Date. Notwithstanding the foregoing, Developer's indemnity obligations specified in this Section 9.1 regarding Developer's design, construction or dedication of public improvements shall terminate one (1)year after City accepts Developer's offer of dedication of public improvements. 9.2 Third Party Litigation. In addition to its indemnity obligations set forth in Section 9.1, Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement,the Adopting Ordinance, the Development Plan, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit or entitlement granted pursuant to this Agreement. Said indemnity obligation shall include, without limitation, payment of attorney's fees, expert witness fees, and court costs. City shall promptly notify Developer of any such Claim and City shall cooperate with Developer in the defense of such Claim. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in Developer's indemnity obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to minimize the total litigation expenses incurred by Developer. City's separate counsel's billing rates shall be identical to the rates City pays for its typical municipal litigation rates for legal challenges of the variety being defended. Provided that Developer has then paid in full all sums due to the City or its counsel incurred pursuant to this Section and otherwise fully performed its indemnity obligations hereunder, Developer shall be entitled to retain the same. The indemnity provisions in this Section 9.2 shall be effective on the date on which the Adopting Ordinance is approved by the City Council and shall survive the Termination Date. 9.3 Environmental Indemnity. In addition to its indemnity obligations set forth in Section 9.1, from and after the date on which the Adopting Ordinance is approved by the City Council, Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation attorney's fees, expert witness fees, and court costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Developer in connection with Developer's Development of the Project. The aforementioned indemnity shall not apply (i)to any pre-existing Hazardous Substance which may have existed prior to Developer's acquiring fee simple title to the Property;(ii)if City was responsible for the creation of the Hazardous Substance; or (iii) if the City had prior actual knowledge of the existence of the Hazardous Substance as of the date of the Effective Date. The indemnity provisions in this Section 9.3 shall be effective on 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 the date on which the Adopting Ordinance is approved by the City Council and shall survive one (1) year beyond the Termination Date. 9.4 Labor Laws. Developer shall carry out the construction of the Project, including all improvements, in conformity with all Development Regulations including all applicable federal and state labor laws and regulations and shall investigate the applicability of and, if and to the extent applicable, pay prevailing wages meeting the requirements of such laws and regulations; provided that Developer reserves the right to reasonably contest such laws and regulations. Developer hereby agrees that, with respect to the Project, Developer shall be fully responsible for determining whether the foregoing wage requirements are applicable and agrees to indemnify,defend and hold the City and its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns free and harmless from and against any and all Claims arising from or related to compliance by Developer or Developer's officers, directors, employees, agents, representatives, consultants and/or contractors (at every tier) in construction of the Project with the prevailing wage requirements imposed by any applicable federal and State labor law. 10. Assignment. 10.1 Permitted Transfers. Developer shall have the right, upon approval of City, which approval shall not be unreasonably withheld, to sell, transfer or assign (hereinafter, collectively, a "Transfer") Developer's interest in this Agreement and the Property, in whole or in part, to a third party acquiring an interest or estate in the Property or any portion thereof(such successor, a"Permitted Transferee") and such successor, as of the effective date of the Transfer, shall become the "Developer" under this Agreement; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and each Transfer shall be made in strict compliance with the conditions precedent set forth in Sections 10.2 and 10.3. City shall promptly consider any Transfer request submitted by Developer.Notwithstanding the foregoing,Developer shall have the right to Transfer its interest in the Agreement to a "Developer Affiliate". A "Developer Affiliate" is an entity or person that is directly or indirectly controlling, controlled by, or under common control with Developer. In the case of a Transfer to a Developer Affiliate, Developer shall provide written notification to City prior to the completion of such a Transfer. 10.2 City Approval of Transferee. Prior to the completion of any proposed Transfer, Developer (as transferor) shall: i. notify City, in writing, of such proposed Transfer and, in order to permit the City to make an informed decision to approve or disapprove the Transfer, provide to the City such financial statements and evidence of the proposed Transferee's fitness, experience and ability (or that of its senior managerial personnel) to comply with the obligations assumed; and 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 ii. deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Developer and in a form subject to the reasonable approval of the City Attorney of City(or designee), pursuant to which the transferring Developer assigns to the successor Developer and the successor Developer assumes from the transferring Developer all of the rights and obligations of the transferring Developer with respect to the Property, or interest in the Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed outside of the Property so Transferred that are a condition precedent to the successor Developer's right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property, or interest in the Property, no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Developer with respect to the balance of the Property. 10.3 Ongoing Liability of Transferor. Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and severally liable to City, together with the successor Developer, to perform all of the transferred obligations set forth in or arising under this Agreement unless there is full satisfaction of all of the following conditions, in which event the transferring Developer shall be automatically released from any and all obligations with respect to the portion of the Property so Transferred: (i) the transferring Developer no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Developer is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both,would constitute a Default hereunder; (iii)the transferring Developer has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in Section 10.2(b); and (iv) the successor Developer either(A)provides City with substitute security equivalent to any security previously provided by the transferring Developer to City to secure performance of the successor Developer's obligations hereunder with respect to the Property, or interest in the Property, or the portion of the Property so Transferred or(B)if the transferred obligation in question is not a secured obligation,the successor Developer either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor Developer has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. In the case of partial Transfers, a default under this Agreement by Developer shall not be considered or acted upon by the City as a default by the Permitted Transferee and shall not affect the Permitted Transferee's rights or obligations hereunder. Likewise, a default by a Permitted Transferee shall not be considered or acted upon by the City as a default by Developer and shall not affect Developer's retained rights and obligations hereunder. Notwithstanding the foregoing, if a breach of this Agreement involves an obligation jointly held by both Developer and a Permitted Transferee, the City may avail itself of the remedies specified in Sections 7.1 and 7.2 against both the Developer and Permitted Transferee. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 11. Mortgagee Rights. 11.1 Encumbrances on Property. The Parties agree that this Agreement shall not prevent or limit Developer in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 11.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,no breach of this Agreement shall defeat,render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 11.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 11.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Developer or other affirmative covenants of Developer, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City,that performance shall continue to be a condition precedent to City's performance. 11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 6 of this Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and within sixty (60) days after receiving a Notice of Default with respect to a non-monetary Default. If the Mortgagee can only remedy or cure a non-monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non-monetary Default within sixty(60) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the sixty (60)-day period. In the case of a non-monetary Default that cannot with diligence be remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non- monetary Default within sixty (60) days and diligently prosecutes the cure to completion. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 12. Miscellaneous Terms. 12.1 Notices. Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited in the United States mail, certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Manager With a copy to: Woodruff, Spradlin Smart 555 Anton Boulevard, Ste 1200 Costa Mesa, CA 92626 Attn: David E. Kendig, Esq. TO DEVELOPER: Irvine Asset Group, LLC 4000 MacArthur Boulevard, East Tower, Suite 600 Newport Beach, CA 92660 Attn: Craig Swanson With a copy to: Allen Matkins, LLP 1900 Main Street, 5t'Floor Irvine, CA 92614 Attn: John Condas, Esq. Either Party may change the address stated in this Section 12.1 by delivering notice to the other Party in the manner provided in this Section 12.1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of. (i) the date received or (iii) three business days after deposit in the mail as provided above. 12.2 Project as Private Undertaking. The Development of the Project is a private undertaking. Neither Party is acting as the agent of the other in any respect, and each Party is an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner of the property. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 12.3 Cooperation. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute,with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 12.4 Estoppel Certificates. At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case,then the other Party shall describe the nature and amount of the actual or prospective Default. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty(30) days following receipt. 12.5 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 12.6 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 12.7 Waiver. The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 12.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 12.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings,both written and oral,between the Parties with respect to the subject matter addressed in this Agreement. 12.10 Severability. The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of the benefits of this Agreement if any of Developer's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Developer shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Developer's obligations under this Agreement. The provisions of this Section 12.10 shall be effective on the date on which the Adopting Ordinance is approved by the City Council and shall survive the Termination Date. 12.11 Developer Deposit. Developer shall, within ten (10) business days following approval by the City of this Agreement, and as a condition to the effectiveness of this Agreement, deliver to the City in cash or cash equivalent funds, a deposit in the amount requested by the City based on the City's estimated City Processing Fees including staff time required to complete plan check and perform inspections (the "City Costs Deposit"),which amount shall be deposited by City in an account in a bank or trust company selected by the City and with no requirement that such account be interest bearing. If any interest is paid on such account, such interest shall accrue to any balances in the account for the benefit of the City. If at any time prior to the issuance of the final certificate of occupancy for a residential unit on the Property, the amount of funds in the City Costs Deposit account is depleted below Ten Thousand Dollars ($10,000), Developer shall be required to pay to the City each time an additional Twenty Thousand Dollars ($20,000) or such other amount as the City may specify as required in City's estimation to cover the cost of City Processing Fees, including as required to complete plan check and perform inspections, which shall be credited to the City Costs Deposit. Each such payment shall be deposited by the City into the City Costs Deposit account and shall be applied to City Processing Fees. The City Costs Deposit has been established to fund the City Processing Fees and may be used by the City for such purpose, and shall be depleted accordingly. Immediately upon incurring any City Processing Fees or costs or receipt of an invoice from third parties for same,the City shall have the right to deduct the amounts due it on account thereof from the City Costs Deposit The City Costs Deposit shall be retained by the City until the date of issuance of the final certificate of occupancy for a residential unit on the Property and the remaining amount of the City Costs Deposit then held by the City, if any, shall be promptly returned by the City to Developer thereafter, provided that the return of such funds 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 shall not terminate the obligations of Developer to pay all City Processing Fees arising or incurred prior to issuance of the final certificate of occupancy for the final residential unit on the Property. Developer shall pay any outstanding amounts due with respect to City Processing Fees to the City within thirty (30) calendar days following receipt of an invoice from the City therefor, provided that the City shall first apply the amount of the City Costs Deposit, if any, then held by it in satisfaction of such invoice, and shall reflect the amount of such credit on the invoice. 12.12 Construction. This Agreement has been drafted after extensive negotiation and revision. Both City and Developer are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Developer had the opportunity to be so represented and voluntarily chose to not be so represented. City and Developer each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning, and no principle or presumption of contract construction or interpretation shall be used to construe the whole or any part of this Agreement in favor of or against either Party. 12.13 Successors and Assigns; Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof, and(iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 12.13 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Article 10 or is a Permitted Transferee under this Agreement. 12.14 No Third Party Beneficiaries. The only Parties to this Agreement are City and Developer. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 12.15 Applicable Law and Venue. This Agreement shall be construed and enforced consistent with the internal laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 12.16 Section Headings. All Section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 12.17 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A, B C, and D are attached to this Agreement and incorporated by this reference as follows: [*** to be updated***] EXHIBIT DESCRIPTION DESIGNATION A Legal Description of Property B Site Plan C On Street Parking Plan D Gateway Sign 12.18 Recordation. The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code Section 65868.5. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. 12.19 Authority to Execute. The person or persons executing this Agreement on behalf of each Party warrants and represents that he or she/they have the authority to execute this Agreement on behalf of such Party and warrants and represents that he or she/they has/have the authority to bind such Party to the performance of its obligations hereunder. 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 12.20 Administrative Amendments. Any amendment to this Agreement which does not relate to the Term, permitted uses of the Project, provisions for the utilization of Residential Allocation Reservation, Development Exactions, the conditions, terms, restrictions and requirements relating to the Applicable Approvals or Public Benefits shall be considered an "Administrative Amendment". The City Manager or his/her 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 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. [Signature page follows] 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "DEVELOPER" Irvine Asset Group, LLC, a California limited liability company By: Craig Swanson, [insert title] "CITY" CITY OF TUSTIN By: Letitia Clark, Mayor ATTEST: Erica N. Yasuda, City Clerk APPROVED AS TO FORM: David E. Kendig, City Attorney 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of Orange ) On before me, a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of Orange ) On before me, a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [Need to Insert] APN: 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 EXHIBIT B SITE PLAN [Need to Insert] 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 EXHIBIT C STREET PARKING PLAN 1596301.2 DocuSign Envelope ID:818C62A2-B3AB-4852-9CDB-48A2C7B26504 EXHIBIT D GATEWAY SIGN 1596301.2